PLJ 1996 Judgments

PLJ 1996 Cr PLJ 1996 AJK 186 (DB) Present: khawaja muhammad saeed AC J and syed manzoor H. gilani, J. israr HussAiN -Petitioner versus AZAD GOVT. OF THE STATE OF JAMMU AND KASHMIR THROUGH ITS CHIEF SECRETARY, MUZAFFARABAD, and 12 others-Respondents W.P. No. 92/92, accepted on 16.5.1996. ( i ) Aggrieved person- —-Aggrieved person-Determination of--Question of-Petitioner is M.A. in Social Works, a qualification which is compatable with posts in dispute and had applied for his appointment-Thus by no stretch of imagination can it be said that petitioner is not an aggrieved person-Notwithstanding the fact of his having applied for a job in the Department, thus being directly an aggrieved person, he and every other state subject has a right to seek employment in service of state if qualified according to rules and for that purpose, invoke jurisdiction of court to direct the authority performing functions in connection with that employment in that branch of service, to do that which he is required by law to do, and seek declaration that proceedings taken by such authority against law be declared as without lawful authority and of no legal effect-Petitioner has also a right to ask any person holding or purporting to holding a public office in affairs of state to show under what authority of law he claims to hold that office-Petitioner, thus, view from any angle is an aggrieved person and has rightly invoked jurisdiction of court. [P. 192] A (ii) AJK, Civil Servants (Appointments and Conditions) of Service Rules, 1977-- —-R. 24 read with Sections 22 and 23 of AJK Civil Servants Act, 1976--AJ hoc appointment-Question of-Whether Government can keep on extending period of ad hoc appointment for indefinite period without referring case for regular appointment to Public Service Commission-­Question of~Rules regulating ad hoc appointments requiring forwarding of requisition to Public Service Commission, advertising posts etc. have been relaxed~No provision of Act authorises Government to relax rules for enabling a person to be appointed in Government Service-Section 23 of Act, authorizes Government to frame rules to carry out purpose of Act-This power does not include in itself to frustrate provisions or purpose of Act-Purpose of Rule 24 seems only to carry out spirit of section 22 of Act, which enables Government to remove ardship in case of a civil servant, not to enable it to make wholesale appointments by relaxing rules-Individual cases are exceptions and exceptions are always rare—Thus, relaxation of rules for making appointments is without lawful authority-Petition accepted. [P. 196] C & D PLJ 1993 SCAJ&K- Irel . (iii) AJK Interim Constitution Act, 1974-- —-S. 44-Constitutional writ- Scop e/jurisdiction etc. of-Petitioner has not filed writ of quo warranto , thus cannot seek that writ by way of arguments in Court-Question of-Form, forum or nature of a writ is not specified by Constitution U/S. 44-Writ is a direction or order of High Court against an authority performing functions in connection with affairs of state to do an act in accordance with law or refrain from doing some thing which is not allowed by law or declare an action as without lawful authority etc.-Granting of relief is power of court and it can grant any relief which flows from pleadings of parties, notwithstanding relief asked by a party-Only exception which can inhibit Court in doing so is that order of Court should not perpetuate injustice. [P. 192] B Chaudhry M. Ibrahim Zia , Advocate for Petitioner. Sardar M. Suleman Khan, AAG for Respondent No. 1 to 3. M/s. Raja Muhammad Hanif Khan and Sheikh Abdul Aziz , Advocate for Respondent No. 4 to 20. Date of hearing: 6.5.1996. order Syed Manzoor H. Gilani , J.-Through this petition filed under Sec. 44 of Azad Jammu and Kashmir Interim Constitution Act, 1974, the appointments of Respondents 4 to 20 against different posts in the Social Welfare Department are challenged and a direction is sought to respondents 1 to 3 for making the appointments against the posts on the basis of meritcum-fitness in accordance with law. 2. The facts which gave rise to the present petition as stated in the petition are that petitioner who is MA Social Work, on coming to know that the Government of Azad Jammu and Kashmir has planned to establish a fullfledged Department for Social Welfare, made an application for appointment as Assistant Director on 27-7-1992 before Mr. Riaz Ahmed Khan, the then Secretary of the Department. According o the petitioner, 5 posts of Assistant Directors in B-17 were created vide Notification of the Government dated 25-4-1992 and subsequently vide another Notification of the Government dated Aug 08,1992,13 posts of Social Welfare Officers in B- 17 were created. It is alleged that the Government without framing any rale for the posts and without advertising the posts, made appointment of respondents 4 to 20 against the posts. Respondents 4 to 7 were appointed as Assistant Directors in B-17 on ad hoc basis. The order of ad hoc appoint of respondent No. 4 was issued from the Secretariat of Social Welfare on 23-6- 1992, while the orders of ad hoc appointments of Respondents 5 to 7 as Assistant Directors were issued on 5-8-1992 through separate notifications. Respondents 8 to 17 were appointed on ad hoc basis in B-17 through a single order issued by the Social Welfare Secretariat on 8-8-1992, while respondents 18 to 20 were appointed under the order of Govt issued by Social Welfare Department on 13-8-1992. 3 The respondents entering into rejoinder objected to the maintainability of the petition on the ground that the posts of Assistant Directors and Social Welfare Officers fell in the quota of Districts Bagh , Poonchh , Mirpur and Kotli , while District Muzaffarabad , to which the petitioner belongs, did not have any quota. It is further alleged in the written statement that it is the prerogative of the Government to appoint any person on any post. On facts, it is alleged that the petitioner had never applied for any of the posts against which the appointment of respondents 2 to 20 is made, neither could he be appointed, as no post fell in quota for District Muzaffarabad to which the petitioner belongs. It is further alleged in Para 10 of the written statement that the ad hoc appointments have been regularized through an enactment of the Assembly. The petitioner denied all the contentions raised in the written statement through replication. 4. We have heard the learned Advocates for the parties. The learned Advocate for the petitioner arguing the case, inter alia contended : that the appointments to Grade 16 and above have to be made on the recommendations of Public Service Commission after advertising and conducting test for the posts by the Commission; that no post in the service of Government can be filled in without rules; that the ad hoc appointment against the posts can be made only whe .1 the rules are framed and the posts are referred to the Public Service Commission. All the above requirements are not fulfilled in the case of respondents 4 to 20. It is further contended : that the appointment of respondents 4 to 20 is malafide and an outcome of favouritism and nepotism, as, according to the learned Advocate, none of the respondents is qualified in the field for which he/she is appointed; and that the posts of Social Welfare Officers were filled in on the same date when the posts were created.The learned Advocate for the petitioner placed reliance upon Sec. 4 of the Civil Servants Act, 1976 (Hereinafter to be referred as Act), rule 23 of the Azad Jammu and Kashmir, Civil Servants (Appointments and Condition of Service) Rules, 1977 (Hereinafter to be referred as Rules), the Notification of the Government dated 20-6-1983 (Hereinafter to be called as Notification), besides the cases reported as Azad Gout and others v. Muhammad Yunus Tahir and others (1994 SCR 341) = (1994 PSC 1198); Sheikh Manzoor Ahmed v. Azad Gwt and others (1994 SCR 297) = 1994 PSC 1198; (Muhammad Latif Khan v. AIM Hussain Bukhari & Others) PLJ 1993 SC AJ&K 1; and an unreported judgment of the Supreme Court in Civil Appeal No. 66 of 1995 captioned as Dr. Mehmood Hussain Kiani v. Azad Govt and others; and PLJ 1995 AJK 21. 5. Raja Muhammad Hanif Khan Advocate argued the case on behalf of respondents and Sheikh Abdul Aziz and Additional Advocate General relied upon his arguments. It is contended by the learned Advocate for respondents that the petitioner is not an aggrieved person, hence the petition is not maintainable. It is further contended that the petitioner has not filed the writ of quowarranto against the respondents, hence the arguments of the learned Advocate for the petitioner on those lines do not merit consideration. It is further'contended that the posts are temporaiy in nature due to conditions at the cease fire line, and the appointment against the posts on ad hoc basis is the prerogative of the Government, hence the petition is beyond the purview of the High Court. It is also contended that the rules for the posts have already been framed in 1993 called as " Azad Jammu and Kashmir Social Welfare and Women Development Service Rules, 1993". 6. It may be placed on record that the arguments in the case were heard on 26-6-1993 by one of us (author of the Judgment) and the Advocate General was directed to place before the Court the appointment files of respondents 4 to 20. The Department of Social Welfare was again directed to place before the Court any other file with respect to the appointment of respondents if any, available with the Government. The files were sent and are before the Court. After receipt of the files from the Department, the file of the Court was referred to the learned Chief Justice for reconstitution of bench or constitution of larger bench for the reasons stated in the order of the Court dated 20-7-1993. Since then, the file remained pending for one _ reason or the other before the learned outgoing Chief Justices. The Bench was again reconstituted on 1-12-1994 consisting of myself and the learned ( Retd .) Chief Justice. Arguments in the case could again not be heard till May 06, 1996 when the arguments were heard and the judgment was reserved. 7. After hearing the learned Advocates for the parties, we have gone through the record of the case as well as the law cited by the learned counsel for the parties. In the instant case, the admitted facts are that the ad hoc appointments against the posts were made at a time when no rules existed for the posts, secondly that the posts were not referred to the Public Service Commission, neither they have so far been referred; thirdly that the rules for the posts for the first time were framed in June, 1993; and fourthly that the appointments against the posts on ad hoc basis have not been made in accordance with the procedure provided fqr ad hoc appointments and ten posts of Social Welfare Officers were filled in on the same date when these were created. 8. The legal position regarding the direct appointments to the civil posts has been settled by the Superior Courts in Azad Jammu and Kashmir and there remains hardly any issue to be decided afresh, except as to whether the Government can keep on extending period of ad hoc appointment for indefinite period without referring the case for regular appointment to the Public Service Commission ? 9. Under Sec. 4 of the Act, the appointment to the civil service or to a civil post in connection with the affairs of the Government shall be made in the prescribed manner. The manner prescribed for appointment against the posts is provided by Rules , 1977 . Under rule 16 of the Rules, initial appointment to the posts in B-16 to 20 has to be made on the basis of examination and test to be conducted by the Public Service Commission, except those posts which are stated to be out of the purview of the Public Service Commission. Rule 23 of the Rules relates to the ad hoc appointments, which reads as follows : "23. (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post. (2) After forwarding a requisition to thi selection authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding six months pending nomination of candidate by the selection authority. Provided that: (1) the vacancy is advertised properly in the newspapers ; (2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the posts; (3) the selection is made on the basis of merit determinedby objective criteria; (4) the appointment order certifies that a requisition has been sent to the selection authority; and (5) the appointment is made subject to revocation at any time by the competent authority; Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade". 10 . The Government has, through Notification dated 20-6-1983 issued from the office of Chief Secretary, under No. Admn/A-27(46)/83 imposed upon itself further conditions regulating the ad hoc appointments. The said Notification is reproduced as follows : 11. Before adverting to the merits of the case, the objections raised by the learned counsel for the respondents that the petitioner is not an aggrieved person etc. have to be attended and disposed of. The petitioner is admittedly MA in Social Works, a qualification which is compatable with the posts in dispute and had applied for his appointment in the Department, as certified by the formal Secretary of the Department Mr. Riaz Ahmed Khan. It is born out from the record, placed on file by the respondents, that the petitioner had been striving for the job. Thus by no stretch of imagination can it be said that the petitioner is not an aggrieved person. Notwithstanding the fact of his having applied for a job in the Department, thus being directly an aggrieved person, he and eveiy other State Subject has a right to seek employment in the service of the State if qualified according to the rules and for that purpose, invoke the jurisdiction of the Court to direct the authority performing functions in connection with that employment in that branch of the service, to do that which he is required by law to do, and seek declaration that proceedings taken by such authority against law be declared as without lawful authority and of no legal effect. The petitioner has also a right to ask any person holding or purporting to hold a public office in the affairs of Azad Kashmir to show under what authority of law he claims to hold that office. The petitioner, thus, viewed from any angle is an aggrieved person and has rightly invoked the jurisdiction of the Court. 12. The other objections that the petitioner has not filed the writ of quowarranto , thus cannot seek that writ by way of arguments in the Court The form, forum or nature of a writ is not specified by the Constitution under Sec. 44 Writ is a direction or order of the High Court against an authority performing functions in connection with the affairs of Azad , Kashmir to do an act in accordance with law or refrain from doing some thing which is not allowed by law or declare an action as without lawful authority etc. The nature of the direction may vary from case to case and Court is competent to issue writ in any form it deems proper in the circumstances of a case. Granting of relief is the power of the court and it can grant any relief which flows from the pleadings of the parties , notwithstanding the relief asked by a party. It is infact the duty of the Court to enforce the law of the land and pass such orders and in such form as give effect to the provision of law and thereby ensure the rule of law. The only exception which can inhibit the Court in doing so is that the order of the Court should not perpetuate injustice. The Superior Courts are the Courts of justice and have to do justice for the nation, the subject or the applicant inddently gets the relief, while the machineiy of the State gets the guidance for future adherence on the subject. Thus the objection is not tenable under law. 13. Last objection that the posts are temporary and created due to conditions at cease fire line and that it is the prerogative of the Government to make appointments against them, is misconceived under the law. The authority of the Government to make ad hoc appointments against the posts is not disputed at all, but the Government is bound to make the appointments in accordance with law. It is the violation of law in making the impugned appointments which gave cause of action to the petitioner. The appointments have no nexus with the conditions at the cease fire line, neither has any explanation been furnished in pleadings or at bar. It may be slogan for political consumption but cannot be digested in the Court of law when rule of law is sought to be enforced. 14. As stated in Para 7 above, there were no rules regulating the impugned appointments at the time when the ad hoc appointments were made; Government has not forward the requisition to the Public Service Commission uptill now; no reason is on record to state as to what public interest necessitated the Government to make the ad hoc appointments without having rules for them and without forwarding them to the Public Service Commission; the posts have never been advertised. The above state of facts do not justify the appointments and all the appointments having been made against the provisions of law regulating the ad hoc appointments, the action is without lawful authority and of no legal effect. It will be proper to make reference to the following dictum of the Supreme Court of Azad Jammu and KAshmir , laid down in "Dr. Mehmood Hussain Kiani v. Azad Govt and others" (Civil Appeal No. 66 of 1995): "The reading of the rule provides that even the ad hoc appointment is to be made in the interest of public and for a limited period of 6 months and must be made on the basis of merit and the same can only be made after requisition has been sent to the Public Service Commission. The first step to be taken in this regard is to forward a requisition to the selection authority and then under sub-rule (4) the appointment order should contain a certificate that a requisition has been sent to the selection authority. We regret to point out that time and again despite the observations of this Court, ad hoc appointments are made in flagrant violation of law and contumacious disregard of the relevant rules. This practice is highly deplorable and has to be depreciated. In the instant case the appellant before us has no specifically challenged the method of ad hoc appointment of respondents Nos. 2 to 21. There is a general allegation that the appointments have not been made in accordance with the relevant law and rules. Whether the ad hoc appointments were made keeping in view the provisions of Rule 23 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 and whether the persons appointed where duly qualified or their selection has been made on the basis of objective criteria or that the requisition has been sent to the selection authority are all questions of fact which cannot be gone into while exercising the appellate jurisdiction but at the same time we want to observe that in future the Government must ensure that even the ad hoc appointments are made strictly in conformity with the relevant rules and any departure or deviation from the relevant provisions of law would tantamount to perpetuating a grave injustice to those candidates who have the requisite qualification but unfortunately have no political backing or background. Indeed the discretion for making ad hoc appointments vests with the Government but the discretion must be exercised in accordance with the provisions of relevant rules or law and it must appear to be just and equitable". 14. A paradoxical part of the impugned appointments is revealed by the perusal of the personal files of the respondents. The appointment of none of the respondents on ad hoc basis is sanctioned by the appointing authority, be it the Prime Minister or Minister Incharge , even on the simple applications of the appointees. In case of respondent No. 4, the Minister Incharge of the Department has simply ordered on 3-6-1992 as In case of respondent No. 5, the Minister Incharge on the application of respondent has simply written on 4-6-1992 as In case of respondent No. 6, the Prime Minster has written on her application as : " and Minister Incharge has written " & In case of respondent No. 7, the Minister Incharge on 4-6-1992 has ordered on her application In case of respondent Nos. 8, 9, 10, 12, 13 (Photo copy); 14 and 19, the Prime Minister has ordered on 2-8-1992 (Before creation of posts )-" In case of respondent No. 20, no date is written under the signatures of the Prime Minster, but it contains same order i.e . : In case of respondent No. 11, the Prime Minister has orders on 5-8- 92 (Before creation of posts) The personal file of respondent No. 15 does not contain even application for appointment nor any formal order on the Noting side. The application for appointment finds place in the personal file of respondent No. 16, but without any further order or note thereon. Similarly, the personal file of Respondent No. 17 does neither contain the application for appointment nor any Note or order by any competent authority. The personal file of respondent No. 18 contains application with a Note thereon that :'' J&l . " beneath the Note, the words " are written, but without signatures of the Prime Minister. No further order or note is written in this file. 15. The Department has, alongwith the personal files of the respondents referred above, sent the personal files of Sajad Mahmood , Muhammad Anwar Javed and Syed Sajjad Hussain Shah. The appointment f these persons has not been challenged and they are not respondents before the Court, hence these are not discussed, but there cases are also not different from those discussed above. 16. The above state of affairs in making the appointments to the civil service is a fraud upon the Constitution, judgments of the Supreme Court as well as the law regulating the civil service. It is highly deplorable that the appointments are made in a way which speak of the mockery of the system. 17. As stated somewhere above, the legal position stands settled by the judgment of the Superior Courts in Azad Kashmir that no appointment in the civil service can be made in Grade 16 and. above without the posts being referred to the Public Service Commission, if not otherwise out of the purview of the Public Service Commission. All the posts, which the respondents Nos. 4 to 20 are holding, are the posts carrying Grade-17 which have to be filled in by the competent authority after a requisition having been forwarded to the selection authority i.e. Public Service Commission and only in public interest, that too, for six months only. 18. A perusal of the orders of the some of the respondents reveals that the rules regulating the ad hoc appointments requiring the forwarding of the requisition to the Public Service Commission, advertising the posts etc. have been relaxed. Rule 24 of the Rules, authorizing the relaxation reads : "Government may, for special reason, relax any of the rules in any individual case". 19. The Rules have been framed by the Government under the authority of the Act. No provision of the Act authorizes the Government to relax the rules for enabling a person to be appointed in the Government service. Section 23 of the Act, authorizes the Government to frame the rules to cany out the purpose of the act. This power does not include in itself to frustrate the provisions or the purpose of the Act. The purpose of rule 24 referred above seems only to carry out the spirt of Section 22 of the Act, which enables the Government to remove hardship in case of a civil servant, not to enable it to make wholesale appointments by relaxing the rules. The individual cases are exceptions and exceptions are always rare. Thus the relaxation of rules for making the appointments is also without lawful authority. 20. As stated hereinbefore, all the posts occupied by Respondents Nos. 4 to 20 have not only been illegally filled in, but are also against the spirit of the following judgments of the Supreme Court reported as " Azad Government and others v. Muhammad Yunus Tahir and others" (1994 SCR 341) = 1994 PSC 1198 ; "Sheikh Manzoor Ahmed v. Azad Govt and others" (1994 SCR 279) = 1995 PSC 297; " Azad Gout and others v. Javed Iqbal Khawaja and others" (1996 SCR 40); and unreported judgment of the Supreme Court referred above, i.e. "Dr. Mehmood Hussain Kiani v. Azad Govt and others (Civil Appeal No. 66 of 1995). 21. In view of above, following the dictum laid down in the case of "Muhammad LatifKhan v. AIM Husnain Bukhari and 41 others" (PLD 1993 SC AJ&K 1), the posts occupied by Respondents Nos : 4 to 20 are declared vacant. 22. As the rules for the posts have been placed on record during the course of arguments by the learned Advocate for the respondents, the Government is at liberty to fill the posts on ad hoc basis if public interest so warrants, after forwarding the requisition to the Public Service Commission, and advertising the posts in accordance with rule 23(2) of the Rules and the Notification No. ADMN/A-27(46)/83, dated 20-6-1993, besides fulfilling the requirements of the dictum of the Supreme Court laid down in Civil Appeal No. 66 of 1995 referred above. 23. The petition is accepted with costs. (K.K.F.) Petition accepted

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1 (DB) Present: abdul rahim kazi and agha saifuddin khan, JJ. NADIR HUSSAIN-Appellant versus STATE-Respondent Criminal Appeal No. 214 of 1993, accepted on 24.9.1995. Pakistan Penal Code, 1860 (Act XLV of 1880)- —Ss. 365 - A, 307, 324, 149-Abduction for ransom-Offence of-Conviction for-Challenge to-P.W. Daiya Khan from whose Otaq, abductee was abducted, was an old person of 90 years who could hardly see and wait-­ He could not identify real culprits—His evidence coupled with that of P.W. Muhammad Usman that two persons who had obtained ransom in is presence from father of abductee, came v/ith muffled faces, would not prove that appellant was a person who abducted or obtained ransom-Abductee was examined by police after about two months of his release by culprits-Observations of trial Judge that there is extenuating circumstance to take lenient view, prove that trial court was not satisfied with prosecution evidence for conviction-Held: Prosecution has failed to prove charge against appellant—Appeal accepted. [Pp. 4&5] A, B, C & D ^^_ Mr. Nooruddin Sirki, Advocate for Appellant. Mr. Suleman Habibullah, Advocate for State. Date of hearing: 27.4,1995. judgment Agha Saifuddin Khan, J. This appeal has been directed against the judgment passed by the learned Judge, Special Court for Suppression of Terrorist Activities, Larkana, on 27-5-1993, in Special Case. No. 1S9 of 1991, whereby the present appellant Nadir Hussain Jiskani was convicted under Section 365-A, 324, 307, 149 PPG and sentenced to suffer imprisonment for life and forfeiture of his entire property and to further suffer R.I. for 7 years and fine of Rs. 10,000/- or in default to suffer R. I. for 7 years under Section 307/324/149 PPC but acquitted the co-accused Asghar and I a dad in the case. The appellant was given the benefit of provisions of Section 3S2-B Cr. P.C. The case of the prosecution is that complainant Ghulam Sarwar, S.H.O, Police Station Veehar on 25-5-1991 registered the F.I.R. on behalf of the State at 8.15 a.m. that he alongwith the police staff namely, HC Ahmed Khan, HC Deedar AJi, PC Muhammad Khan, and other police personnel in police mobile went on patrol duty and at about 1.00 a.m. they reached the village Gull Muhammad Hisbani and came to know that one Molvi Muhammad Idris has been abducted from the Otaq of one Darya Khan Hisbani by some dacoits. So 'police party chased the culprits and they exchanged fires with them near the jungle for more than two hours. The complainant also identified nine (9) culprits, on moon light to be Hashim, Nadir, Gulab, Hubdur, Sodho, Gohar, Mumtaz, Muhammad and Irshad, Jiskani and afterwards dacoits boarded a tractor and took away abductee towards river side. That complainant parties after chasing the culprits on foot upto thick forest near river ban!: exchanged fires for 2/3 hours and returned back at sunrise time to police station and registered the FIR on behalf of the State. Police after investigation arrested Nadir (appellant), Asghar, and Imdad and challaned them in the Court of Suppression of Terrorist Activities, Larkana. The charge against the present appellant was framed on 3rd May, 1992 under Section 365-A/324/I49 PPC to which the appellant pleaded not guilty and claimed trial. The prosecution has examined P.W. HC Ahmed Khan Ex. 5, P.W. Molvi Muhammad Idris (Abductee) Ex. 6, P.W. Darya Khan Heesbani Ex. 7, P.W. Ghulam Sarwar Mehar S.I.R.Ex. 8, P.W. Muhammad Usman Dahri Ex. 10, P.W. Allahdad S.I.P. Ex. 12, P.W. HC Deedar Ali Ex. 33, PW PC Muhammad Khan Ex. 14. The Statement of the accused was recorded under Section 342 Cr.P.C. Wherein he denied the allegations against him. The accused did not examine himself on oath but ht led the evidence in defence of D.W. Pehalwan Jiskani as Ex, 10, that the accused was involved in this case by one ASI Niaz Sargani who had enmity with him over matromonial affairs as at the time of arrest of the accused, Niaz Sargani was Reader to D.S.P. Dokri, and that the learned trial Court after hearing the arguments of the learned counsel passed the above judgment and convicted and sentenced the appellant as above but acquitted the co-accused Asghar and Imdad. Being aggrieved the appellant has preferred the present appeal. We have heard Mr. Nooruddin Sirki, learned counsel appearing for the appellant and Mr. Suleman Habibullah, learned counsel appearing for the State. The learned counsel for the appellant has pointed out that the very contents of the judgment of the trial Court are in-consistent and if the same are read minutely the only conclusion that can be drawn is that no case has been proved against the appellant whereas in the concluding paragraph of his judgment, the trial Judge has stated that the prosecution has brought home the charge under Section 365A/324/307 PPC against the appellant. The learned counsel after referring the evidence of the witnesses and the abductee has referred to the various contents of the judgment of the trial Court and it will be advantagous to reproduce certain portions from,the said judgment. In paragraph 36, the learned Special Judge has held :- "Before parting with the judgment I have to mention that there is an extenuating circumstance to take a lenient view and award lesser punishment to the accused Nadir as the payment of ransom amount to him by the father of abductee is not proved on record but the same'is said to have been obtained by two unknown dacoits. The accused might have received share of ransom amount." In paragraph 19 of the judgment, the learned Special Judge has held: "The S.H.O. was not required under the law to prepare the mashirnarna of such long distance and to inspect the forest again for distance of about 10/12 k.m. only in order to collect empties. Moreover, it was night time and in forest and katcha area empties cannot be collected, therefore, non-collection of empties would not be sufficient to conclude that no encounter took place." The observations of the learned Judge would itself show that the demand of ransom as well as encounter with the police by the culprits has not been proved. It may be observed that in order to convict the present appellant under Section 365A PPC, the prosecution has to show that kidnapping or abduction was done with the intention to get the ransom. The provisions of Section 365 A veiy clearly provides : 365-A. "Whoever kidnaps or abducts any person for the purpose of extolling from the person kidnapped or abducted, or from any person interested in the person kidnapped or abducted, any property, whether movable or immovable, or valuable security, or to cbmpel any person to comply with any other demand, whether in cash or otherwise, for obtaining release of the person kidnapped or abducted, shall be punished with imprisonment for life and shall also be liable to forfeiture of property." In case it is held that there was no demand for ransom or exchange of fire between the police party and the culprits was proved, the charge -under Section 365A, 307, 324, 149 PPG cannot be sustained. The Schedule of Suppression of Terrorist Activities (Special Court) Act shows that Section 365A PPC is a scheduled offence. Again we will refer to paragraph 17 of the judgment whereby the learned Judge has observed as under :- "There is also evidence of one Muhammad Usman at Ex. 10, who deposes that he is caste-fellow of abcluctee Molvi Muhammad Idris nd he came to know on 25-5-1991 about the abduction of Molvi Muhammad Idris, therefore, he alongwith other relatives and father of the abductee made inquiries at their private level to locate and search the abductee and came to know that culprits had detained the Molvi in a jungle. He further deposes that on next day father ofabductee received a chft regarding payment of ransom, otherwise they would murder the abductee. He further deposes that he donated Rs. 15,000/- while one Muhammad Yasin paid Rs. 10.000/-, Mubin Rs. 10,000/- and the other members of their family and relatives arranged and pooled for payment of ransom of Rs. 5 lac to them on their demand. He further deposes that those persons were with muffled faces and they told that abductee would be released by tomorrow. He further deposes that the Molvi Muhammad Idris was released on next day 01 payment of ransom and he arrived at his house in the evening. Hs has also stated that the father of abductee has expired after this incident." P.W. Darya Kliai Ex. 7 has also corroborated the version of the abductee Molvi Muhammad Idris on points of his abduction. This witness is aged about 90 years and too old the see and to walk properly. The above facts as observed by the learned trial Court would show that P. W. Dary?, Khan from whose Otaq abductee Muhammad Idris was abducted was an old person of 90 years who could hardly see and walk —properly could not identify the real culprits who actually entered into his Otaq and ahducted Molvi Muhammad Idris coupled with the evidence of P.W. Muhammad Usman that two persons who obtained the ransom of Rs. 5,00,000/- in his presence from the father of the ahductee late Haji Rab Rakhio came with muffled faces would not prove that app^ant was a person who abducted or obtained ransom. It is pertinent to note that abductee was released by the culprits on or about 29.5.1991 but he was examined by the police on 30.7.1991 after a lapse of about two months and the present appellant Nadir was alleged to be arrested by police on 31.7.91 from the police lock up P.S. Veeher of same r police station as he was already arrested in another crime No. 14/91. The abductee Molvi Muhammad Idris has said in deposition that after his release from the dacoits he wrote to Chief Secretary, Government of Sindh, and afterwards police came and recorded the statement under Section 161 Cr. P.C. The abductee Molvi Muhammad Idris has also said in his deposition that during the confinement he was not allowed to see their faces (culprits), "they directed me to put my eyes down during the entires period of my detention." This observation of the learned trial Judge, in impugned judgment "that there is extenuation circumstance to take a lenient view and to award lesser punishment to accused Nadir as payment of ransom amount to him by father of the abductee is not proved on record but the same has been said to have been obtained by two unknown dacoits. The accused might have received share of ransom amount. Therefore, I do not find it fit to award capital punishment to the accused", prove that the learned trial Court was not satisfied with the prosecution evidence for the conviction. In view of the above discussion, we are clear in our mind that the prosecution has failed to prove the charge against the appellant. At this stage, we cannot restrain ourselves from making observations that the conduct of the trial Judge, who having observed in the judgment that no charge of ransom amount has been proved against the appellant has still convicted him and awarded him such a severe sentence. In consequence, we accept this appeal, set aside the judgment and the sentence and conviction awarded to the appellant. We, by our short order dated 27-4-1995 had acquitted the appellant and these are the reasons from the same. (ZB) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 6 (DB) Present: abdul rahim kazi and abdul latif qureshi, JJ. ABDUL KARIM alias RAJA and another-Appellants versus STATE-Respondent Criminal Appeal No. 234 of 1993, accepted on 19.9.1995. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —Ss. 365-A & 149-Abduction for ransom-Offence of-Conviction for- Challenge to—According to evidence, names of culprits were known to complainant 2/3 days after incident-Prosecution has not come for­ ward with explanation as to why for 6 months, no action was taken to arrest culprits—It is obvious that prosecution has either deliberately avoided to act promptly or evidence has been manipulated against appellants—I.O. was informed that two appellants were in police lock-up at Nodero Police Station and he went there to arrest them but he arrested appellant No. 2 on 1.10.1992 while other appellant was arrested by him on 2-10-1992—One fails to understand as to why both of them were not arrested on same day-Held : A serious doubt is raised as to whether appellants were factually involved in case-Appeal accepted. [Pp. 9&12] A & B Mr. A.Q. Halepota, Advocate for Appellants. Mr. Sarwar Khan, A.A.B. for State. Date of hearing : 12.9.1995. judgment Abdul Rahim Kazi, J. This appeal has been filed challenging the judgment passed by Special Court for Suppression of Terrorist Activities Larkana in special case No. 215/92 whereby the present appellants were convicted under Sections 365-A and 149 PPC and sentenced to death: It was also ordered that their properties movable and immovable be forefeited and from the amount of sale proceeds a sum of Rs. 3,50,000/- be paid to Abdul Khaliq abductee while Rs. 65,000/- be paid to another abductee Abdul Wahid and the rest of the amount be appropriated to government of Sindh. Briefly the prosecution case is that Abdul Salam Arain (complainant i owns Sindh Rice Mill near village Chooharpur where he alongwith his son abductee Abdul Khaliq used to run the business of paddy and rice. It is alleged that abductee Abdul Wahid works as their Munshi/clerk amongst the other staff and Hboui. it is further alleged that on the day of incident they alongwith other members of staff were present at the Mill, when at ""about 12 - 45 they sighted one white coloured car, which came within the pre.iais.es of the Mill and stopped near the Office. Four culprits, each armed with a KK, got down from the car while fifth remained in the car holding steerirg. Two among those four culprits entered the office and forcibly dragged P.Ws : Abdul Khaliq and Abdul Waheed out of the office while two others remained at the entrance door of the office. It is further alleged that the culprits put these two P.Ws in the car on gun-point and drove away towards eastern side. The complainant Abdul Salam Arain then alongwith his labour staff went to police post Mahota of police station Dhamrah where his 154 Cr. P. C. statement was recorded by the incharge vide entry in daily diary at S. No: 4, which was sent to police station Dhamrah for incorporating the same in 154 Cr. P.C. book through some police constable while the other police chased the culprits but to no avail. The ASI Muhammad Ibrahim ^incorporated the FIR of complainant in 154 Cr. P.C. book vide Cr. No. 32 of 1992 and then despatched the copy of the FIR to SHO alongwith original statement to SHO who was reported to be present on wardat and inspected the same on pointation of complainant in presence of two mashirs, and prepared such memos. It is further alleged that the culprits took the abductees in the car for some distance and then took them towards forest by foot after crossing the river Indus and were detained for sufficiently long time. The culprits maltreated the P.Ws : in order to get ransom letters in the names of their parents. After about 40/45 days P.W. Abdul Waheed was released by the culprits after accepting ransom of 65,000/- from his parents while P.W. Abdul Khalique was released after about 2 months on receipt of ^ransom of Rs. 3,50,OOO/- from complainant. Thereafter the 1.0. learnt about — the detention of the present appellants at Nodero police lock-up, he arrested them on 1st and 2nd October, 1992 and put them to identification test on 3.10.92 and thereafter completing the investigation sent-up the challan while others were shown as absconder. The ASI Ghulam Mustafa, process server has been examined as Ex. 2 and order U/S 512 Cr. P.C. was passed against the absconding accused. Charge was framed under Section 365-A and 149 PPC to which the two accused pleaded not guilty and claimed trial. The prosecution examined in all 10 witnesses including abductees. The prosecution then closed their side. The statement of accused was recorded under Section 342 Cr. P.C. wherein they denied the allegations made against them and claimed that they have been implicated in the case on account of enmity with the police. The trial court after hearing the arguments settled the following points. Point No. 1. "Whether the culprits abducted P.Ws: Abdul Khalique and Abdul Waheed on the day of incident from the Rice Mill with no other purpose except to obtain ransom from them or their relatives for their for their release ?." Point No. 2. "Whether the culprits were armed with deadly weapons and won. five in number and received ransom of Rs. 3,50,000/- and 65.000/- for release of the ahductees respectively ?" Point No. 3. "Whether the accused or any of them is guilty of offence charged against them ?" The Trial Court thereafter passed the above said judgment and convicted and sentenced the appellants as discussed above. Being aggrieved the appellants, have preferred this appeal. We have heard Mr. A.Q. Halepota, learned counsel for the appellants and Mr. Sarwar Khan, AAG for the State. Learned counsel for the appellants has taken us throughout the paper book. At the very out set tbelearned counsel has argued that this is a case where no direct evidence is available nor any recovery is said to have been made from the said appellants. He has pointed out that the only piece of evidence available against the appellants is the identification test and oral testimony of the two abductees. Learned counsel has argued that in this case the veiy identification test has not been held in accordance with law and is a dubious one which cannot be relied on. The learned counsel has referred to the FIR wherein the names of the accused do not appear. He has pointed out that according to FIR the complainant was sitting at his Rice Mill with his son Abdul Khalique and others including Abdul Waheed when at about 1245 hours the culprits came in a white car. According to the evidence of the complainant two of the culprits entered the mill and dragged away his son Abdul Khalique and Munshi Waheed Ali from the office and abducted them. However, in his cross-examination he has admitted that 2/3 days after the incident he came to know that the names of two culprits were Raja Mugheri and Pasha Khorkhani, the present appellants. He has also admitted in his cross-examination that there was a general rumour in public that these were the persons who had abducted the son and Munshi of the complainant. It may also be observed that the abductee. Abdul Khalique in his evidence has stated that he was sitting with his father in the mill when the two culprits came there to abduct him and that at that time they disclosed their names as Abdul Karim alias Raja and Abbas Ali alias Badshah while 2 others who were standing outside were Imdad Chandio and Majeed Chandio. According to this statement the names of the culprits were disclosed at the veiy time in presence of complainant but yet the complainant did not mention the names of the culprits in the FIR. Again it may be observed that according to prosecution case Abdul Waheed one of the abductee was released by the dacoits and his statement under Section 161 Cr. P.C. was recorded on 19.5.92. According to th'c abductee he had given the names of the dacoits in his statement recorded by police. The other abductee Abdul Khalique in his evidence states that he was released by dacoits 10/12 days after the released of Waheed AH. This means he was also released in the month of May, 1992 and his statement was also recorded by police and he knew and disclosed the names of the culprits hut yet no action has heen taken by the police to arrest the said accused. According to this evidence it can safely be assumed that at the time of abduction or within 2/3 days thereafter the names of the culprits were known to the complainant and obviously the prosecution has not come forward with explanation as to why for 6 months no action was taken to arrest the said culprits. Evidence of ASI Ghulam Mustafa Ex. 2 would show that another co-accused Latif Mughairi was arrested and had been in police custody but yet he was not challaned in the present case for the reasons best known to the investigating agency. In these circumstances, it is obvious that the prosecution has either deliberately avoided to act promptly in the case or the evidence has been manipulated against the present appellants. One fails to understand as to why for a period of 6 months the investigating agency was just lying low without taking any action in the matter although the identity of the culprits was known. According to I.O., as he disclosed in his evidence, he was informed by the law enforcing agencies that the two appellants were in police lock-up at Nodero police station and he went there to arrest them. However, appellant Abbas All alias Pasha was arrested on 1st October while the other appellant was arrested on 2nd October, 1992. One also fails to understand as to why both of them were not arrested on the same day. The learned AAG has placed reliance on the evidence of P.W. Imdad Ali who according to him had identified the accused in Court. It may be observed that this P.W. Imdad Ali is not the witness of the identification parade. All this goes to show that it was only after the arrest ef the present appellants that the investigating agency came into motion and then manipulated, rather managed the evidence to suit the present case. In these circumstances, we are of the opinion that a serious doubt is raised in the present case as to whether the present appellants were factually involved in the case. As regards the identification reliance may be placed on the case of (Khadim Hussain v. The State) 1985 SCMR 721, wherein it has been held : "The mere fact that a witness is able to pick out an accused person from amongst a crowd does not prove that he has identified that accused person as having taken part in the crime which is being investigated. It merely mean that the witness happens to know that accused person. The principal evidence of identification is the evidence of a witness given in a Court as to how and under what circumstances he came to pick out a particular accused person and the details of the part which that accused took in the crime in question. The statement made by such a witness at an identification parade might be used to corroborate his evidence given in Court, but otherwise the evidence of identification furnished • by an identification parade can only be hearsay except as to the simple fact that a witness was in a position to show that he know a certain accused person by sight". Also in the case of (Mahmood Ahmed and 3 others v. The State) 1995 SCMR, 127 their lordships have been pleased to hold that picking up of the accused in the identification parade without describing the roles played by them in the crime' was illegal rendering the proceedings unreliable and having no evidentiaiy value. In the same case the accused were acquitted. It may be further observed that preparing the police report of an offence keeping the names of accused open even though their names were available would give rise to the inference that the same was done with the intention to rope any such person whom ultimately the prosecution might wish to implicate. This is the case here. Even identification test itself is a dubious one. The Magistrate Sikandar Ali who has supervised the identification admitted that he has not mentioned the time of holding of the test nor he has given the discription of dummies and that his report contains certain over-writings. According to abductee P.W. Abdul Waheed the accused were in hand-cuffs at the time of identification test while the Magistrate says that he had got the hand-cuffs removed. It may also be observed that FIR was registered in the present case and incident had taken place on 26.3.92 while the accused were arrested 6 months thereafter on 1st and 2nd October, 1992 and the challan was put up on 18.11.92 i.e. about 48 days after the arrest of the present appellants. The learned counsel for the appellants has argued that this amounts to violation of the provision of Section 173 which reads as under :- "(1) Eveiy investigation under his Chapter shall be completed without unnecessaiy delay, and as soon as it is completed, the officer in charge of the police station shall [through the Public Prosecutor] : (a) forward to a 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, 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 :] [Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer in charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public-Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence]. (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial overnment] 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) A copy of any report forwarded under this Section shall, on application, be furnished to the accused before the commencement of the inquiiy or trial; Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost]. [(5) Where the officer-in-charge of a police station forwards a report under sub-section (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial]". The learned State counsel has argued that in view of the provision of Section 537 Cr. P.C., the trial would not be affected for non-compliance of the provision of Section 173 Cr. P.C.. The above said Section 537 Cr. P.C. reads as under :- 537. 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 of revision on account- (a) of any error, omission or irregularity in the complaint, report by police-officer under Section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in 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 of 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. The above provision would be applicable to the cases where there is an error, omission or irregularity in the complaint or report by a police officer under Section 173 Cr. P.C., etc. In the present case, as pointed out above, it is neither an error, omission nor irregularity in such report but it is a matter of non-submission of the report itself which amounts to violation of a statutory provision and, therefore, the trial can be said to have been vitiated From the above discussion we are of the view that the prosecution has failed to prove their case against the appellants beyond any reasonable doubt. Accordingly we allow this appeal and order to set aside the judgment r> of the trial Court passed in Special Case No. 215/1992 and also the conviction and sentence awarded to the appellants. The appellants shall stand acquitted and shall be released forthwith, if not required in any other case. Above are the reasons for the short order announced in Court on 12.9.1995. (ZB)

Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C (Karachi) 12 (DB) •(Circuit Bench, Larkana) Present: ABDUL MAJID KHANZADA AND SHAH NAWAZ AWAN, JJ. AMEEN alias MUHAMMAD AMEEN and 2 others-Appellants versus STATE-Respondents Criminal Appeals No. 83 and 84 of 1994, decided on 26-9-1995. (i) Criminal Trial-- —Murder—Evidence—Appreciation of—Trial court has not even doubted non-examination of two abductees, who were mentioned in FIR lodged by SIP Muhammad Soomar on behalf of state on receipt of information through PW Muhammad Israr, who in fact ought to have been made informant instead of SIP Muhammad Soomar, in FIR of this case—There is a great difference in modus operandi of an informant/complainant and Investigating Officer-Informant always desires that accused named by him rightly or wrongly should be convicted but Investigating Officer's duty is to honestly investigate information of a crime lodged before him and to bring guilt of real culprit at home-Held: Practice adopted by SIP Muhammad Soomar to become himself Informant and Investigating officer as well, is not appreciated. [P. 31] A (ii) Criminal Trial- —Murder-Offence of-Conviction for-Challenge to—It is settled law that onus to prove case against accused lies on prosecution and all that defence is to do is to make a dent in case of prosecution-In instant case, defence has succeeded in making such a doubt-Held•: Of course, Section 8 of Suppression of Terrorist Activities (Special Courts) Act, 1975, under which accused were tried, provides for shifting of burden upon accused but that will be only in case where prosecution has been successfully able to prima facie establish guilt of accused or that accused are linked with commission of offence. • [Pp. 31&32] B 1995 P. Cr. L. J. 1394 rel (iii) Criminal Trial-- —Murder—Offence of—Conviction for—Challenge to—Defence plea has shown that there is background of enmity between parties and that plea of alibi is also put forward and that version of prosecution wit­ nesses is shattered in their cross-examination by defence—In such circumstances possibility of false implication cannot be ruled out-It is cardinal principle of law that every accused is to be presumed as innocent until prosecution proves its case against him beyond shadow of all reasonable and plausible doubt-Held: If Prosecution fails in its duty which never shifts to accused, accused becomes entitled to benefit of doubt. - [P. 32] C 1993 SCMR 550 rel. (iv) Suppression of Terrorist Activities (Special Court) Act, 1975 (XV of 1975)- —S. 7 read with Criminal Procedure Code, 1898, Section 410-Mu.rder- Offence of-Conviction for-Appeal against-Accused/Appellants have not committed offence of kidnapping PWs and deceased Ghulam Hyder, for ransom, and causing murder of abductee Ghulam Hyder, in manner suggested by prosecution, an abetment or instigation of appellant No. 1~ Prosecution has miserably failed to produce confirmatory evidence of independent, credible and unimpeachable character-Held : In this case there is a room for doubt, benefit of which must go to accused/appellants in both appeals-Appeals accepted. [P. 32] D Mr. Kamaluddin, Advocate for Appellant (in Cr. A. 83 of 1994). M/s Alt Nawaz Ghanghw and Asif All Soomro, Advocates for Appellants (in Cr. A. 84/94) Mr. Yar Muhammad Abbasi, A. A. G for. State (in both appeals) Dates of hearing: 22nd and 23rd August, 1995. judgment Abdul Majid Khanzada, J.-Above captioned two appeals are filed under Section 7 of Suppression of Terrorist, Activities (Special Court) Act, 1975 read with Section 410 Cr. P. C. calling in question the judgment dated 28.12.1992 of the S. T. A. Court, Larkana in Special Case No : 95 of 1992, convicting appellants Abdul Ghaffar and Qaim alongwith absconding accused namely Bashir Khushk, Ali Sher Abro and Umer Malah to death each subject to confirmation by High Court of Sindh and forfeiture of their movable and immovable property to Government of Sindh under Section 365-A read with Sections 148, 149 PPC and further convicting them to death each subject to confirmation by High Court of Sindh arid to pay fine of Rs. 50,000/- each or in default to suffer R. I. for two years more, under Section 302 read with Sections 148, 149 PPC; and convicting appellant Ameen @.Muhammad Ameen for offence under Section 365-A/109 PPC for life imprisonment and forfeiture of his movable and immovable property to the Government of Sindh; and also convicting him for the offence under Section 302/109 PPC for life imprisonment and to pay fine of Rs. 50.000/- or in default to suffer R. I. for two years more. 2. The above appeals are filed by Ameen (a> Muhammad Ameen (2) Qaim and (3) Abdul Ghaffar, while no appeal is preferred on behalf of the absconding accused. Since the impugned judgment and the evidence recorded in the case are common, we propose to dispose of both these appeals, by single judgment. 3. Briefly stated the relevant facts giving rise to these appeals are that as per the case of the prosecution disclosed in the FIR No : 7/1991 lodged at Police Station, Mahi Otho District Dadu, by the complainant SIP Muhammad Soomar Solangi SHO, PS, Mahi Otho, on 15.9.1991 at 1830 hrs from Police Station vide entry No: Nil, he alongwith HC Mopndar Khan, Constable Azi^ullah and constable Ghulam Hyder were on patrol duty on protective bund. They heard firing at 2200 hours from eastern-southern side. Then they proceeded on foot towards Shewan Sharif. When they were near Sehwan town and were going towards eastern side on protective bund near tube-well machine of Sadiq Ali Shah, they met Muhammad Israr who told them "that near the tube-well machine of Qamaruddin Korejo, on which he is chowkidar and was sleeping, at 10 p.m. seven persons came from Wahar and they woke him up and he saw 5 persons had klashnikovs and guns in heir hands and remaining 2 persons were empty handed. They asked one person to wear clothes and proceed, who wore his clothes and proceeded but in the meanwhile, the man fired with gun at him directly and the other person who was armed with - klashnikov also fired a burst on his back side. They gave him a chit saying that he should- deliver it to police and told him that they- are Sher Malah and Bashir Khuskh, the gang of dacoits. From them who was empty handed told his name Muhammad Ali @ Kako Memon resident of Bhan Saeedabad and disclosed that he, Nazar Muhammad Panhwar, Haji Suleman Rahpoto, Abdul Hameed Memon and Ghulam Hyder Memon, about 10-15 days ago had gone to village Bilawalpur for the purpose of trade and above dacoits had abducted them, from which Abdul Hameed, Nazar Muhammad and Haji Suleman were released and have murdered Ghulam Hyder now. He further told that they are taking him away for the purpose of rarison". On this statement, they accompanied Israr Ahmed towards place of incident. They saw that the dead body was lying facing towards ground. The head of which was towards West and feets towards East. They inspected the dead body and noticed that pellets and burst were seen on the back of the dead body and was bleeding. After that through PC Azizullah, the dead body was sent for post-mortem by giving him letter and then came back to police station. The dacoits Sher Malah and Bashir Khushk and their gang had abducted above persons for the purpose of ransom and caused their murder atleast 10/15 days ago from the jurisdiction of P. S. Khairo Dero village Bilawalpur, from whom Nazar Muhammad, Haji Suleman and Abdul Hameed were released and Ghulam Hyder s/o Muhammad Memon r/o Bhan Seedabad is murdered. Hence this FIR is lodged on behalf of State. 4. That after usual investigation and arrest of appellant Ameen @ Muhammad Ameen on 25.11.1991? the challan of the case against Ameen while showing others as absconders was sent up to S. T. A. Court, Hyderabad on 10.12.1991 against whom on 15.2.1992 charge was framed. Thereafter the case was transferred to S. T. A. Court, Larkana and three witnesses Muhammad Ali @ Kako Memon, (2) Abdul Sattar and (3) Muhammad were examined on 20.8.1992. On 22.10.1992 from the absconding accused, appellants Qaim and Abdul Ghaffar were arrested and were sent up with supplementary challan and consequent thereupon the court ordered the de novo trial as such on 18.11.1992 amended charge was framed against the present three appellants alongwith the absconding accused. The three accused present in court pleaded not guilty to the charge framed against them. 5. In support of its case, the prosecution examined, 12 witnesses viz. (1) Dr. Mukhtiar Ahmed (Ex-14) who produced post-mortem notes (Ex. 14/A), (2) P. W. Muhammad Ali @ Kako (Ex-15) who produced the original chit (Ex-15/A) and his 164 Cr. P. C. statement (Ex-15/B) and his affidavit (Ex-15/C), (3) P. W. Walidad (Ex-16), (4) PW Muhammad Siddique (Ex-17) who produced his affidavit (Ex-7-A), (5) PW Abdul Sattar the mastiir (Ex- 18) who produced mashirnama of wardat (Ex-8-A) and inquest report (Ex- 18/B), (6) PW Muhammad the mashir (Ex-19) who produced mashirnama of arrest of accused Muhammad Ameen (Ex-19/A), (7) PW Nazar Muhammad (Ex-20) who produced his 164 Cr. P. C. statement (Ex-20/A) and his affidavit (Ex-20/B), (8) PW Muhammad Israr (Ex-21) who produced his 164 Cr. P. C. statement (Ex-21/A), (9) SIP Ahmed Khan (Ex-22) who produced letters for recording 164 Cr. P. C. statements of the witnesses (Ex-22/A&B) and mashirnama of arrest of Haji Suleman (Ex-22/C), (10) PW Muhammad, Rafiq, Assistant-Mukhtiarkar, Sehwan (Ex-23) who produced the letter of SHO for supervising identification parade of accused Qaim and Abdul 'Ghaffar (Ex-23/A) and the mashirnama of identification test (Ex-23/B), (11) PW Nazir Hussain the then Resident Magistrate, Dadu who recorded 164 Cr. P. C. statements of the witnesses (Ex-24) v, Iio also produced the original 164 Cr. P. C. statement of witness Abdul Hameed, and (12) SIP Muhammad Soomar, the complainant and the Investigating Officer (Ex-25) who produced FIR (Ex-25/A), mashirnama of arrest of accused Qaim and Abdul Ghaffar (Ex-25/B), FIR regarding killing of absconding accused Sher Malah in police encounter (Ex-25/C) and the side of the prosecution was closed vide statement (Ex-26). 6. The statement of accused Ameen @ Muhammad Ameen under Section 342 Cr. P. C. was recorded (Ex-27) who produced Medical Certificate of his illness and treatment as an indoor patient from 28.8.1991 to 24.9.1991 (Ex-27A), Remand Orders granted by Mukhtiarkar Sehwan and SDM Sehwan (Ex-27/B to 27/D). The statement of accused Qaim under Section 342 Cr.«P. C. was recorded as (Ex-28) and that of accused Abdul Ghaffar as (Ex-29) who also produced copy of FIR No: 155/1991 of PS Dadu (Ex-29/A) and the copy of challan of FIR No: 155/1991 (Ex-29/B) regarding his kidnapping lodged by his brother Ghulam Sarwar. Accused Ameen @ Muhammad Ameen also examined himself under Section 340(2) Cr. P. C. (Ex-30) and also examined one DW Muhammad Sadiq in his defence as (Ex- 31) and his advocate closed his side vide statement (Ex-32). 7. That the S.T.A. Court, Larkana after hearing the arguments of the advocates of the accused and the Special A.P.P, for the State, determining the following points, convicted the appellants and the absconding accused and sentencing them as shown above in the opening para of this judgment. POINTS (1) Whether PWs Muhammad Ali, Abdul Hameed, Nazar Muhammad Suleman and deceased Ghulam Hyder were abducted by five culprits on the date of incident in order to extort ransom from them or their relatives ? (2) Whether abductee Ghulam Hyder (deceased) was later done to death by causing him fire arms injuries due to non payment of ransom ? (3) Whether accused Ameen instigated and abetted the co-accused and absconders for commission of offences under Section 302, 365-A PPG and also arranged the payment of Rs. 2,00,000/- from Muhammad Siddique brother of abductee Muhammad All? (4) Whether accused Qaim and Abdul Ghaffar are guilty of offences under Sections 302,365-A read with Sections 148 and 149 PPG ? 8. Appellants Ameen @ Muhammad Ameen, Qaim and Abdul Ghaffar having been dissatisfied and aggrieved with the said judgment, preferred to present appeals. 9. We have heard the learned advocates for the appellants and Mr. Yar Muhammad Abbasi Advocate for the State and with their valuable assistance have gone through the evidence of the witnesses recorded in the case and the documents produced by them before the S.T.A. Court, Larkana. 10. P.W Muhammad Israr (Ex - 21) who is a star witness, deposed that about one year ago at the tube-well of Qamaruddin Korejo which is situated at a distance of one mile from Sehwan, where he is chowkidar, at about 9-0/9-30 p.m. he noticed 7/8 persons on the other side of water-course of tube well and from them 3/4 persons crossed the same and came towards him. One of the culprits, came and sat with him on the cot, and told that he is going to murder one person. He further told him that they are two persons who are not paying ransom therefore he will kill one of them. The culprits conversed amongst them and they called deceased Ghulam Hyder who was naked except having a loin cloth. The accused gave him clothes and then the person having gun first opened fire at him and then other person having klashnikov fired at him, upon which he fell down on the ground. They gave him a chit and asked him to give it to superior officer of police station. He saw chit (Ex-15/A) and stated that it resembles but he can not say as to whether it is same. He also deposed that after receiving the said chit he left for police station to deliver the same to police but on his way near protective bund ASI Muhammad Soomar met him, whom he gave the chit and narrated the incident entirely. He specifically stated that "Accusedpresent in ourt were not seen by me and they had not come to my room." It was not produced for any identification test. "No identification test was held through me." (i) The above evidence of the witness has not corroborated the version attributed to him by the complainant in his FIR regarding his talks with abductee Muhammad All @ Kako Memon who is said to have told this witness the manner in which they were abducted and the names of other abductees, so also the release of abductees Nazar Muhammad, Haji Suleman and Abdul Hameed. The accused present in court, who are now appellants, were not identified by this witness to be responsible for kidnapping and murder of deceased Ghulam Hyder. He also denied the veiy conduct of the identification test through him. This all he deposed in his Examination-inhief and he was neither declared hostile nor prayed for cross-examination by the prosecution, which means the prosecution admitted his evidence as true and correct. 11. PW Muhammad Ali (Ex-15) who is one of the abductees, deposed that on 1.9.1991 he, Nazar, Muhammad, Haji Suleman, Abdul Hameed and Ghulam Hyder, while they were coming back from village in a car being driven by Abdul Hameed, they were confronted by 5 dacoits who stopped their car, took them out and taken towards forest On first night Nazar Muhammad was released, on next day Haji Suleman was released and after 5/6 days accused Ameen came" in the forest and after paying Rs. '25,'OQO/- to the dacoits got the driver Abdul Hameed released and took him away. On 15.9.1991 the accused took them out of the forest and brought them at a tube-well of one Qamaruddin Korejo alongwith his maternal uncle Ghulam Hyder, where accused Ameen was present, who met the dacoits and told them that Memons are not prepared to pay ransom, therefore murder Ghulam Hyder so that they should pay the ransom. On this, Sher Malah took a klashnikov and fired at the back of Ghulam' Hyder while accused present in court namely Abdul Ghaffar also fired one or two shots with gun at Ghulam Hyder. At the time of this incident, one chowkidar Israr Ahmed was also present at the tube-well. After committing the murder of Ghulam Hyder, accused Ameen threatened him if his relatives will not make the payment, he will have the same fate as of his uncle. He also stated that prior to the murder of Ghulam Hyder, the culprits forced him to write a chit for the payment of ransom to accused Ameen but on the objection of accused Ameen, the said chit was torn and another chit was written by him in the name of Mumtaz Lakho addressed to his brother Muhammad Siddique for making payment to Mumtaz, who knows about them. At the time of writing of this chit, Israr ehowkidar was also present. He produced the said chit as Ex - 15/A and stated that chit is in his hand writing. The said chit was handed over to Israr to hand-over the same to police. Then after causing murder of his uncle, the culprits again took him in the forest. After 4/5 days accused Ameen arrived in the forest and paid Rs. 2,00,000/- to Sher Malah for his release but Sher Malah retained Rs.1,00,000/- and paid Rs. 1,00,000/- back to the accused Ameen as his share, and the culprits released him and he came with accused Ameen who left him at a place known "Lai Kohoon" near Sakrand. From there he went to Hyderabad for treatment. Then on 1.11.1991 he went to Mahi Otho police station, where his statement was recorded. He disclosed that he remained with dacoits for about 20 days, and liis 164 Cr. P. C. statement was also recorded. He further stated that on an identification parade of accused Qaim and Abdul Ghaffar was held before Assistant Mukhtiarkar, Sehwan, in which he rightly picked them. In cross-examination by advocate for accused Ameen, the witness admitted that his 161 Cr. P. C. statement was recorded after \ month after his release. He also stated that he has stated in 161 Cr. P. C. statement about payment of Rs. 25.000/- by accused Ameen for the release of taxi driver Abdul Hameed and that Ameen took Abdul Hameed with him. When he was confronted with his 161 Cr. P. C. statement, he replied that place might have recorded his distorted statement "that the dacoits informed me about the payment of ransom of Rs. 25.000/- for the release of Abdul Hameed". He also stated that they alongwith culprits reached the tube well at 6 p.m. when accused Ameen was already present at tube-well and PW Israr was sitting in his room at a distance of 15/20 paces from accused Ameen. He claims to have stated the entire facts to the police regarding his abduction, arrival of Ameen at tube-well and the discussion held thereon. He admitted that he has not stated to police, the facts, in the manner as the same are recorded in his 161 Cr. P. C. statement, as the time given is 10 p.m. of arrival at tube-well and nothing regarding presence of Ameen at tubewell. He also admitted that he did not state in police or in his 164 Cr. P. C. statement or in his earlier statement that the chit was written in the name of accused Ameen and it was torn on the objection of Ameen. He stated that " lifter his release, he narrated the facts to his brother at Kotri. He denied enmity with accused Ameen. In the cross-examination by the learned advocate for other accused, this witness admitted that he has not stated about the firing by Ghaffar and Sher Malah on deceased (Ghulam Hyder) in 161 Cr. P. C. statement. He also admitted that "It is correct that I was called at police station prior to holding identification test. "It is correct that accused were taken alongwith me before the Magistrate." "There were 10 dummies at the time of identification test." "It is correct that accused Qaim has not caused any injury or individually detained me." (i) From the above evidence of the witness, it is clear that he is belied by PW Muhammad Israr, thechowkidar on the tube well, in respect of presence of accused Ameen at the tubewell before or after or at the time when abductees Muhammad Ali and Ghulam Hyder were brought out of the forest and that on the instigation of accused Ameen abductee Ghulam Hyder was murdered by the dacoits and that accused Ameen threatened the witness of the same fate, if ransom is not paid. He is also not supported by PW Israr on the point of writing chit first in the name of accused Ameen and then after tearing the first, writing second in the name of one Mumtaz Lakho for payment of ransom. He has also made the identification test of accused Qaim and Abdul Ghaffar through him, unreliable as according to him the accused and the witnesses went together before the Magistrate which made it of no value. The perusal of his statement in court, his 161 Cr. P. C. statement and 164 Cr. P. C. statement, it is established that the witness has improved his evidence from his earlier version made to police and the magistrate who recorded his 164 Cr. P. C. statement. This witness has also not deposed about his talks with PW Muhammad Israr as to how he and other abductees were kidnapped by the accused persons and release of ~ abductees Nazar Muhammad, Suleman and Abdul Hameed, and the PW Israr has also not claimed to have been told so by Muhammad Ali and that he told to police, as attributed to him in FIR by complainant Muhammad Soomar. In view of the above situation, this witness does not appear to be honest and reliable one, particularly in a case which warrants capital punishment. 12. PW Nazar Muhammad (Ex - 20) is one of the abductees, who was released on first night by the dacoits without any ransom, stated that about 14/15 months ago, when he, Muhammad Ali, Suleman, Ghulam Hyder and driver Abdul Hameed were coming back in a car from village Bilawalpur and when they had covered one kilometer, they were confronted with dacoits, who took them out of car and took to forest, leaving the car at wardat. He claimed to have been released by dacoits at Isha Prayer, and on next day he reached at village Talti, from where he went to his village, where he conveyed the message of the dacoits to the relative of Memons to arrange for ransom of Rs. 6/7 lacs for the release of Muhammad Ali and Ghulam Hyder. He further stated that he came to know after 4/5 days that driver Abdul Hameed was released on the payment of Rs. 25.000/- to Ameen. He also stated that after 6/7 days of the release of Abdul Hameed driver, he came to know that Ghulam-Hyder abductee was murdered by dacoits at tube well. Then after 2/3 days of the murder of Ghulam Hyder, Muhammad Siddique brother of abductee told him that he paid Rs. two lacs as ransom through Ameen for the release of his brother Muhammad Ali. He also came to know that Muhammad Ali was released by the dacoits and has gone for treatment at Kotri. He stated that accused Ameen present in court is same so also accused Ghaffar and Qaim who abducted them after maltreating him. He again stated that accused Ameen was not present at the time of abduction. In his cross-examination by the learned advocate for accused Ameen, he admitted that after his release, he did not lodge any report with police and that his statement was recorded by police after about 1 or 2\ month of his release, when he was called by the police at police station. He admitted that he did not state before police about Rs. two lacs ransom amount paid by Muhammad Siddique to Ameen, so also in 164 Cr. P. C. statement. He admitted to have stated in his 161 and 164 Cr. P. C. statements about the release of Muhammad Ali after one month and that he came to know yesterday. In the cross-examination by the learned advocate for the other accused, the witness admitted to have not named any culprit nor gave any description of accused in his 161 and 164 Cr. P. C. statements ; and that no identification parade was held through him. (i) Mostly the evidence of this witness is hear-say one and the learned advocates for the accused had objected to the recording of the same inthe trial court but their objections were wrongly turned down by the S. T. A. Court, Larkana. If his hear-say evidence and that which he deposed out of his 161 and 164 Cr. P. C. statements, his evidence remains only on the point of abduction and his release on the first night at Isha Prayer time, by unknown dacoits. 13. PW Muhammad Siddique (Ex - 17) is brother of abductee PW Muhammad Ali who paid Rs. 2,00,000/- as ransom money to the accused Ameen for the release of his brother, in presence of PW Walidad. He stated that his brother Muhammad Ali, Ghulam Hyder, Nazar Muhammad, Haji Suleman and Abdul Hameed driver Were abducted on 01.01.1991 while coming back from village Bilawalpur in a car. After 5/6 days he received a message from accused Ameen, to settle the dispute between Liaquat and Malahs so that he will get released his brother Muhammad Ali and uncle Ghulam Hyder, as Liaquat was his ex-driver while Malahs are related to dacoit Sher Malah. On this the dispute was settled by him and Liaquat was asked to pay fine of Rs. 40,000/- to Malahs. Thereafter he asked accused Ameen to get release of the above named abductees, upon which he demanded ransom of Rs. six lacs, to which the witness showed his inability. He further stated that he came to know that accused Ameen visited the dacoits in forest and told them that witness (Muhammad Siddique) is not willing to pay Rs. six lacs, therefore, they should kill one abductee so that for release of other abductee, he may make the payment; and on the instigation of accused Ameen, dacoits killed Ghulam Hyder. After the murder of Ghulam Hyder, the witness asserted that he again went to accused Ameen and requested him to get released his brother as due to his efforts the driver Abdul Hameed was also released after making payment through him. Accused Ameen again demand Rs. 3 lacs but on the next day the amount of Rs. 2 lacs was settled and on the 3rd day of murder of Ghulam Hyder, he made payment of Rs. 2 lacs as he received the message of accused Ameen through his Munshi Ali Hassan, where Nazir, Walidad and Munawar were also present. He took the money from his house and went alongwith aforesaid three persons at the shop of accused and made him payment. After payment when he reached his house, he received a call from Ameen on phone that he should also accompany him and also to arrange for his conveyance, upon which he refused to accompany him but he sent the car. On the next day, he received a phone call from his brother from Kotri that he has been released. He claimed to have recorded the talks with accused Ameen on a tape, which he handed over to Investigating Officer. After the release, his brother told him that out of Rs. 2 lacs, the dacoit Sher Malah kept one lac and returned Rs. one lac to accused Ameen as his share. In the cross-examination by the learned advocate for accused Ameen, this witness has admitted that he did not state in 161 Cr. P. C. statement that Malahs who had dispute with Liaquat, are related to dacoit Sher Malah. He also admitted to have said about visit of Akbar after 5/6 days of the incident. He said that he informed the police about the demand of Rs. 6 lacs as ransom for the release of his brother by Ameen. He admitted that he did not state that accused Ameen demanded Rs. 3 lacs after settlement of dispute between Liaquat and Malahs by him. He said that he came to know about the murder of Ghulam Hyder through constable in night time, upon which he visited police station, Mahi Otho. He claimed to have stated in his 161 Cr. P. C. statement that when he showed his inability to pay Rs. 6 lacs, the accused Ameen went to forest and told the dacoits that Memons ai$ not prepared to pay ransom. He does not remember whether he stated about the car asked by accused Ameen or about accompanying him. He admitted to have not stated in his 161 Cr. P. C. statement about the arrival of his brother at Kotri and that he had received such message from him. He disclosed that after—.£ receipt of information of the murder of Ghulam Hyder, Munawar, Abdul Sattar and Abdul Jabbar accompanied him to the police station. He admitted that his statement was recorded about 1 \ month of the release of abductee and that he has not given any statement prior to 19.11.1991. He denied the suggestion that his brother was released through the efforts of Ali Nawaz Channa and police persons of P.S. Bhan Saeedabad and that he has implicated the accused Ameen due to business rivalry and strained relations on account of settlement of dispute of Liaquat. (i) This witness appears to be interested one as his brother was released after he paid the ransom and that his maternal uncle Ghulam Hyder was murdered. It has come in his evidence that after the abduction of r his brother, he remained in contact with the police as he informed the police of the demand of ransom amount by accused Ameen, so also he visited the police station after receipt of information of the murder of his uncle Ghulam Hyder alongwith his other relations, but prior to 19.11.1991 his 161 Cr. P. ^__ C. statement was not even recorded. He has also made improvements in his evidence in court form his 161 Cr. P. C. statement. The audio cassette claimed to have been containing talks with accused Ameen regarding settlement of dispute between Liaquat and Malahs and the amount of ransom, was said to have been given to the Investigating Officer but it is not brought on record nor the Investigating Officer has said to have received the same. In his 161 Cr. P. C. statement, he referred the name of one Akbar who brought the message of Ameen but in evidence recorded in court, he referred the name of one Ali Hassan. In view of the above position, since he is an interested person, his evidence is to be weighed and considered with great cautions. 14. PW Walidad (Ex-16) is the person who is said to have accompanied PW Muhammad Siddique who paid the sum of Rs. 2,00,000/- to accused Ameen as ransom for the dacoits for the release of his brother Muhammad Ali. He deposed that he came to know that about 14/15 months back, gang of dacoit Sher Malah has abducted Memons namely Muhammad Ali @ Kako, Ghulam Hyder, Nazar Muhammad and a taxi driver. He also stated that there was rumour in the town that accused Ameen got released the taxi driver. After about 15 days of the abduction, he came to know that the dacoits have murdered Ghulam Hyder, as he had gone in his "Soyam". At that place Munshi of Ameen met Muhammad Siddique and conveyed the message of Muhammad Ameen to him in his presence for arrangement of ransom for the release of his brother. On this Muhammad Siddique replied the Munshi that he will himself come and shall talk with Ameen. Thereafter he alongwith Muhammad Siddique and 2 other Memons went to the house of Muhammad Siddique who took some cash and then went to the shop of accused Ameen at Bhan Saeedabad, where Muhammad Siddique paid the ransom amount of Rs. 2 lacs to Ameen, who assured that his brother shall be released tomorrow. After 3 days, he came to know that Muhammad Ali was released. He identified accused Ameen in court to be same and stated that he was examined by police after 40/45 days. In the cross-examination of learned advocate for accused Ameen, the witness admitted that he has business terms with PW Muhammad Siddique. He denied to be a cattle trader and used to deal with cattle alongwith Muhammad Ali and when confronted from his 161 Cr. P. C. statement, he replied that he does not remember as to whether he stated before police that he and Muhammad Ali carry on the business of cattle jointly. He admitted to have stated in his 61 Cr. P. C. statement that he came to know about the abduction of Muhammad Ali through general public. He admitted to have not stated in his 161 Cr. P. C. statement about his visit at the house of Siddique on the day of "Soyam" of deceased Ghulam Hyder. He also does not remember as to whether he told the police about the visit of Ali Hassan the agent/Munshi of Ameen at Soyam Ceremony of deceased Ghulam Hyder. He also admitted to have not stated in his 161 Cr. P. C. statement about his visit at the shop of the accused Ameen and payment of money at 10 a.m. or that Muhammad Siddique counted the money. He further admitted to have not given the entire details to the police of Bhan Saeedabad ; and that he did not inform anybody about the transaction of money. (i) The evidence of this witness is hear-say or out of his statement under Section 161 Cr. P. C. He appears to have given evidence due to his business relations with PW Muhammad Siddique and his brother. From his above evidence, he does not appear to be independent witness as such his evidence cannot be taken as a corroborative evidence to the evidence of PW Muhammad Siddique, without the evidence of some independent witness. The prosecution has not examined the other witnesses namely Munawar and Abdul Sattar who accompanied PW Muhammad Siddique and paid the ransom amount of Rs. 2 lacs to accused Ameen, for the reasons best known to them but the presumption for not examining the said witnesses goes against the prosecution. 15. PW Dr. Mukhtiar Ahmed (Ex-14) conducted the postmortem on the dead body of deceased Ghulam Hyder. According to this witness, the deceased had in all 8 injuries on his person. Injuries No: 1 to 3 are the entry wounds while injuries No : 4 to 8 are exit wounds of the injuries No : 1 to 3. According to him, injuries No : 4 and 5 are exit wounds of injury No : 1 and injuries No : 6 and 7 are exit wounds of injury No : 2 and injury No : 8 is the exit wound of injury No : 3. In his opinion, the death was caused due to . shock and haemorrhage as a result of damage caused to the internal organs by the fire arm above said injuries. In cross-examination, this witness admitted to have not described the weapon used for causing injuries No : 1 to ' 3. Injuries No : 1 and 2 were caused from a distance of 6 feet "while injury No : 3 from 12 feet. He further admitted to have not shown the presence of charging or blackening for any injury. (i) On examining the list of the injuries sustained by the deceased Ghulam Hyder, we fail to understand as to how one entry wound shall be result of two exit wounds which appears to be highly improbable and is not explained by the witness in his evidence nor any efforts were made by the prosecution to get it cleared. Admittedly the corpse bearer PC Azizullah is not examined by the prosecution as such it cannot be said or presumed that the dead body was delivered to the doctor in the same condition as it was delivered to him. PW Abdul Sattar (Ex-18) and PW Muhammad (Ex-19) are Mashirs, whose evidence is formal in nature. Abdul Sattar acted as Mashir of wardat and that of the Inquest Report of the deceased Ghulam Hyder ; while PW Muhammad acted as Mashir of arrest of accused Ameen so also of the arrest of Haji Suleman who was subsequently released under Section 169 Cr. P. C. but no order of any competent authority is placed on record. This Haji Suleman as per prosecution was one of the abductees. In crossexamination by advocate for accused Ameen, PW Abdul Sattar admitted that he is cousin of abductee Muhammad Ali while co-mashir Munawar Hussain is brother of Muhammad Ali. This witness produced the Inquest Report (Ex- 18/B) which also shows only three injuries on the person of the deceased Ghulam Hyder, out of which two were through and through. In crossexamination, PW Muhammad denied to have acted as mashir of the arrest of aji Suleman Rahpoto though Ex-22/C shows that he acted so and the SIP Ahmed Khan also stated so, who was the author of the said mashirnama i.e. Ex-22/C. We fail to understand as to why this witness falsely denied his acting as mashir of the arrest of Haji Suleman, which creates doubt in his testimony. PW Rafiq Ahmed (Ex - 23) is Assistant Mukhtiarkar, Sehwan who supervised the identification test of accused Qaim and Abdul Ghaffar through PWs Muhammad Israr and Muhammad Ali. With the two accused, 10 dummies were mixed which was not the proper ratio. The ratio of 1:10 is^ recognized by the superior courts to be the proper. The most important piece of evidence in the case, is made of no legal value by the inefficiency of this witness as the ratio was not proper and allowing the SIP Muhammad Soomar to remain present at the time of the identification parade. The other damaging event is that the witness Muhammad Ali was taken to magistrate alongwith accused. The other witness Muhammad Israr has already stated that he was not produced for any identification test nor any identification test was held through him. It is worth to note that none of the mashirs namely Wadero Soof and Walidino of the identification was examined. In view of the above situation, the evidence on the point of identification of accused Qaim and Abdul Ghaffar has lost its importance and legal value. PW Nazir Hussain (Ex - 24) recorded 164 Cr. P. C. statemens of PWs Muhammad Israr, Muhammad Ali, Nazar Muhammad and Abdul Hameed, when he was Resident Magistrate, Dadu. In his cross-examination,, the witness admitted that the 164 Cr. P. C. statements of the witnesses were recorded by his clerk/reader under his dictation and he endorsed the same to be before me. He also admitted to have not written at the end "S. R. 0. & A. C." (Statement Read Over and Admitted Correct). (i) The perusal of the 164 Cr. P. C. statements and 161 Cr. P. C. statements of the witnesses recorded, are nothing but the copy of each other, which is highly improbable because the same words and phrases cannot be uttered by any person, if enquired, on two occasions. We have gone through the 164 Cr. P. C. statement of PW Muhammad Israr. The last words of PW Muhammad Israr in his 164 Cr. P. C. statement reads as under :- "I was going to Sehwan police to inform them about the chit and such statement of Haji Muhammad Ali @ Kako Memon and you have met me and then you have come back with me and, you had seen the dead body of deceased and had completed usual investigation. After that you had sent the dead body for post-mortem to Health Centre, Bhan Saeedabad. This is my statement. " (ii) The above version in the manner in which it is written, it appears that it is made before the SIP Muhammad Soomar who had met the witness and he was brought back to the place of incident, where Mashirnama of wardat and Inquest report were prepared and the dead body was sent for post mortem. This version belies the Resident Magistrate, Dadu that 164 Cr. P. C. statement of this witness was recorded by his clerk under his dictation. It appears that it was written or copied from his 161 Cr. P. C. statement by the clerk and without even going through the contents of the same, the Magistrate signed it. (iii) Witness Abdul Hameed is not examined in court as such his 164 Cr. P. C. statement cannot be treated as evidence against the accused because the 164 Cr. P. C. statement is used by the defence for the purpose of cross-examination of the witness and it is an admitted position that 164 Cr. P. C. statements of the witnesses were recorded in absence.of the accused. SIP Ahmed Khan (Ex-22) has partly conducted the investigation of the case. He got 164 Cr. P. C. statements of the witnesses recorded from Resident Magistrate, Dadu and arrested Haji Suleman, who was one of the abductees, as suspect and subsequently released him under Section 169 Cr. P. C. SIP Muhammad Soomar (Ex - 25) is the complainant as well as Investigating Officer of the case. He has given the details of the investigation done by him in the case, which is not disputed. In his cross-examination, he proved the contradictions accrued between witnesses' court evidence and the 161 Cr. P. C. statements. He also admitted that he was present at the time of identification parade of accused Qaim and Abdul Ghaffar supervised by the Assistant Mukhtiarkar, Sehwan. This witness has also produced the copy of FIR in crime No : 97/1992 of PS Sehwan (Ex-25/C) regarding encounter of police with dacoits on 5.10.1992 in which absconding accused Sher Malah died. 21. In his statement under Section 342 Cr. P. C. (Ex - 27) accused Muhammad Ameen denied the allegations of the prosecution case put to him and he further stated that since he is responsible for affecting compromise between Malahs and driver of PW Muhammad Siddique on which a sum of Rs. 40,000/- was paid by Siddique's driver to Malahs, thus the witnesses are annoyed. He further stated that he is innocent and he was involved in other crime No : 25/1991 of PS Bhan Saeedabad on the instigation of Memons. He produced copies of remand orders and a medical certificate showing that he was ill and was indoor patient in hospital from 28.8.1991 to 24.9.1991. He has also examined himself in his defence under Section 340 (2) Cr. P. C. (Ex- 30) and stated that he does not know any thing about this incident. He is innocent. He has strained relations with the abductee and his brother PW Muhammad Siddique as they have a brick-kiln at Bhan Saeedabad and he also constructed a brick-kiln adjacent to their brick-kiln. There was a dispute on Government lands which were leased out to Arains as well as 1200 acres were leased to Siddique and their family. Apart from this, there was dispute between one Liaquat and one Faqir Muhammad his labour in which he and Siddique were arbitrators and a penalty was imposed on driver of Siddique on 20.10.1991 on which Siddique got annoyed and due to that Siddique has a grudge against him and therefore he involved him in different cases as well as in this case. The SHO also demanded illegal gratification from him and when he refused to make him payment, he involved him in this case. In his cross-examination to the advocate for State, he denied the suggestion that he got abducted Muhammad Ali through Sher Malah, due to enmity with PW Muhammad Siddique on brick-kiln. He also denied the - suggestion that he instigated accused Sher Malah and Abdul Ghaffar to commit the murder of Ghulam Hyder in order to compel the relations of Muhammad Ali to make the payment of ranson. He further denied the suggestion that he was responsible for the release of Abdul Hameed and that he had paid Rs. 25,000/- at his instance for his release. He also denied that he is informer of Sher Malah and always received his share from ransom amount. (i) From the above cross-examination, it is established that accused Ameen and PW Muhammad Siddique are on inimical terms on account of brick-kiln. Since abductee Abdul Hameed is not examined by the prosecution or his any relation, who might have paid the ransom amount for his release to accused Ameen, it cannot be presumed that accused Ameen got Abdul Hameed released by paying Rs. 25.000/- to dacoits. 22. Accused Ameen has also examined one witness in his defence namely Muhammad Sadiq (Ex - 31) who deposed that he has got his watch repairing shop adjacent to the shop of accused Ameen who is dentist, who also owns a brick - kiln. He claimed that he knows witnesses Muhammad Ali and Muhammad Siddique with whom Ameen has a dispute as both have brick-kiln adjacent to each other. He also stated that he knows SIP Ali Nawaz Abro who is related to PW Siddique, who some time ago had arrested accused Ameen when he was posted at Bhan Saeedabad police station and detained him for about 20 days. In his cross-examination he admitted that he has got cordial and visiting relations with accused Ameen but« denied the suggestion that he is deposing falsely at the instance of accused Ameen. (i) Since this witness is not cross-examined on the point of existence of dispute over brick-kiln in between accused Ameen and PW Muhammad Siddique, the same stands proved and stands corroborated by the evidence of accused Ameen. Accused Qaim in his statement under Section 342 Cr. P. C. (Ex- 28) denied all the allegations of the prosecution put to him, and accused Abdul Ghaffar in his statement under Section 342 Cr. P. C. (Ex - 29) also denied the allegations put to him by the prosecution and stated that on 12.9.1991 he was himself abducted and such FIR No : 155 of 1991 at PS Dadu was lodged and the accused were challaned on 01.5.992 and that he was detained by dacoits. In support of his said plea, he produced copy of FIR (Ex - 29/A), challan (Ex - 29/B). He further stated that his brother had made telegrams and applications to higher authorities; and that he is innocent. Mr. Kamaluddin argued that accused Ameen is charged and convicted for abetment of the offences punishable under Sections 302 and 365 - A PPG. For the commission of offence of abetment, either the abettor should be present at the time of the commission of the offence abetted and it is committed at his abetment or prior to-its commission, he was engaged in the conspiracy in pursuance of which the offence is committed. There is no evidence led by the prosecution, to the effect that accused Ameen was engaged in the conspiracy with the dacoits, in kidnapping the abductees namely PW Muhammad AH, PW Nazar Muhammad, Haji Suleman, driver^ Abdul Hameed and deceased Ghulam Hyder nor to the effect that he was present at that time and they were kidnapped at his instigation, as such the charge of the abetment of kidnapping for ransom punishable under Section 365 - A/109 PPC against him is groundless and his conviction thereunder is llegal. Similarly xcept the sole version of PW Muhammad Ali that accused meen was present at the time of murder of Ghulam Hyder Memon and that he was murdered by other dacoits at the abetment/instigation of accused Ameen, there is no other evidence. And against the version of PW Muhammad Ali, there is evidence of independent witness Muhammad Israr, the chowkidar at the tube-well of Qamaruddin Korejo, where, and in his presence, the murder of Ghulam Hyder was committed, has not shown the presence of accused Ameen at that place, as such PW Muhammad Ali is belied by PW Muhammad Israr. On the basis of sole testimony of PW Muhammad Ali and in absence of any evidence of conspiracy by accused Ameen with the dacoits, to cause murder of abductee Ghulam Hyder, the charge of abetment of murder of Ghulam Hyder punishable under Section 302/109 PPC is also groundless and his conviction thereunder is illegal. 25. Mr, Kamaluddin further argued that the provisions of Section 109 PPC so far as it makes an abettor in case of murder or other offences against human body liable to the same punishment as is prescribed for the murder or for such offences regardless of the various degrees of abetment is repugnant to Injunction of Islam. In support of his contention, he has relied upon a case, Federation of Pakistan v. Gul Hassan Khan reported in PLD Supreme Court 633, wherein it is so declared and it is also held that this decision shall take effect from 23.3.1990 whereby the provision referred to above to the extent they have been held to be repugnant to the Injunction of Islam shall cease to have effect. He therefore submits that in view of the said decision, accused Ameen could not be sentenced to the extent which is prescribed for the offence alleged to have been abetted, as such the sentences awarded to him, on this score, are illegal and liable to be set-aside. 26. He pointed out the delay caused in recording the statements of the witnesses under Section 161 Cr. P. C. and 164 Cr. P. C. in the case, detailed below:- Name of witness. 161 Cr. P. C. 164 Cr. P. C. 1. Muhammad Ali @ Kako (Ex -15) 01.11.1991 18.11.1991 2. Nazar Muhammad (Ex - 20) 01.11.1991 18.11.1991 3. Abdul Hameed (Not examined) 02.11.1991 18.11.1991 4. Muhammad Israr (Ex - 21) 16.9.1991 20.11.1991 5. Muhammad Siddique (Ex -17) 19.11.1991 x 6. Walidad (Ex -16) 19.11.1991 x He submits that statements of the witnesses recorded by police after delay and without explanation, are to be ruled out of consideration. In support of his contention, he relied upon (1) PLD 1960 S.C. 223, (2) PLD 1963 S.C. 17, (3) PLD 1964 S.C. 26, (4) 1969 P. Cr. L. J. 176, (5) PLJ 1973 Lah. 257, (6) 1976 SCMR 236, (7) 1983 P. Cr. L. J. 823 (8) 1983 P. Cr. L. J. 1140 and (9) 1993 S.C.M.R. 550. We have gone through the above mentioned decisions and keeping in view the inordinate delay caused in recording the statements of the witnesses by the police, in the case, we are of the considered opinion that there can be no other contrary opinion as held in the above decisions, as such we find force in the said contention of the learned counsel. 27. Our attention is also drawn towards 164 Cr. P. C. statements of the witnesses (1) Muhammad Ali (2) Nazar Muhammad (3) Abdul Hameed and (4) Muhammad Israr, which were also belatedly recorded. It is pointed out that the 164 Cr. P. C. statements of the said witnesses are like the carbon copies of their 161 Cr. P. C. statements recorded by police. The 161 r. P. C. statement of PW Muhammad Israr dated 16.9.1991 is available on pages 543-544 of the original record of the case and when it is compared with his 164 Cr. P. C. statement at Ex.-21-A, we found that these statements more or less are in same sequence and contain same words and phrases, which, in ordinary course, was not possible unless copied from each other or referred to at the time of recording the same. The possibility of fact, that statements under Section 161 Cr. P. C. recorded by police were before the magistrate when he recorded 164 Cr. P. C. statements of the witnesses, can not be ruled out. In this regard, we are fortified with the case law reported in 1986 P. Cr. L. J. 523. It is also an admitted position that the statements under Section 164 Cr. P. C. were not recorded in presence of the accused and they had no chance to cross-examine them, as such the same can not be used as a piece of evidence against them. Since the statements under Section 164 Cr. P. C. are belatedly recorded and that too, in violation of Section 164 (1 - A) Cr. P. C., the same are discarded from their evidentiary value. Reliance is placed on NLR 1984 Shariat Cases 274. 28. Our attention is also drawn to the fact that following witnesses are not examined by the prosecution, in the case, for which the presumption in law would be against the prosecution as if they would have been examined they would not have supported its case :- (1) Abductee Abdul Hameed a taxi, driver, who is alleged to had been released by dacoits after receiving ransom of Rs. 25.000/- through accused Ameen. (2) Abductee Haji Suleman Rahpoto, who is alleged to had been released by dacoits on next day without any ransom. It is worth to note that he was arrested as suspect on 6.12.1991 vide Ex - 22/C, and was subsequently released under Section 169 Cr. P. C., but no such order is placed on record. (3) Mumtaz Lakho, the person whose name was mentioned in the chit (Ex - 15/A) allegedly written by Muhammad Ali to his brother for getting him released and coming for the same, in company of said Mumtaz Lakho. (4) Munshi Ali Hassan who is alleged to have come to PW Muhammad Siddique with the message of accused Ameen for ransom for release of PW Muhammad Ali and deceased Ghulam Hyder. (5) PC Azizullah, the corpse bearer. (6) Nazir Ahmed (7) Munawar Hussain It is alleged that they accompanied PW Muhammad Siddique and Walidad to pay ransom to accused Ameen. 29. Our attention is also drawn to the fact that the chit (Ex - 15/A) is said to have been written by Muhammad Ali on 15.9.1991, but it is, very strange that it bears a date 14.9.1992 under the signature of some one, which are .not explained by the prosecution. The learned counsel has also pointed out that the case of accused Ameen in his defence is not put in juxtaposition with the prosecution evidence by the trial court, in order to assess as to which of the two is worthy of reliance. Reliance is placed on 1995 P. Cr. L. J. 1430. 30. On the point of identification test, it is argued that it has lost its legal and evidentiary value for the following reasons :- (i) The witnesses and the accused were taken together to the magistrate for identification parade. (ii) The Investigating Officer SIP Muhammad Soomar was allowed to remain present at the time of the identification parade. (iii) The ratio of dummies was 2 : 10 instead of 1: 10. (iv) PW Muhammad Israr has denied to have participated in any identification test of the accused. (v) Mashirs of the identification test are also not examined. In view of the above mentioned short-comings and legal defects in the identification test of accused Qaim and Abdul Ghaffar held through PWs Muhammad Ali and Muhammad Israr, we have no other option but to discard it from consideration, as it shall not be safe to put reliance upon it. Reliance is placed on, (1) PLJ 1964 Kar. 303, (2) 1974 P. Cr. L. J. 74 and (3) PLD 1981 SC 142. 31. Mr. Kamaluddin Advocate lastly submitted that except PW .Muhammad Israr, all other PWs viz. Muhammad Ali, Nazar Muhammad, Muhammad Siddique and Walidad are interested and inimical to the ccused, moreover they have improved their evidence from their earlier version, materially, and have proved to be not trust worthy witnesses, as such their evidence needs coiToboration from the independent witnesses which is lacking in the prosecution case, hence the prosecution has miserably failed to bring home the guilt of the accused through honest, trust­ worthy and credible evidence, without any shadow of reasonable doubts, as such the accused are entitled to benefit of doubt. 32. M/s Ali- Nawaz Ghanghro and Asif Ali Soomro Advocates of accused Abdul Ghaffar and Qaim respectively, who were all along assisting Mr. Kamaluddin Advocate during course of his arguments, adopted his" arguments and in addition submitted that on the point of identification of accused in Court by PW Nazar Muhammad, his evidence is not reliable as no identification test of accused was held through him before any magistrate, which was necessaiy, as the witness was not acquainted with the accused prior to the incident, reliance is placed on PLD 1965 Kar. 31. They further argued that statement under Section 164 Cr. P. C. is no evidence against the accused as held in (1) PLD 1959 Peshawar 115 and (2) 1995 MLD 515. It is further argued that the statements of prosecution's own witnesses recorded before a magistrate under Section 164 Cr. P. C. raise suspicion of statements being not voluntarily made as such the same are to be scrutinized with great care and caution reliance is placed on 1973 P. Cr. L. J. 448. In the end, they also submitted that the prosecution case is not free from reasonable doubts, as such the accused are entitled to the benefit of doubt. 33. Mr. Yar Muhammad Abbasi Advocate appearing for the State supported the conviction awarded to accused Ameen, saying that there is over-whelming evidence of PWs Muhammad All, Muhammad Siddique and Walidad against him on the point of abetment of the commission of offence punishable under Sections 302 and 365 - A PPC, as such his appeal deserves dismissal; while he did not support the convictions awarded to accused Qaim and Abdul Ghaffar, on the ground that in his opinion the prosecution ase against them is not free from reasonable doubts. But when we put questions to him with reference to the available record, he failed to reasonably satisfy us in forming his such opinion. He also failed to rebut the points raised and the arguments delivered thereupon by the learned defence counsels. 34. We have heard and considered the valuable arguments of the learned advocates of all the accused and have applied our judicious mind to the evidence adduced by the prosecution so also by defence and the ircumstances of the prosecution case, and are of the view that the learned trial court has not attached any importance to all the above circumstances and the points agitated before us, and has not even for a moment doubted the non-examination of the two abductees viz. (1) Abdul Hameed driver and (2) Haji Suleman Rahpoto who were mentioned in the FIR lodged by SIP Muhammad Soomar on behalf of the State on receipt of information through PW Muhammad Israr, who in fact ought to have been made informant instead of SIP Muhammad Soomar, in the FIR of this case. There is a great difference in the modus operandi of an informant/complainant and the Investigating Officer. The informant always desires that the accused named by him rightly or wrongly should be convicted but the Investigating Officer's duty is to honestly investigate the information of a crime lodged before him and to bring the guilt of the real culprits at home. So the practice adopted by SIP Muhammad Soomar to become himself Informant and the Investigating Officer as well, is not appreciated. 35. It is settled law that the onus to prove the case against the accused lies on the prosecution and all that the defence is to do is to make a dent in the case of the prosecution. In the instant case, the above discussion would amply show that the defence has succeeded in making such a dent. Of course, Section 8 of the Suppression of Terrorist Activities (Special Court) Ad, 1975 under which the accused were tried, provides for shifting of the burden upon the accused but that will be only in case where the prosecution has been successfully able toprima facie establish the guilt of the accused or that the accused are linked with commission of the offence. Reference be made to 1995 P. Cr. L. J. 1394. 36. The duty of the prosecution to prove its case against the accused beyond doubts does not diminish on raising of the defence plea. It is not the duty of the defence to disprove the case of the prosecution. The defence plea may be taken, may not be taken and may be some times it is not proved. The burden of proof is not upon the defence but is always upon the prosecution to prove its case against the accused beyond doubt. It is sufficient if the defence succeeds in causing a doubt in the credibility of the prosecution case. In the instant case, defence plea has shown that there is background of enmity between the parties and that the plea of alibi is also put forward and that the version of the prosecution witnesses is scattered in their crossexamination by the defence, and in such circumstances possibility of false implication can not be ruled out. It is the cardinal principle of law that every accused is to be presumed as innocent until prosecution proves its case against him beyond shadow of all reasonable and plausible doubt If the prosecution fails in its duty which never shifts to the accused, the accused becomes entitled to the benefit of doubt. Reliance is placed on 1993 SCMR 550. 37. For the facts and reasons mentioned above, we are satisfied that accused/appellants named above have not committed the offence of kidnapping the PWs Muhammad Ali, Nazar Muhammad, Abdul Hameed, Haji Suleman and deceased Ghulam Hyder, far ransom, and causing murder of abductee Ghulam Hyder, in the manner suggested by the prosecution, on the abetment or instigation of accused Ameen @ Muhammad Ameen. The prosecution has miserably failed to produce confirmatory evidence of independent, credible and of un-impeachable character, in this regard. In this case, there is a room for doubt and the benefit of which must go to the accused/appellants in both the appeals. We, therefore, set-aside their conviction and sentences awarded by the S.T.A. Court, Larkana under the impugned judgment. Both the appeals are allowed and in consequence the appellants named above are acquitted. They are in custody as such they may be released forthwith, if not required in any other case. (M.K.R) Appeals accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 33 (DB) Present: hussain adil khatri and abdul hameed dogar, JJ. GHULAM HUSSAIN-Appellant versus STATE-Respondents Criminal Appeal No. 23of 1995, accepted on 12-7-1995. (i) Benefit of doubt.-- -—Kalashnikov with magazine and 20 rounds-Recovery of~Conviction for- Challenge to-Name of Saeed-ur-Rehman, who joined as a witness of recoveiy was tampered as Fazal-ur-Rehman and was examined as recovery witness of weapon-In body and bottom of memo of recoveiy, name of Saeed-ur-Rehman has been over-written and tampered as Fazalur-Rehman~Signature of witness has been concealed-However in challan name of Saeed-ur-Rehman is mentioned as witness-In nonbailable warrant of arrest of prosecution witness for his production in court is that of Saeed-ur-Rehman-PW-2/Investigating Officer states that recoveiy was made in presence of Saeed-ur-Rehman-It is abundantly clear that recoveiy from appellant was made in presence of Saeed-urhman-Prosecution instead of Saeed-ur-Rehman has examined Fazalur-Rehman who does not figure anywhere in prosecution record-Held : Investigation papers have been tampered, serious doubt have crept in prosecution case, making it difficult to place explicit reliance on alleged recovery-Held further: Prosecution has failed to prove charge against appellant. [P. 35]A,B,C,D & E (ii) Arms Ordinance 1965 (W.P. Ord. XX of 1965)-- —-S. 13-D-Kalashnikov-Recoveiy of-Conviction for-Challenge to-No des­ cription of weapon with regard to its number etc. has been mentioned in memo of recoveiy, F.I.R. challan and any other document on record- Absence of description of above kind keeps gate open for substitution of weapon at whim of prosecution side, so that case could attract provisions of Suppression of Terrorist Activities Act, 1975, even where case, in fact originally was beyond its jurisdiction—It reflects on honesty of investigation and recoveiy and renders prosecution unworthy of any credence. [P. 35&36]F (iii) Mitigating circumstance-- —Kalashnikov-Recovery of-Evidence-Appreciation of-According to pro­ secution, weapon was carried, wrapping it in a cloth and keeping it in a basket to conceal it-However, neither cloth nor basket were produced in court—Held: Such failure in facts and circumstances of case, has assumed importance and reflects adversely on prosecution case. [P. 36]G (iv) Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 340(2)~Kalashnikov--Recovery of--Conviction for--Challenge to-­ Appellant in reply to court question had expressed his intention to examine himself on oath but court overlooked above statement and did not examine him on oath-Section 340(2) Cr. P.C. lays down that an accused person shall be a competent witness for defence and may give evidence on oath in disproof of charges or allegations against him-Held : Omission on part of court, in re-examining appellant as his own witness in disproof of allegations made against him, has vitiated trial-Appeal accepted. [P. 36] H & J Mr. Suleman Habibullah, Advocate for Appellant. Mr. Abdul LatifAnsari, A.A.G. Date of hearing: 12-7-1995. judgment Hussain Adil Khatri, J.~The present appeal is directed against judgment dated 26.1.1995 passed by the learned Judge Special Court-Ill for Suppression of Terrorist Activities Karachi in Special Case No. 120/93 wherein he found the appellant fuilty of possessing a klashinkov with magazine and 20 rounds without valid licence for it and accordingly convicted him for offence under Section 13-D Arms Ordinance 1965. He was awarded sentence of rigorous imprisonment for three years and fine of Rs. 2,000/-, in default of payment whereof he was to suffer further R.I. for two months. 2. The case of the prosecution is that on 12.8.1993 Sub-Inspector Tika Khan of P.S. Gulzar-e-Hyri Karachi was on patrol duty. When he eached Sohrab Goth Bus Stop at about 6-30 p.m. he found the present appellant alighting from a bus carrying a basket. On search of the appellant in presence of the witnesses he recovered one klashinkov loaded with a magazine containing 20 rounds. He enquired about the licence. Since the appellant was not in possession of any valid licence for the above weapon, he was arrested for an offence under Section 13-D of Arms Ordinance. The case was registered against him and he was challaned accordingly. 3. The appellant was convicted on the basis of evidence of P. W-l Fazalur Rehman and P.W-2 Tika Khan. P.W-l was examined as a witness of recovery of the weapon from the possession of the appellant. He had deposed that he was coming to Sohrab Goth. When he reached the bus stop, meant for passengers coming from Hyderabad, he saw the appellant alongwith a child. He was carrying a basket. One police officer took search and recovered klashinkov loaded with magazine. It was recovered by the police under memo'of recovery which has been produced as Ex. 4. The witness identified the same in Court. P.W.-2 Tika Khan narrated the same story and further stated that the recoveiy was affected by him in presence of the witnesses Saeedur Rehman and Abdul Rauf. 4. We have heard Mr. Suleman Habibullah, Advocate for the appellant and Mr. Abdul Latif Ansari, A.A.G. for the respondent. » 5. The learned counsel for the appellant has submitted that the name of Saeedur Rehman, who was joined as a witness of recovery, was tampered in the police record to read as Fazalur Rehman and it was one Fazalur Rehman, and not Saeedur Rehman, that was examined as prosecution witness to establish recoveiy of the weapon. 6. With the assistance of the learned advocates we have gone through the record. The memo of recovery of the weapon was produced as Ex. 4. In the body of the memo the name of Saeedur Rehman has been over written as Fazalur Rehman. At the bottom where the description of the name of the witness is given an attempt has been made for tampering the name of Saeedur Rehman to read as Fazalur Rehman. The signature of the witness thereon has been concealed applying whitener and the copy of the FIR which in fact is a carbon copy also shows that the same material has been used to conceal the word Saeed by over writing as Fazal. However, the challan mentions name of Saeedur Rehman as the witness and not that' of Fazalur Rehman. 7. The learned Advocate for the appellant also brought to our notice summons issued to the prosecution witnesses for their appearance before the trial Court on 21.10.1993. In the above summons the name of the above witness is described as Saeedur Rehman. In the copy of the said ummons again the name is described, similarly. He also brought to our notice the non-bailable warrant of arrest of the prosecution witness for his production in Court on 1.8.1994. This also describes the name of the witness as Saeedur Rehman. 8. P.W.-2 Tika Khan who has acted as an Investigating Officer and who alleges to have arrested the appellant and recovered the weapon from him, while deposing in Court stated that such recovery was made by him in presence of mashir Saeedur Rehman. 9. From the above it is abundantly clear that the recovery from the'appellant was allegedly affected in presence of Saeedur Rehman. The prosecution instead of producing the above witness, has examined Fazalur Rehman who does not figure anywhere in the. prosecution record. The evidence of Fazalur Rehman is, therefore, to be discarded. Having noted that the investigation papers have been tampered, serious doubts have crept in regarding prosecution case, making it difficult to place explicit reliance on alleged recovery. 10. No description of the weapon with regard to its number, etc., has been mentioned in the memo of recovery of FIR or challan or any other document on record. The absence of description of the above kind, keeps the gate open for substitution of the weapon, at the whims of the prosecution side, so that the case could attract the provisions of Suppression of Terrorist Activities Act 1975, even where the case, in fact, originally was beyond its" jurisdiction. It reflects on the honesty of the investigation and recovery and renders the prosecution unworthy of any credence. The record also does not show if the said weapon was kept under seal. The appellant is alleged to have alighted from the bus coming from Hyderabad . Therefore it is inferred that the appellant had carried the weapon from Hyderabad to Karachi . According to the prosecution the weapon was carried, wrapping it in a cloth and keeping it in a basket to conceal it. However, neither the cloth nor the basket were produced in Court. Such failure in the facts and circumstances of the case, has assumed importance and reflects adversely on the prosecution case. 11. The appellant in reply to the Court question had expressed his intention to examine himself on Oath but the Court overlooked the above statement and did not examine the appellant Section 340(2) Cr. P.C. lays down that an accused person shall be a competent witness for the defence and may give evidence on oath in disproof of the charges or allegations against him. The omission on the part of the Court, in re-examining the appellant as his own witness in disproof of the allegation made against him, has vitiated the trial. 12. In view of the above facts we find that the prosecution has failed, to prove the charge against the appellant. We, therefore, allow this appeal, set aside the impugned judgment dated 26.1.1995 passed by Special Court-Ill for Suppression of Terrorist Activities Karachi and acquit the appellant. He shall be released forthwith, if not required in any other case. (M.K.R.) Appeal allowed.

PLJ 1995 Cr PLJ 1995 Cr. C. (Lahore) 36 (DB) Present: falak sher and tassaduq hussain jilani, JJ. MUHAMMAD HAYAT alias MUKHTAR AHMAD-Appellant versus STATE-Respondent Criminal Appeal No. 836 of 1990 (M.R.No. 231 of 1991) decided on 16.10.1995. (i) Criminal Trial- -—Murder-Offence of--Conviction for-Challenge to--Stab wound given by appellant was found sufficient to cause death in ordinary course of nature-Probable time given between death and postmortem examination^ is consistent with time of occurrence-Nature of injury shows that deceased made no attempt to ward off attack—Held : Medical evidence lends support to ocular account that deceased was asleep when he was given stab wound. [Pp. 40&41] C (ii) Mitigating circumstance- —-Murder-Offence of-Conviction for-Challenge to-Appellant was a young man of 18 years at time of occurrence-Two days earlier, girl to whom he dreamt of being his wife, had been given in marriage to somebody else-It must have caused some provocation-He gave a single stab wound to eceased—An element of mystiy urrounds as to why PW-7 against whom ppellant had a direct motive, was not victim of attack-Held : There are extenuating circumstances which warrant lesser penalty-Death sentence converted into imprisonment for life. [P. 41] E & F (iii) Motive- —Murder-Offence of-Conviction for-Challenge to~Contentibn that grudge, if any; was not against deceased but against PW 7, hence motive was non-existent-It is in evidence that it was deceased who had asked PW 7, father of Mst. Samina Bibi, to shift her to Gujjarpura to avoid persistent demand of appellant for her hand-Thus appellant must have had a grouse against deceased—Held : Contention of appellant about nonexistence of motive, is not tenable. • [P. 40] A & B (iv) Recovery- —Murder-Offence of-Conviction for-Challenge to-Blood stained Chhuri was recovered from a public place which was accessable to general public- -None from locality was made to join recovery proceedings and when cross-examined, I.O. did not remember even time of recovery-Held : Absence of un-impeachable evidence of recovery would be a weak link in chain of prosecution case, yet this by itself would not off-set effect of overwhelming direct ocular account corroborated by medical evidence and evidence of motive-Held further : Prosecution has proved its case against appellant without a shadow of doubt. [P. 41] D Mr. Attaullah Mirza, Advocate for Appellant. Mr. J.V. Gardner, Advocate for State. Date of hearing: 16.10.1995 judgment Tassaduq Hussain Jilani, J.-Criminal Appeal No. 836/90 and the connected Murder Reference No. 231/91 arise from the judgment of the learned Additional Sessions Judge, Lahore whereby he on 5.12.1990 while convicting Muhammad Hayat appellant under Section 302 PPC for the murder of Muhammad Arif sentenced him to death and a fine of Rs. 10.000/- in default whereof to undergo two years RI. The fine, if recovered, was directed to be given to the.legal heirs of the deceased. 2. The prosecution story as given in the FIR (Exh. PA/1) registered by Khushi Muhammad SI (PW1) at 6.35 a.m. in the police station on the statement of Inayat All (PW5) which was recorded by Rashid Ahmad S. I. (PW11) (at 6.30 a.m.) at Moor Singh Pura is that the complainant Inayat Ali resides with his brother Muhammad Arif deceased. Muhammad Bashir, (PW6) who is brother-in-law of the complainant resided at Mohallah Rehmatpura Kot Khawaja Saeed. Muhammad Hayat appellant was neighbour of Bashir. He asked Bashir PW to give his grown-up daughter •Mst. Samina in marriage to him. He refused but Muhammad Hayat persisted with his demand. On being consulted the complainant and his brother Muhammad Arif deceased persuaded Muhammad Bashir PW to shift to Gujjarpura from Rehmatpura where the complainant and Muhammad Arif deceased resided. As Muhammad Bashir PW shifted to the afore-referred place, Muhammad Hayat appellant started visiting him even there. Muhammad Arif forbade him in consequence of which they exchanged^- hot words and Muhammad Hayat appellant once threatened that in case Mst. Samina was not given in marriage he shall teach him a lesson. About 7/8 days prior to the occurrence, appellant came to Muhammad Din, complainant's uncle, and repeated the threat. Muhammad Din apprised the complainant, Muhammad Arif deceased and his own son about the aforereferred incident. Mst. Samina was consequently married to some-body else ^ on 23-6-1989. On 25th June, 1989 at 4.30 a.m. as Muhammad Arif deceased was asleep and the complainant and Muhammad Ashiq PW were sitting on a cot nearby and having some conversation when-Muhammad Hayat appellant entered the courtyard by scaling over the outer wall. He proclaimed that he will teach lesson for the marriage of Mst, Samina. Muhammad Bashir PW also woke up. Within their view appellant gave a Chhuri blow to Muhammad Arif deceased which hit him on his right flank. The complainant, Muhammad Ashiq and Muhammad Bashir PW raised hue and ciy but the ~~ ' appellant threatened that in,case anybod^tried to come near him he shall also be treated in the same manner. Haying said this, he decamped by scaling over the wall. Muhammad Arif (deceased) was immediately shifted to the hospital but he siiccumbed to the injury on the way. He was initially taken to AllamaJqbal Medical College, tHospital where PW-9 Dr. Syed Bilal Hussain declared him dead. Thereafter at King Edward Medical College, Dr. Babar 'Nasir (PW8) examined Muhammad Arif deceased on 25-6-1989 at 3.30 p.m. He found the following injuries on his person :- "External injuries were stab wound horizontally placed on right outer side of abdomen going deep, 3 x 1 cm in size which was 13 cm from right anterior superior illiac spine and 30 cm below right axilla (tailing was present on outer side of stab wound" According to him, this injury was sufficient to cause death in th« ordinary course of nature and the probable time between death and postmortem examination was within twelve hours. 3. Having scribed the statement of the complainant (Exh. PA) PWll Rashid Ahmad sent the same to police station for formal registration of the case. Thereafter he went to Mayo Hospital, Lahore, prepared inquest report (Exh. PH) and statement of injuries (Exh. PI). From the hospital, he went to the spot and into possession blood stained earth and Gada (PI) vide recovery memo Exh. PC. He also took into possession the last worn clothes of the deceased vide recovery memo Exh. PB. These clothes were bed sheet (P3), Dhootis (P4) & (P5), Parna (P6) and Bunyan (P7). He arrested the accused on 27.6.1989 and the same day he led to the recovery of blood stained chhuri (P2) from Kachi Abadi Gujjarpura vide recovery memo Exh. PD. The attesting witnesses of Exh. PD are Muhammad Ashiq (PW 7) and Muhammad Bashir (PW6). 4. During trial, the prosecution- examined eleven witnesses including the doctor and the Investigating Officer. PW5 Inayat Ali narrated the occurrence which account was consistent with the prosecution story given in the FIR (Exh. PA/1). Muhammad Bashir appeared as PW 6 . He is brother-in-law of Inayat Ali complianant and lived in the same court-yard where Inayat and Arif (deceased) resided. He corroborated the statement of PW5 Inayat Ali on all material particulars. Muhammad Ashiq who is the first cousin of Inayat Ali appeared as PW7. He is yet another eye-witness who corroborates the statements of PW 5 and PW6. 5. The accused when examined under Section 342 Cr.P.C. denied the prosecution story and attributed false implication to enmity. 6. In support of this appeal, the learned counsel for the appellant has urged following pleas: (i) that the motive as per the prosecution story was against Muhammad Bashir as he had married his daughter to some­ body else despite the strong desire allegedly expressed by Muhammad Hayat appellant for her hand. If the prosecution story for motive is believed there was no reasons for Muhammad Hayat to murder Muhammad Arif deceased; (ii) that the prosecution story is unnatural inasmuch as if all the prosecution witnesses i.e. PW 5, PW 6 and PW 7 were present at the spot, they made no effort to defend Muhammad Arif deceased; (iii) that it was a night occurrence and the identification is doubtful. 7. Learned State counsel has defended the impugned judgment by submitting that the FIR was lodged promptly; that the ocular accounts consists of natural witnesses which stood the test of cross-examination and that the appellant had a strong motive to kill the deceased. 8. We have heard learned counsel for the parties and have also gone through the record. 9. The prosecution case consists of the ocular account, motive, medical evidence and the recoveries. PW 5 Inayat All, PW 6 Muhammad Bashir and PW 7 Muhammad Ashiq had furnished the ocular account. Although they are related with Muhammad Arif deceased but they are the natural witnesses of the occurrence and in absence of any enmity with the appellant, their testimony cannot be disbelieved. Their statements are consistent and despite a lengthy cross-examination to which they were subjected no inconsistency could be brought on i - ecord to discredit them. The delay of two hours in lodging the FIR is explainable as the immediate concern of the complainant party was to provide medical aid to Muhammad Arif (deceased), to shift him to the hospital and then at More Singhpura statement of Inayat Ali (PW 5) was recorded by Rashid Ahmad SI/SHO which formed basis of FIR (Exh. PA/1). The appellant had a motive to launch the attack. The argument of the learned counsel for the appellant that the grudge, if any, which formed basis of the alleged motive was against Muhammad Bashir P.W. and not Muhammad Arif deceased and therefore motive was non-existent, is not tenable for two reasons :-- (a) It is in evidence that it was Muhammad Arif deceased who had asked Muhammad Bashir, father of Mst. Samina Bibi, to shift to Gujjarpura to avoid the persistent demands of Muhammad Hayat appellant for hand of the afore-referred Mst. Samina Bibi. Muhammad Bashir shifted as advised and thereafter Mst. Samina was married with somebody else two days prior to the occurrence. Thus the appellant must have had a grouse against Muhammad Arif deceased that it was he who solicited Muhammad Bashir for shifting and for marrying Mst. Samina with another person; and (b) The question whether the particular fact could become a motive for the assailant is partly relatable to the subjective response of the persons concerned, therefore, it cannot be generalized. 10. Coming to the medical evidence we find that the stab wound given by the appellant was found to be sufficient to cause death in the ordinary course of nature. The postmortem examination of Muhammad Arif deceased was conducted at 3.30 p.m. The probable time given between death and the postmortem examination is 12 hours which is consistent with the j time of occurrence i.e. 4.30 a.m. Again the nature of the injury caused shows that Muhammad Arif deceased made no attempt to ward off the attack otherwise he could have received injuries on the hands or arms. This further leds support to the ocular account that the deceased was asleep when he was given the stab wound. So far as the recovery of blood stained chhuri is concerned, the same is not free from doubt as it was recovered from a public place which according to PW 11 Rashid Ahmad was accessible to general public. It was allegedly witnessed by Muhammad Bashir PW 6 and Muhammad Ashiq PW7. None from the locality was made to join the recovery proceedings and when cross-examined the Investigating Officer did not remember even the time of the recoveiy. The absence of unimpeachable evidence of recovery would be a rather weak link in the chain of prosecution case yet this by itself would not off set the effect of the overwhelming direct ocular account corroborated by the medical evidence and the evidence qua motive. We are, therefore, of the view that the prosecution has proved its case against the appellant without a shadow of doubt and the appeal against conviction of Muhammad Hayat appellant must fail. ll._ Coming to the question of sentence we find that there are extenuating circumstances which warrant lesser penalty. Muhammad Hayat appellant, at the time of occurrence, was a young man of 18 years of age. Only two days prior to the occurrence, the girl to whom he dreamt of being his wife i.e. Mst. Samina had been given in marriage to somebody else. It must have caused some provocation. He gave a single stab wound to Muhammad Arif deceased. An element of mysteiy surrounds as to why Muhammad Bashir against whom Muhammad Hayat appellant had a direct motive, was not the victim of attack. 12. In these circumstances, we are of the view that extreme penalty of death may not be consistent with the principles of safe administration of justice. Therefore, while maintaining the conviction of the appellant under Section 302 PPC we convert the sentence to life imprisonment and fine of Rs. 10,000/- in default whereof to undergo further RI for two years. The fine, if realised, shall be given to the legal heirs of Muhammad Arif deceased. Benefit of Section 382-B Cr. P.C. shall also be extended to him. 13. Murder Reference No. 231/91 and Criminal Appeal No. 836/90 are disposed of in the above-noted terms. Death sentence not confirmed. (MBC) Sentence altered.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 42 (DB) [Sukkur Bench] Present: M. hussain ADIL KHATRI and abdul hameed dogar, JJ. MINHON and another-Appellants V versus STATE-Respondent Criminal Appeal No. 65 of 1993 (Sukkur) Criminal Appeal No. 79 of 1994 ( Karachi ) accepted on 20.7.1995 Pakistan Penal Code, 1860 (Act XLV of 1860)- —Ss. 365-A and 149-Abduction for ransom-Offence of-Conviction for- Challenge to-Abductee and Mushtaque Ahmad PW have not implicated appellants in abduction-Confessional statement of appellant No. 1 also suffers from inherent violations-Voluntary character of confessional statement, as required under Section 164(3) of Cr. P.C. is missing in case- -No implicit reliance can be placed over it—It is settled law that retracted confession should not be acted upon and made basis for conviction unless it is corroborated in material particulars which is lacking in this case-­ Held : Prosecution has miserably failed to prove case against appellants- Appeal accepted. [Pp. 45&46]A,B & C Mr. Abdul Quadir Jatoi, Advocate for Appellants. Mr. Suleman Habibullah, Advocate for A.G. Sindh. Date of hearing: 20.7.1995 judgment Abdul Hameed Dogar, J.--The Special Judge (Suppression of Terrorists Activities), Larkana/Sukkur Division at Shikarpur has convicted the appellants under Sections 365-A and 149, PPC in Crime No. 18 of 1992 of PS Chak and sentenced them^to suffer RI imprisonment for life and confiscation of their movable and immovable properties. The appellants have been given a benefit of provisions of Section 382-B, Cr.P.C in the computation of their sentence. By this appeal, the appellants have challenged the above conviction and sentence passed against them. The brief facts are that SIP Mehar Ali of PS Chak lodged FIR as Crime No. 18 of 1992 on behalf of the State under Sections 365-A/149, PPC and 324, Qisas & Diyat Ordinance and 13-D of the Arms Ordinance stating therein that on 25.3.1992, he and his subordinate staff, ASI Amanullah, ASI Anwar Ali, PC Allah' Ditto, PC Inayatullah and PC Naseer Ahmed left the PS for patrolling and when reached at Dehar Bridge, they saw a car coming fastly. They followed the car till Katcha Forest area. Two culprits alighted from the car, one was armed with Klashnikov and was identified as Ghulam Hussain Mughal. The other culprit was empty handed. The accused Ghulam Hussain while firing at complainant party decamped, whereas other empty handed person was apprehended and who disclosed his name as Nisar and told that he is a taxi driver and co-accused Ghulam Hussain and others have used his car in the commission of the abduction of one Ram Chand from illage Esso, Aezoo. Appellant Nisar, and his car were hrought at PS where the complainant lodged FIR. As per the case of the prosecution, on 24.3.1992, one Ram Chand and Mushtaque Ahmad were abducted in a car at 10.00 a.m., while going to Basic Health Unit, Esso Aezzo, where Ram Chand was posted as Dispenser. ' This fact was disclosed by PW Mushtaque Ahmed before Investigating Officer, who recorded his statement. On 1.4.92, the appellant Nisar was picked by PW Mushtaque Ahmed and Muhammad Bachal in an identification test held before Asstt. Mukhtiarkar, Lakhi. On 15.5.1992, SIP Mehar Ali (complainant) received spy information that abductee Ram Chand is available in a hut in the forest near protective Bank of River Indus. He, alongwith police officials, immediately raided that place at about 3.30 p.m. and recovered abductee Ram Chand from a katcha hut with its door bolted from outside after an exchange of fires in between them and appellant Minhon, co-accused Ghulam Hussain, Azmat Jatoi and Ameer Bux Chandio. Co-accused Ghulam Hussain, Azmat Jatoi and Ameer Bux were said to be armed with Klashinkovs and appellant Minhon with shot gun. Co-accused Ghulam Hussain, Azmat Jatoi and Ameer Bux decamped and only appellant Minhon was apprehended. The complainant registered a separate FIR No. 23 of 1992 under Sections 307, 353 and 34, PPC at the same Police Station. On 26.5.1992, the appellant Minhon confessed his guilt and such confessional statement was recorded by Mukhtiarkar and FCM, Lakhi. Thereafter abductee Ram Chand also picked the appellant Minhon in an identification test held before the Illrd Class Magistrate, Lakhi. The police produced the charge sheet before Special Judge (STA), Larkana, showing the appellants in custody and co-accused Ghulam Hussain, Ameer Bux and Azmat as absconders. The case was received by the trial Court byway of transfer from the Court of Special Judge (STA), Larkana. The charge under Sections 365-A and 149, PPC was framed against the appellants Minhon, Nisar alias Ali Gul and co-accused Azmat Jatoi. They pleaded not guilty. The prosecution examined PW-1 Ram Chand (abductee), PW-2 Mushtaque Ahmed, PW-3 Abdul Rehman Siddiqui, Mukhtiarkar & FCM Lakhi, PW-4 Azizullah Memon, Asstt. Mukhtiarkar & Illrd Class Magistrate, Lakhi, PW-5 ASI Amanullah, PVV-6 HC Allah Warayo, PW-7 SHO Mehar Ali (IO) and PW-8 PC Naseer Ahmad. The appellants Minhon and Nisar alias Ali Gul and co-accused Azmat Jatoi were examined under Section 342, Cr. P.C. by the trial Court wherein they denied to have committed the offence. Appellant Minhon pleaded that he was falsely implicated by the police because his cousin had filed Constitutional Petition before this Court against SHO Rustam and also produced the certified copy of the said Const. Petition. He also produced duty report dated 14th May, 1992 in respect of abductee Ram Chand. The appellant Nisar had pleaded that he has been involved in that case, as Chak police had hired his taxi and on the demand of fare, the police became annoyed with him. Co-accused Azmat Jatoi has stated in his statement under Section 342, Cr.P.C that he is a victim of a private dispute in between Mehars and Jatois and was involved in this case at the instance of Ghous Bux Mehar. The appellants neither examined themselves on oath in disproof of the charges or allegations made against them, nor produced any witness in defence. The trial Court after assessing the evidence, convicted appellants Minhon and Nisar alias Ali Gul, whereas acquitted co-accused Azmat Jatoi by giving him benefit of doubt. We have heard the learned counsel Mr. Ghulam Qadir Jatoi for the appellants and Mr. Suleman Habibullah, AAG for the State and have also gone through the record of this case. The latter has not supported the impugned judgment and submitted that the prosecution has failed to prove the case against the appellants and the benefit of doubt be extended to them also. Mr. Jatoi contended before us that PWs Ram Chand (abductee) and Mushtaque Ahmed have not implicated the appellants with the commission of the offence before the trial Court and were declared hostile. PW Mushtaque Ahmed also denied the holding of identification in respect of appellants before Assistant Mukhtiarkar & FCM, Lakhi. The learned counsel lastly argued that the only piece of evidence against the appellant Minhon is of confessional statement made by him before the Mukhtiarkar & FCM, Lakhi on 16th May, 1992. He attacked this judicial confession on the following points :- (i) That the learned Magistrate did not observe the legal formalities while recording the confessional statement of appellant Minhon, as the appellant was handed over by the learned Magistrate after recording the above confessional statement to the same police which is not only against the basic ingredients of the rules of recording of confession but is also against the rule of natural justice. Learned counsel pointed out that the police, to whom custody was handed over, produced the appellant before the Asstt. Mukhtiarkar & Illrd Class Magistrate, Lakhi, where an identification test was said to have been held by him; and (ii) that the appellant had retracted the above judicial confession at the earliest possible opportunity, therefore, a retracted confession in absence of any other independent piece of evidence has got no value and one cannot be convicted without its independent corroboration. We have gone through the entire evidence on the i-ecord of this case. Abductee Ram Chand and PW Mushtaque Ahmed have not implicated the appellants on the factum of abduction and identification test during their examination before the trial Court. The confessional statement of appellant Minhon, on the face of it, also suffers from inherent violations. The formalities to be observed by a Magistrate, have not been followed by the Magistrate while recording confessional statement. So much so, the voluntary character of confessional statement, as required under Section 164(3), Cr.P.C. is missing in this case. It has been noticed that Mukhtiarkar & FCM, Lakhi has not taken process of recording the confession seriously and has acted in a mechanical manner without applying his mind to the legal pre-requisite to be observed. Appellant Minhon has not been assured by the Magistrate that whether he made confession or not, he will not be given back to custody of same police. There is a specific procedure to be followed while recording the confession: "As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before the Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over .the matter. Thereafter he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him :- (i) For how long have you been with police ? (ii) Has any pressure been brought to bear upon you to make confession ? (iii) Have you been threatened to make confession ? (iv) Has any inducement been given to you ? (v) Why are you making this confession ? (vi) Have you been maltreated by police ? Afte ng the accused's answers to the above questions, if the .ate is satisfied that he is making confession voluntarily, he hen put such questions to him, as are given in the printed ind then he should proceed to record his confession in Admittedly this procedure has not been adopted by the Magistrate while recording the confession in this case. As such no implicit reliance can be placed over it. It is now settled law that retracted confession should not be acted upon and be made the basic for conviction unless it is corroborated in material particulars. In this case also, no corrboration worthy of mention, has been brought by the prosecution in support of the above. At this stage, it may be pertinent to refer on this point 1984 P.Cr. L.J. 611 (d), (e) and (f) and PLD 1987 FSC 43 (f) and (g). We are, therefore, of the opinion that the prosecution has miserably failed to prove the case against the appellant and entire evidence lacks the degree of cogency. As such we allow this appeal and set aside the conviction and sentence awarded to the appellants by the trial Court and acquit the' appellants. By a short order dated 20.7.1995, we allowed this appeal, these are ' the reasons for the same. (ZB) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 46 (DB) [Circuit Bench Hyderabad ] ( Present: abdul rahim kazi and saifuddin agha, JJ. ALI NAWAZ and two others-Appellants versus STATE-Respondent Criminal Appeal No. 16 of 1995 ( Hyderabad ) and Cr: Appeal No. 151 of 1995 ( Karachi ) accepted on 17-9-1995. Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 103 Cr: P.C. read with S. 399 Pakistan Penal Code, 1860-Dacoity and police encounter-Offences of--Convietion for-Challenge to-Seven persons assembled for dacoity-Police raided on secret information and police encounter took place-Massive fu^ng.,was made by both sides-­ Three persons were arrested at spot a"hd weapons also recovered-Site of occurrence was surrounded by houses of local people, but no person from locality was associated as a witness—Held : Prosecution has failed to prove its case .against appellants beyond reasonable doubt-Appeal accepted. [Pp. 47,48&49] A, B & C Mr. Rasool Bux Unar, Advocate for Appellant. Date of hearing: 17.9.1995 order This appeal is directed against the judgment of the Judge Special Court I (Suppression of Terrorist Activities) Hyderabad in Case No. 65 of 1992 convicting the present three appellants under Section 399 PPC and sentencing them to suffer R.I. for 10 years each and to pay a fine of Rs. 10,000/- each and in default of payment of fine to suffer further imprisonment of one year. Briefly the facts are that one Haji Noor Ali Man, D.S.P. CIA Centre, Hyderabad registered an FIR with Chumbur Police Station under Section 399 PPC etc. being Crime No. 64 of 1991. The allegations according to FIR are that on the evening of 7.12.1991 the complainant had received spy information to the effect that the deceits have collected in the lands of Haji Ghulam Hussain Khokhar and they were likely to commit decoity. On receipt of such information the complainant collected police force from Matiari and Chambur Police Stations and also summoned the reserve police force in addition to CIA police and went to raid at the vardaat where they reached at 6.30 in the morning. According to complainant the deceits started firing at the police party to which the police paily also retaliated and an encounter took place for about half an hour and during the encounter the decoits Azeem Thebo, Sharif Kalro, Amanullah Lund and Janoo Leghari ran away. However, the police rounded-up and arrested the present three appellants and co-accused Hakim Ali and Allah Bachayo and recovered the weapons as shown from them alongwith the ammunitions and after completing usual investigation sent up the case for trial. Charge was framed against all the five accused under Section 399 PPC to which they pleaded not guilty and claimed trial. The prosecution examined the complainant DSP Noor Ali Mari, who has produced the mashirnama of arrest and recoveiy as Ex. 13 and also the FIR and Roznamcha of CIA. The prosecution then examined SIP Allah Bachayo, SIP Khan Nawaz and Abdul Razzaq then DSP Chambur. Thereafter the statement of accused was recorded under Section 342 Cr. P.C. wherein they denied the allegations made against them and claimed that they have been falsely implicated in the present case. They also asserted that they were never arrested in any encounter as alleged but were picked-up from their village alongwith their licenced weapons. The accused did not examine themselves on oath nor they examined any defence witness. The learned Trial Court thereafter passed the above said judgment whereby co-accused Hakim Ali and Allah Bachayo were acquitted with the observation that they were falsely implicated in the case and that the weapons allegedly recovered from them are the licenced weapons of their Zamindar Ghulam Hussain Khokhar. The present appellant was convicted and sentenced as above. Being aggrieved the appellants have preferred this appeal. We have heard Mr. Rasool Bux Unar, counsel for the appellant while none is present for the State. The learned counsel has challenged the judgment on a number of grounds. The veiy first contention of the learned counsel is that the prosecution has failed to comply with the mandatoiy requirements of Section 103 Cr. P.O. in-as-much as no private person has been associated in the case to act as mashir or witness. He has referred to the deposition of the complainant who has admitted that the police party had reached the place, where the deceits were said to have been sitting, at 6.30 in the morning which in the month of December is the time when FAJAR prayer is offered and obviously the people in the village would be awaken at that time. The deposition of the complainant also shows that the police party had reached that place in police vehicles and the place where they had stopped the vehicles was surrounded by the houses of the local people. He has also conceded in his cross-examination that the morning had already set in at the time when the encounter started. Thus it is quite obvious that in the morning time and in face of encounter of half an hour, where both parties started firing at each other, the local people must be watching the same but yet none of them has been associated as a witness or mashir. The complainant does not state if he had approached any of the private person to act as such mashir or witness. In these circumstances we have no hesitation in holding that the provisions of 103 Cr. P.C. have not been complied with and this itself alone would be sufficient ground to set aside the judgment and conviction. The other ground urged by the learned counsel is that admittedly the encounter has taken place for about half an hour and according to the prosecution case there were at least 9 deceits at whom the police party was firing but inspite of firing hundreds of rounds they have not been able to cause even a slight injury to any of the culprits. This speaks of the efficiency of our police force. The counsel has also pointed out that there is no document produced on record to show if any empty was recovered from the place of incident. What to talk of empty, even the mashirnama of vardaat has not been produced in the case as obviously the same would not have been prepared by the concerned officer. With regrets, we state that the Trial Court in his judgment has observed that the complainant in his evidence has produced mashirnama of wardat as Ex. 13 whereas that mashirnama is mashirnama of arrest and recovery and is not the mashirnama of vardaat. The trial court while writing the above judgment or dealing with the case ought to have been exercised in caution. The other ground urged by the learned counsel is that even on the face of it Section 399 PPC is not made out as according to Section 399 PPC the prosecution ought to have proved that the culprits had collected there with the intention to commit dacoity. In the first instance it is settled law that mere assembly of five or more armed persons at the place would not give rise to the inference that their intention was to commit dacoity but some overtact or same attending circumstances ought to have been proved to support such inference. Learned counsel has further argued that in the present case the trial court has itself held that coaccused Hakim Ali and Allah Bachayo were falsely implicated in the present case leaving only 3 accused and that neither the dacoity nor any unlawful assembly can be made out for collection of 3 persons. The minimum number required is 5. Learned counsel has also pointed out certain contradiction from the evidence of the complainant. However, lastly the learned counsel has argued that admittedly the information was received by the complainant about the presence of the dacoits on the evening of 7.12.1991 while he reached that place on the morning of 8.12.1991. It can hardly be assumed that the culprits who had assembled in the evening with the intention to commit dacoity would sit away whole night without commission'of such offence and awaited the police party in the morning to come there so that they may have encounter with them, this is highly unbelievable. In the light of the above discussion we are of the view that not only the prosecution has failed to prove the case against the appellants beyond any reasonable doubt but even the judgment is passed on inferences and surmises. Accordingly, we accept this appeal, set aside the judgment of the Trial Court and the conviction and sentence awarded to the appellant. The appellants shall stand acquitted. The appellants are in custody and shall be released forthwith if not required in any other case. (S.R) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 290 [ Rawalpindi Bench] Present: muhammad aqil mirza, J. USMAN ALI-Petitioner versus STATE-Respondent Criminal Misc. No. 622/B of 1995 accepted on 20.9.1995. Bail- —-Offence under section 302/34/109 Pakistan Penal Code, 1860--Bail--Prayer for-Petitioner being 16 years and a few months of age, is a minor and cannot be awarded capital punishment-Whether or not he had attained sufficient maturity so as to be able to understand consequences of his act and thus liable to tazir, is a matter of further inquiry—Petitioner is entitled to bail on ground that only Lalkara is attributed to him and he is not to have caused injury to any person, although he was armed with sothi~A.s to whether he raised Lalkara and whether Lalkara was of a commanding nature will be determined at trial-Held: There are no reasonable grounds for believing that petitioner has committed offence-­ Held further There are sufficient grounds for further inquiiy-Bail granted- [Pp. 294 & 295] A, B & C Mr. Sardar Muhammad Ishaque Khan Advocate for Petitioner. Mr. Nazir Muhammad Tahir, Advocate for Complainant. Mr. Qazi Ahmad Naeem Qureshi Advocate for State. Date of hearing: 30.9.1995. order Bail is sought by Usman Ali in a case registered under Sections 302/34/109 PPC vide FIR No. 84 dated 10.3.1995 at Police Station Pateh T. - Jang. 2. The allegations, as levelled in the FIR are that Taj Muhammad Khan and Bahadar Khan were sitting at the Bus Stand of Kot Fateh Khan on 10.3.1995. Usman Ali petitioner armed with Soti, Abdullah Khan armed with carbine 12-bore and Muhammad Khan armed with 12-bore gun came there. Usman Ali while addressing Taj Muhammad Khan and Bahadar Khan raised lalkara that they would be taught a lesson for getting a case registered against his uncle Abdullah Khan. Muhammad Khan fired at Bahadar Khan with his gun twice as a result whereof he fell down. Abdullah Khan fired at Taj Muhammad Khan with his 12-bore carbine but by mistake his own brother Muhammad Khan was hit by his gun shot. Abdullah Khan then fired again at Taj Muhammad Khan hitting him in his chest. Taj Muhammad Khan and Bahadar Khan died on the spot. Muhammad Khan brother of Abdullah Khan accused and father of the petitioner also died. The alleged motive is that TOYOTA HIACE vehicle belonging to Taj Muhammad Khan deceased was burnt by Abdullah Khan accused a week earlier to the lodging of the FIR. A case was registered against him for this incident. Aggrieved by the registration of this case Abdullah Khan, Muhammad Khan and Usman Ali murder Taj Muhammad Khan and Bahadar Khan, as aforesaid. 3. Sardar Muhammad Ishaque Khan, learned counsel for Usman Ali petitioner has raised the following contentions, in support of his prayer for grant of bail of his client :-- (i) The petitioner is 16 years of age and a student of 1st year. Being not adult he cannot be convicted under Section 302 PPC. He is a minor under Section 306 read with Section 308 PPC and is not liable to Qisas but he is liable to Diyat only, therefore, prohibitory clause of Section 497 Cr.P.C. is not applicable qua him. (ii) Only proverbial lalkara is attributed to him. Although he was armed with Soti. yet he did not cause injury to any person. Being a young boy and in terms of the language of the lalkara alleged against him, in the course of ordinary human conduct, he himself should have caused injuries with his Soti but there is no allegation that he caused injury to the deceased. At any rate, the Lalkara from a son to the father cannot be deemed to be of a commanding nature. (iii) The case of the petitioner is otherwise covered by Subsection (2) of Section 497 Cr.P.C., as no overt act is attributed to him. 4. Learned counsel for the complainant has vehemently opposed the grant of bail. He has submitted that even if the petitioner is not adult in the sense that he is less than 18 years of age, he is fully grown up having height of 5 feet and 10 inches and capital punishment can be awarded to him in Tazir. He has further argued that although there is no allegation that the petitioner caused injury with the Soti yet there are two blunt weapon injuries on the person of one of the deceased persons, which were obviously inflicted by the petitioner. He has further argued that the petitioner has at. any rate abetted the offence and is equally liable for the murder of two persons. Learned State counsel has adopted the arguments addressed by the learned counsel for the complainant, and has opposed the bail application. For the offence of Qatl-i-amd capital punishment cannot be awarded to a minor-even if he is found to be guilty of murder. A minor is not liable to Qisas under section 306 PPC, which reads as under : — "Qatl-i-amd shall not be liable to qisas in the following cases, namely : -- (a) When an offender is a minor or insane: Provided that, where a person liable to qisas associates himself in the commission of the offence with a person not liable to qisas with the intention of saving himself from qisas, he shall not be exempted from qisas; (b) when an offender causes death of his child or grandchild, howlowsoever; and (c) when any wall of the victim is a direct descendant, howlowsoever, of the offender." Under Section 308 PPC a person who is not liable to qisas under Section 306 PPC is liable to diyat. Section 308 PPC is reproduced below : -- "(1) When an offender guilty ofqatl-i-amd is not liable to qisas under Section 306 or the qisas is not enforceable under clause (c) of Section 307, he shall be liable to diyat: Provided that, where the offender is minor or insane, diyat shall be payable either from his property or, by such person as may be determined by the Court: Provided further that, where at the time of committing qatli-amd the offender being a minor, had attained sufficient maturity or being insane, had a lucid interval, so as to be able to realize the consequences of his act, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as tazir. Provided further that, where the qisas is not enforceable under clause (c) of Section 307, the offender shall be liable to diyat only if there is any wall other than the offender and if there is no waii other than the offender, he shall be punished with imprisonment of either description for a term which may extend to fourteen years as tazir . • • (2) Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as tazir". A minor means a person who is not an adult vide value (I) of Section 299 PPG. An adult is a person who has attained the age of 18 years as per clause (a) of this Section. Therefore, the admitted position that emerges is that the petitioner is a minor for the purpose of offence under Section 302 PPC. Under the second proviso of Subsection (1) of Section 308 PPC a minor who has attained sufficient maturity, can be punished with imprisonment of •^ either description for a term which may extend to fourteen years as tazir. Therefore, the petitioner though minor, can be punished for a term up to fourteen years as tazir. However, the precise contention which the learned counsel for the petitioner in this behalf has raised is that the question as to "whether a minor has attained sufficient maturity, will be determined by the Court at the trial after recording evidence, and therefore, this veiy question that a minor is liable to tazir is of further inquiry. At this stage when the petitioner has not been put to trial, being a minor he is only liable to diyat. Thus according to him, petitioner's case is not covered by the prohibitory clause of Subsection (1) of Section 49? Cr.P.C. and he is entitled to bail. Similar proposition came up for consideration before their lordships of the Supreme Court in Sajjad Ahmad v. Muhammad Amir and another (Crl. Appeal No. 372 of 1994). The facts of that case are that Muhammad Amir on the ground of minority was granted bail by the High Court, treating his case to be of further inquiry, as to wether or not he had attained sufficient - maturity to understand the consequences of his act, which could be determined on the basis of the evidence to be led by the parties during the trial. The said Muhammad Amir at the time of incident had attained the age of 16 years 8 months and 19 days. The Honourable Supreme Court held as under:-- "The learned Judge in the High Court took note of the fact that under Sections 306 and 308 PPC. capital punishment cannot be awarded to a minor even if he »r found guilty of murder although under the Second Proviso of Subsection (1) of Section 308 PPC, he may also be punished with imprisonment of either description for a term which may extend to fourteen years as tazir if at the time of committing qatl-i-amd the minor offender had attained sufficient maturity to realize the consequences of his act. The learned Judge rightly observed that this aspect of the matter could only be determined during the trial on the basis of evidence adduced by the parties and was, therefore, a case of further inquiry. Thus visualised, the discretion exercised by the learned Judge in allowing bail to the respondent under the first proviso to section 497 Cr.P.C., is not open to exceptior,". The bail granting order of the High Court was upheld and the appeal of the complainant was dismissed by upholding the view of the learned High Court, that where the minority of the accused, prima facie, stands proved, it is a case of further inquiry on the basis of which bail can be granted to a minor, in a case involving capital punishment. 6. Respectfully following the dictum laid down in the afore quoted judgment of the Supreme Court, I am of the view that the petitioner in the present case being 16 years and a few months of age is a minor and he cannot be awarded capital punishment. Whether or not he had attained sufficient maturity so as to be able to understand the consequences of his act and thus liable to tazir, is a matter of further inquiry which shall be decided by the trial court after recording the evidence at the trial. Therefore, his case does not fall within the mischief of the prohibitory clause of Section 497 Cr.P.C. Till such time that it is held that he was sufficiently mature to understand the consequences of his act and hence liable to tazir, he will be deemed to be liable to the punishment ofdiyat oaly. 7. Apart from the question of minority the petitioner is entitled to bail on the grpund that only Lalkara is attributed to him and he is not alleged to have caused injury to any person, although he was alleged to be armed with a Soti. As to whether or not he raised a Lalkara'and whether the Lalkara was of a commanding nature will also be determined at the trial. 8. Muhammad Khan brother of Abdullah Khan also died during the occurrence. It is alleged in the FIR that Abdullah Khan fired at Taj Muhammad Khan but by mistake the shot hit his own brother Muhammad Khan instead of hitting Taj Muhammad Khan. Learned counsel for the petitioner has invited my attention to this particular injury suffered by Muhammad Khan deceased. It is described as follows in the post mortem report:-- "A gun shot inlet would on (L) limber region 3x3 cm blackening and charring present." 9. There appears to be force in the contention raised by the learned counsel that the above injury shows that Muhammad Khan was fired at from a very close range. Prima facie, this injury was unlikely to have been caused by his own brother by mistake. Therefore, there appears to be something more which has not come on record so far, which happened at the time of occurrence. This also makes it a case of further inquiry for the purpose of grant of bail. 10. For what has been discussed above, I am of the view that there are no reasonable grounds for believing that the petitioner has committed the offence alleged against him and there are sufficient grounds for further inquiry into his guilty. Accordingly, the petitioner has become entitled to the grant of bail. 11. For the aforesaid reasons, petitioner is allowed bail subject to his furnishing bond in the sum of Rs. 1,OQ,000/- (Rs. one lac only), With two sureties, each in the like amount, to the satisfaction of Assistant Commissioner, Fateh Jang. 12. It must be stated that nothing said therein will prejudice the prosecution case at the trial, because the observations made about are of tentative nature, made for the purpose of deciding the question of grant of bail only. K.K.F. " Appeal accepted

PLJ 1996 Cr PLJ 1996 Cr. C. Lahore 689 (DB) [Multan Bench] Present : MALIK MUHAMMAD QAYYUM AND RlAZ HUSSAIN, JJ ABDUL REHMAN etc.-Petitioners versus STATE etc.-Respondents Intra Court Appeal No. 154/94 dismissed on 14.3.1995 Constitution of Pakistan, 1973-- —Art. 199--F.I.R--Quashment of-Offence U/Ss. 353, 186, 506 and 332 PPC- -Contention that case against appellants was registered mala fide-ln order to determine correctness or otherwise of this plea, Court will have to dilate upon controversial facts, which is beyond limited scope of writ jurisdiction-Held : Appeal is devoid of merits and is hereby dismissed in limine. [P. 690] A Pir Muhammad AsifRafi Khagga, Advocate for Petitioners. Date of hearing: 14.3.1995. order Malik Muhammad Qayyum, J.--This Intra-Court Appeal is directed against the order dated 14.12.1994 passed by the learned Single Judge whereby he dismissed W.P. No. 5927/94 seeking cancellation of the case FIR No. 282 dated 26.11.1994 for the offence under Sections 353, 186, 506 and 332 PPC registered at P.S. Qureshi District Muzaffargarh. 2. The brief facts giving rise to this appeal are that Doctor Sadiq Mahmood Suhrani, respondent No. 8 herein, lodged the aforesaid FIR, which was to the effect that he was Incharge Rural Health Centre Basira District Muzaffargarh. On 26.11.1994 when he was present in his office, Abdul Rehman Radiographer of the same hospital, alongwith his father and brother, entered into his office and exhorted that they would teach him a lesson for initiating the proceedings against Abdul Rehman. They caused him many injuries with their fist blows. He was rescued by the witnesses present therein. When they left the office, they warned him that if he took some action against them, he will be done away with. 3. Learned counsel for the appellants, at the very outset, submitted that the will confine his arguments to his plea meant for quashment of the FIR and will not press other reliefs either mentioned in the writ petition or reiterated in this appeal. He contends that even from the perusal of the FIR, no cognizable offence was made out. In this respect, he specifically referred to Section 506 PPC. Section 503 PPC, which defines the criminal intimation, is as follows: "Criminal intimidation, Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation". Assuming the facts correctly stated in the FIR, it appears that the appellants not only criminally intimidated respondent No. 8; they also used the criminal force to deter him from discharging his duty. 4. Learned counsel for the appellants also contends that the case against the appellants was registered mala fide. This plea is not discernible from the record itself. Therefore, it cuts no ice. In order to determine the correctness or otherwise of this plea, the Court will have to dilate upon the controversial facts, which, we are of the opinion, were beyond the limited scope of the writ jurisdiction. Reliance in this respect can be placed on Muhammad Saeed Azhar v. Martial Law Administrator, Punjab and others (1979 SCMR 484), wherein it was observed that: "Question of alleged mala fides on part of local police requires factual investigation. Factual investigation could not be undertaken by High Court in exercise of its writ jurisdiction". 5. It is pertinent to note here that respondent No. 8 was medically examined on 26.11.1994. One of the injuries found on his person was subsequently declared grievous vide report dated 7.12.1994. It will be for the rial Court to determine whether this injury was in fact grievous or not. In view of the above, we hold that the learned Single Judge, while dismissing the writ petition, exercised his discretion properly. This appeal is devoid of merit and is hereby dismissed in limine. (K.K.F.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 691 (DB) [Circuit Court Hyderabad] Present: shah nawaz awan and rana bhagwan das, JJ. ROZE MUHAMMAD KHAN-Applicant versus STATE-Respondent Cii. Bail Application No. 542 of 1995 accepted on 18.3.1996. Bail- -—Application U/S 497 Criminal Procedure Code, 1898-Offence U/Ss. 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with Narcotic Substance Ordinance, 1996-Bail--Grant of-Prayer for-Search of applicant/accused was taken by a person (Assistant Sub Inspector Police) who was not authorised under Section 19 of Control of Narcotic Substance Ordinance, 1996-Recovery is not made before mashirs who were available on spot such as Rickshaw Driver etc.--Held : Case of applicant falls under definition of further inquiry-Petition accepted. [P. 692] A Mr. Shaukat All Advocate for Applicant. Mr. Abdul LatifAnsari, Advocate for State. Date of hearing: 18.3.1996. order Shah Nawaz Awan, J.--This order will dispose of bail application filed on behalf of accused abovenamed who has been booked to face his trial under sections 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 vide F.I.R. No. 51/1995 registered at Police Station Kotri. The brief facts of the prosecution case are that the complainant Farooq Qadir Lakher ASI while on patrol duty alongwith his sub-ordinate staff reached Gulshan-e-Shahbaz at about 1400 hours and started checking the vehicles which were passing on the National Highway. At about 1500 hours a Rickshaw came from Jamshoro side, the police stopped the Rickshaw and checked the person sitting in it. On personal search of said person, ASI recovered a big piece of charas covered in the plastic from the fold of his shalwar ASI took the charas in custody and arrested the accused. The said ASI secured the charas and prepared mashirnama in presence of mashirs and enquired the name of the person who disclosed his name as Roze Muhammad Khan S/0 Dad Muhammad. The ASI then brought the charas and the accused at the police station and registered the case. Mr. Shaukat Ali, learned advocate for the applicant contended : firstly that the ASI who had arrested accused and recovered the alleged charas is not authorised under section 19 of the Control of Narcotic Substance Ordinance to take search of the suspected person as according to said section the police officer not below the rank of Sub Inspector of Police can take search of the suspected person, therefore the entire exercise of the ASI is futile and secondly that the driver of the Rickshaw from where the alleged charas was recovered has not been made as a mashir of recovery and the mashirs who have acted are all police personnel as such the accused is entitled for concession of bail. Mr. Abdul Latif Ansari, learned Assistant Advocate General has frankly conceded for grant of bail to accused on the ground that there is violation of section 19 of the Control of Narcotic Substance Ordinance as the alleged search has been taken by a person who was not authorised as it is provided under the law that police officer not below the rank of Sub Inspector of Police can take search of the said person. In the circumstances, learned Assistant Advocate General has stated no objection for grant of bail to accused. We have heard both the counsel at great length and have perused the entire record of the case. It is an admitted fact that the search of the accused was taken by a person who was not authorised under the Control of Narcotic Substance Ordinance to take such search and further the recovery is not made before the mashirs who were available on the spot such as Rickshaw Driver or any other person present on the spot therefore we are of the view that the case of the present applicant falls under the definition of further inquiry, and inclined to grant bail to applicant subject to his furnishing a solvent surety in the sum of Rs. 50,000/- (Rupees fifty thousand only) and P.R. bond in the like amount to satisfaction of the trial Court. (K.K.F) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 692 [Circuit Court Hyderabad] Present: rana bhagwan das, J. YOUSUF-Applicant versus STATE and another-Respondents Crl. Revision No. 61 of 1994 disposed of on 14.3.1996 Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-Ss. 193 & 205--Perjury and Impersonation-Offence of-It is hardly difficult to subscribe that applicant had prima facie committed offence under section 193 and 205 PPG, therefore, show cause notice issued to applicant as well as cognizance of offence taken was bad in law-Held : Both orders are liable to set aside-Order accordingly. [P. 694] A Mr. Ahsan-ul-Haq Siddiqui, Advocate for Applicant Mr. Abdul LatifAnsari, Advocate for State. Date of hearing : 14.3.1996. judgment The applicant who stood surety for accused Amanullah in Bail Application No. 98 of 1994 in the Court of learned Sessions Judge, Hyderabad has called into question the show cause notice issued by learned Sessions Judge and the order dated 10.10.1994 taking cognizance of the offences under section 193 and 205 PPG within the meaning of section 476 Cr.P.C. 2. Alongwith his affidavit of solvency the applicant submitted his National Identity Card which was suspected and referred to the Assistant Director, District Registration Office, Hyderabad for verification and report. The latter on his part reported that the applicant has obtained duplicate Identity Card by making a false statement and they contravened the provisions of section 11 of National Registration Act, 1973. On receipt of this eport, learned Sessions Judge issued a show cause notice calling upon the applicant to show cause within seven days to why he should not prosecuted for offences punishable under section 193 and 205 PPC. 3. Applicant submitted a detailed reply to the notice explaining his position and stating that he had neither committed perjury nor impersonated any one else as he has appeared himself genuinely and obtaining a duplicate National Identity Card had nothing to do with the offences alleged against him. Learned Sessions Judge being not satisfied with this reply took a view that the applicant had produced a forged Identity Card and sworn a false affidavit by styling himself as Yousuf S/O Fateh Muhammad. He, therefore, decided to proceed against the applicant as stated above. 4. After hearing learned counsel for the parties and perusing the report submitted by the Assistant Director, District Registration Office and looking into photo-copies of the original N.I.C as well as duplicate NIC and a glance at both the original N.I.Cs I am of the view that the photograph is one nd the same except that there has been a charge in physique and clothing by reason of difference of the period, otherwise there is hardly any difference. It is conceded at the bar that the applicant Muhammad Yousuf appeared for himself as a genuine person without committing an act of impersonation within the meaning of section 205 PPC. The report relied upon by the learned Sessions Judge tends to show that there was some tampering with the photograph affixed on the original NIC which might be in contravention of the provisions of the National Registration Act of which cognizance by a court of law could only be taken on the written complaint of the Registrar General Registration vide section 12. 5. In the facts stated above and from the record, it is highly difficult to subscribe to the view that the applicant had prima facie committed offences under section 193 and 205 PPC, therefore, show cause notice issued to him as well as the cognizance of the offences taken was bad in law. Both the orders are, therefore, liable to be set aside and I order accordingly. With these observations, revision application as well as miscellaneous application stand disposed of. (K.K.F.) Order accordingly

PLJ 1996 Cr PLJ 1996 Cr.C (Lahore) 694 [Multan Bench] Present: riaz hussain, J. KANWAR ABDUL RASHID-Petitioner versus Capt. MUNIR AHMAD, A.C. ARIFWALA DISTT. PAKPATTAN and 5 others—Respondents Writ Petition No. 5880 .of 1995 dismissed on 10.1.1996 Constitution of Pakistan, 1973-- —Art. 199-Major girl-Custody of-A lawfully married major girl who apprehended danger at hands of her parents may be handed over to them or to be set her at liberty-Question of-Life of a person is most sacred thing on earth—If from surrounding circumstance, Court believes that a major girl whose custody was to be decided might be killed by parents or other close relatives, if handed over to them, then it was better to set her at liberty-Held : Court is not inclined to hand over her custody to her parents. [P. 699] A Ch. Abdul Sattar Goraya, Advocate for Petitioner. Mian Mushtaq Pervaiz Abbasi, Advocate for Respondent. Habib Ullah Shakir, Advocate Maului Soltan Alam, Advocate for Zaman Khan S.I. and other Police Officials. Mr. M. Naeem Sarwar, Assistant Advocate General. Date of hearing: 10.1.1996. order Brief facts leading to this writ petition are that case F.I.R No. 162 for the offence under Section 11 of Offence Zina (Enforcement of Hudood) Ordinance, 1979 was registered respondent No. 5 wherein it was alleged that he abducted Mst. Mubin Kasuar, niece of the complainant. Mst. Muhin Kausar produced on 28.12.1995 hefore my learned brother Tassaduq Hussain Jilani, She was directed to be lodged in Dar-ul-Aman meanwhile and be produced on 3.1.1996. She was produced accordingly but since the learned counsel for the parties submitted that efforts were being made to settle the dispute, the alleged detenue Mst. Mubin Kausar was again sent to Dar-ul-Aman and was directed to be produced today. She is present. 2. Learned counsel for the petitioner submits that Mubin Kausar was forcibly abducted by respondent No. 5 and therefore, under these circumstances any Nikah of Mubin Kausar with him was of no legal consequence. He further submits that to hand over Mubin Kausar to respondent No. 5 or to set her at liberty will mean to allow her to accompany her paramour. He has placed reliance on the following judgments :— 1. Shaukat All versus Altaf Hussain Qureshi and another (1972 SCMR 398). 2. Shah Din and other versus The State (PLD 1984 Lahore 137). 3. Syed Farman All versus Abid All and others (PLD 1995 Lahore 364). 3. In Shaukat All's case the detenue was not produced before the High Court and so it was unable to ascertain the correct position regarding her marriage with the petitioner of that case and this ground amongst others pursuaded the Honourable Supreme Court to dismiss the petition meant to restore the custody of alleged detenue. 4. In Shah Din's case the bail application was filed which was allowed in view of the fact that the alleged abductee in that case was sui juris and the allegation that she was forced to solemnise Nikah was yet to be looked into. However the learned Judge deemed it proper to mention that in such cases it was the duty of Nikah Registrar, appointed under Muslim Family Laws Ordinance, 1961 to demonstrate more sense of responsibility before authenticating the Nikah by making proper inquiries as to the competency of the parties to understand the nature of their act. 5. In Syed Farman Ali's case the learned Judge was of the opinion that the alleged abductee Mst. Saima was neither capable to understand the nature and effect of the transactions made by her nor had the capacity to manage her affairs independently. 6. Learned counsel for the respondents on the other hand have relied upon the following case law :-- 1. Mst. Bushra Bibi versus S.H. 0. (1995 P.Cr.L.J. 401). 2. Mst. Razzia Bibi versus Station House Officer Gunjial. Tehsil and District Khushab and 2 others (1995 P.Cr.L.J. 797). 3. Mst. Waziran and others versus Superintendent of Police, Bhakkar and Others (1995 P.Cr.L.J. 996). 4. Mst. Samina Ali versus Station House Officer (PLD 1995 Lahore 629). 5. Mst. Aziz Mai versus S.H.O. Police Station Jalalpur Pirwala, District Multan and another (PLD 1977 Lahore 432). 7. In Mst. Aziz's case it was observed as follows :— "Learned counsel for the complainant argued that the marriage was void as the appellant was not competent to enter into such an agreement. He next contended that the Intra-Court appeal is incompetent. We have heard lengthy arguments and are unable to agree with the submissions made. In paragraph 251 of Chapter XIV of the Principles of Mohammedan Law by D.F. Mulla, 1975 Edition, it is mentioned that "every Muslim of sound mind, who has attained puberty, may enter into a contract of marriage." In the explanation it is mentioned puberty is presumed, in the absence of evidence, on completion of the age of fifteen years. It cannot be argued with success that the girl had not attained the age of puberty. Even according to learned counsel for the complainant the age of the girl as per birth certificate at the time of abduction was fourteen years and some months. Furthermore the girl is pregnant for the last 6/7 months. The fact has not been denied by learned counsel for the respondent. In these circumstances, we are of the view that the appellant had attained the age of puberty when she entered into the marriage contract with Ghulam Farid. Learned counsel for the complainant cited Allah Diwaya v. Mst. Kammon Mai (1) and Mst Atkia Begum v. Muhammad Ibrahim Rashid Nawab (2) in support of his contention. In the latter case the criteria laid down by the Judicial Committee is that the girl attains majority on happening of either of the two events, namely, the completion of 15 years or attainment of a state of puberty at an earlier period, which obvious means the first menstruation." In Mst. Razia Bibi's case, the learned Judge made the following observations:-- "As already observed, it is an admitted fact that the petitioner is sui juris and contracted marriage of her own accord and free will on 4.6.1964 which has been confirmed by her in statement recorded by the learned Magistrate Section 30, on 16.6.1994 and even today in this Court, the petitioner confirmed her stand in the presence of her father. As the case was cancelled after proper inquiry on 12.8.1994, further investigation to probe into the authenticity of Nikahnama in spite of oath taken on Holy Qur'an by seven witnesses of Nikah voluntarily is nothing but abuse of process of law and humiliation of spouses. It is now well-settled law that proceedings under Article 199 of the Islamic Republic of Pakistan will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranted by the Constitution of it violates some other law or is motivated for mala fide reason and the sections of the Police Officers are in no case sacrosanct so as to exclude from judicial scrutiny. According to Muhammadan Law marriage is not sacrament but is a civil contract and eveiy Muslim of sound mind who has attained puberty is entitled to enter into a contract of marriage and is at liberty to many any one he or she likes and the guardian has no right to interfere. According to Article 35 of the Constitution it is the duty of the State to safeguard the fundamental right of marriage. I am constrained to observe that such marriage without the consent of parents particularly by young girl may be against the family tradition and moral values but has the sanction of law and such spouses cannot be deprived if valid legal valuable right, because of above consideration." In Mst. Bushra Bibi's case it was observed as under :-- "From the above, it is, thus, established that the age of Mst. Bushra Bibi, petitioner, at the time of Nikah was not less than 15 years. Reliance can also be placed on the case of Tahir v. The State 1990 P.Cr.L.J. 1198 for a view that X-ray report is preferable against school certificate regarding age. According to Muhammadan Law, the age of puberty is even taken to be 15 years and below for the purposes of puberty. Mst. Bushra has admittedly entered into marriage with Syed Muhammad Asif Iqbal five months prior to lodging of the F.I.R. Further according to Article 35 of the Constitution of Islamic Republic of Pakistan, it is the duty of the State to safeguard the fundamental right of marriage. In the case of Adamjee Insurance Company Limited v. Assistant Director 1989 P.Cr.L.J. 1921 it was observed by their Lordships of the Supreme Court that proceeding under Article 199 of the Constitution will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons." In Mst. Waziran's case the learned Judge suspended the investigation of F.I.R. till such time the controversy was finally resolved by the learned Family Judge. In Samina-All's case it was observed :-- "For all purposes provisions may be interpreted in favour of a woman who is actually kidnapped, abducted or induced to compel for marriage against her will or will be compelled and in this way the wrong done to her shall be redressed in terms of provision of this section but these in no case can be interpreted against a woman who is sui juris and for all purposes can enter into contract of marriage out of her sweet will, choice and consent. Any such contract of marriage, howsoever to the detriments, or blood relations is a sacred document and has to be given due consideration after its bonafides are proved. No investigating agency can flout the same and use the registration of case as a whip against the martial spouses to avenge the vengeance of annoyed relatives and flout the sacred institution of marriage against the Injunctions of Holy Qur'an which gives great emphasis to the reunion of marital spouses." 8. There is no denying the fact that Islam has permitted a woman to enter into a contract of marriage with her free consent if she was major. A minor girl given in marriage by her guardian can also repudiate the same on attaining majority. This right is technically called an option of puberty ( ) It is excruciatingly painful that the women-folk in our country are being deliberately deprived of this right which was bestowed upon them about 1400 years ago mainly for the reason that by and large they were not of independent means. 9. In this case the statement of Mst Mubin Kausar was recorded. She while making the statement did not shilly-shally but was firm to express that she wanted to accompany Muhammad Afzal and that she apprehended danger at the hands of her parents. She also stated that when she was directed by the Court to sit with her parents to have a talk with them, they used physical force to drag her and to take her alongwith them. 10. The Qur'anic verse 34 of Sura An-Nisa starts with and in Tafhim-ul-Qur'an (Vol. I) at page 349, as under :-- 11. In some cases when the custody of a woman was given to her parents/ close relatives or she was released on bail when the surety was a Mahram ( ( fif } ), she was mercilessly murdered by them although the presumption was that being ( ( Oy^/ 1 ) they would be in a better position to protect her life. Perhaps they committed that heinous act because they were pathological egocentric which phenomeno.n is not rare in a male hegemonic society in which we live. 12. The life of a person is the most sacred thing on the earth. If from the surrounding circumstance, the Court believes that a major girl whose custody was to be decided might be killed by the parents or other close relatives, if handed over to them, then it was better to set her at liberty. 13. Learned counsel for the petitioner submits that he does not press the other reliefs detailed in this writ petition. 14. For the foregoing reasons I am not inclined to hand over her custody to her parents who are present in the Court and instead set her at liberty so that she may not face any situation endangering her life because there is sufficient material on the record to presume so. Statement of Mst. Mubin Kausar detenue on oath I am wife of Muhammad Afzal and I have contracted a valid marriage with him. Earlier I made a statement in Cr. Misc. No. 229-1 of 1994 that I would like to accompany my father solely for the reason that some compromise might be effected between my parents and my husband. Today I was allowed to sit with my parents by this Court but my parents made efforts to use physical force to accompany them but I thwarted their efforts. I apprehend danger at the hands of my parents. I will like to accompany my husband

PLJ 1996 Cr PLJ 1996 Cr. C ( Karachi ) 700 Present: SHAFi MUHAMMADI, J. OMAIR AHMAD SIDDIQUI-Applicant versus STATE-Respondent Misc. Application No. 972 of 1995, in Criminal Bail Application No. 679 of 1995, dismissed on 1.2.1996 (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 561-A read with Section 497--Various offences-Bail-Grant of-Prayer for-When a Bench dismisses bail application of an accused, then an application on behalf of same accused through same advocate or through some other advocate is moved before another Bench under Section 561-A for quashment of whole proceedings without disclosing dismissal order passed in bail application of same accused, it is much more serious professional misconduct-Held : In such cases, such an application is entitled to be dismissed on ground that it was moved not with clean hands-Held Further : Superior Courts have enunciated such principles to avoid contradictory judgments not only to save superior courts from any disrepute but also to shatter foundation of any possible corruption in subordinate judiciary-Bail refused. [Pp. 704 & 705] B, C & D (ii) Practice and Procedure- —Various Offences-Bail-Grant of-Prayer for-When dismissal of previous bail application came to notice of learned counsel for applicant, it was his duty to amend this bail application so that no other judge should draw an impression that certain facts was concealed from him-Similarly if there are more than one accused in a case and each accused is being represented by different advocates, then responsibility of each advocate is to keep court fully aware about orders passed in cases of those accused too who were not represented by them-Held : If it is not so mentioned in bail application, it has to be treated as intentional concealment of facts by learned advocate and bail application is to be dismissed on this ground- Held further : It is necessaiy that when Judge has expressed himself strongly against grant of bail, then other judge of same court, when moved for grant of bail, should transfer it for disposal by first Judge. [Pp. 703 & 704 ] A PLD 1963 SC 296, 1968 SCMR 924, PLD 1975 Lah. 754 and PLJ 1986 SC 369 = PLD 1986 SC 173 rel. Mr. Rana M. Shamirn, Advocate for Applicant. Ch. Muhammad Iqbal, Advocate for State, Date of hearing: 31.1.1996. order Applicant Omair Ahmed Siddiqui son of Zaheeruddin was refused bail by Special Judge (Central) II Karachi in FIR No. 9/1993 FIA, I & AS Sea-port Karachi which was registered under; (i) Section 3/4 Prohibition (Enforcement of Hadd) Order 1979. (ii) Sec. 156 (1) (8) of the Customs Act 1969 read with; (iii) Section 5(2) PCA-II 1947. As the applicant cannot be tried only by one Court in respect of the offences attracted by these sections hence the same F.I.R. was submitted in three different .courts. 2. The applicant had approached this court previously through Syed Sami Ahmed Advocate by moving Spl. Criminal Bail Application No. 29/1995 but the said application was dismissed on 1.8.1995 (now reported in 1996 P.Cr.L.J. 22). 3. It appears that after this failure, the learned counsel for the petitioner Mr. Rana M. Shamim, tried his fate to get the applicant released on the same ground from the Court of Special Judge (Central) II Karachi. It had not been disclosed therein that one bail application of the same applicant/accused was also pending before this Court on the same ground, perhaps the same may not have been in the knowledge of the learned Advocate at that time. The said application was dismissed by the learned Special Judge. However if the learned Special Judge (Central) II Karachi had allowed the said bail application, the applicant would have been released from the prison under the impression that he had been granted bail in all the cases because the F.I.R. was quoted on the face of the application with all those sections too which were not related to that Court. 4. Present bail application was also moved on the same pattern i.e., mention of FIR No. 9/1993 with all sections relating to the Customs Court, Special Court and the Court of Sessions Judge. It is also notable that bail application in hand has been kept totally silent on the point whether this application was moved to get bail in an offence attracted by section 5 (2) PCA-II 1947 or by Section 3/4 Prohibition (Enforcement of Hadd) Ordinance 1979. This application has also mention of section 156 (1) (8) of the Customs Act. It was necessary for the learned counsel, at the time of filing of this application, that another application moved on behalf of the same accused on the same ground was also pending before this Court. It was also necessary for the learned counsel to amend this bail application as soon as the other bail application of the same accused was dismissed. It may be said by the learned counsel that this Court was fully aware of the fact of dismissal order hence it was considered unnecessary to amend this bail application after the previous application was dismissed but I would like to say that if this pplication had been put before any other Hon'able Judge of this Court who had rot been aware of the factual aspect of the dismissal order then undoubtedly he could be misguided easily because a Judge is not supposed to be having any mystical or magical powers to know each and every order passed against an accused and particularly when the same has not been disclosed in the application. 5. Another important factor, which relates to the present applicant, got much more importance when I was going to dictate the present detailed order. Mr. Rana M. Shamim had moved two bail applications before this Court Le. Cr. Bail Application No. 652/95 as well as the present bail application. When both these applications were tables before this Court on 29.10.1995 I passed a detailed order in Cr. Bail No. 652/95 wherein the learned counsel were asked to satisfy the Court whether observations made in Spl. Cr. Bail No. 29/1995 can be treated hurdles or not in passing an order in the application in hand because the previous application had been moved on the same ground and the same had also been dismissed by me. It is important to point out that the said order passed in Cr. Bail Application No. 652/92 was produced in the present bail application by writing the words, for the sake of brevity, as "same order as in Cr. Bail No. 652/95". Instead of satisfying this Court on the question raised by the Court, the learned counsel got adjournments on different dates and then on 29.10.1995 the learned advocate preferred to remain absent. But I did not like to dismiss these applications on that date and adjourned the same. On 8.11.1995, the learned counsel stated that he does not press the bail applications. Hence the same were dismissed as withdrawn. 6. Surprisingly enough for me, this application was again listed before me on 23.1.1995. When the matter was called none of two advocates was present in the Court. Hence I adjourned the matter. Soon after the order for adjournment was passed both the learned advocates appeared and explained that due to their mistake withdrawal of both applications had been allowed by this Court in both the applications but they had intended to withdraw only in one case i.e. Cr. Bail Application No. 652/95 and not in the present case. I had no option except to deem it as correct. It was the back­ ground due to which the bail application was relisted for hearing. However the arguments of the learned counsel remained limited only to the ground of statutory delay which ground had already been fully discussed in Spl. Criminal Bail Application No. 29/1995 moved on behalf of the same applicant and the said application had been dismissed in August 1995. 7. Before radiating certain other glaring aspects of this bail application I regretfully put on record some of the most important and alarming realities in this order. On 13.8.1995, when this matter alongwith two other application, was listed before me I expressed this difficultly as these applications could not be heard by me as they were not related to a crime attracted by Customs Act. Hence it was directed by me that instruction be sought from the Hon'ble Acting Chief Justice whether these bail applications be fixed according to the roster or be heard by me. The matter was put before the Hon'able Acting Chief Justice and as a result of his order I was forced to decide the fate of these three applications-two moved on behalf of Omair Siddiqui. the present applicant, and the third moved on behalf of co-accused Khalid Mehmood. As stated earlier, at the time of hearing these applications the learned counsel for the applicant were asked to satisfy this court that order of dismissal passed in Spl. Cr. Bail No. 29/1995 was not a hurdle in passing any order in these applications, the back-ground of asking this question relates to my view as expressed in a case that a chain of cases arising out of the same F.I.R. or incident must not be broken at the time of deciding any bail application because facts of all the cases remain the same even if the evidence in those cases is recorded by different courts. I am also of the view that if an accused has been refused bail in a case with maximum punishment, then such an accused should not be encouraged by granting him bail in the other cases arising out of the same chain. 8. It is necessary to point out that the question arose on account of my knowledge because the dismissal order in Spl. Cr. Bail Application No. 29/95 had been passed by me. I have ho doubt in my mind that any other Judge could be easily misguided if the learned advocate had not disclosed the fact of dismissal order at the time of arguing this application because the learned advocate had not amended this bail application after the dismissal order was passed by this Court. It can be said by the learned counsel that these applications had been moved before this Court when the bail application No. 29/95 was still pending. No doubt, it had been so but it was the duty of the learned advocate to amend that application after it came to his knowledge that one application of the same applicant had been dismissed by this court so that no other Judge should draw an impression that certain facts were concealed from him. Similarly if there are more than one accused in a case and each accused in being represented by different advocates then responsibility of each advocate is to keep the court fully aware about the orders passed in the cases of those accused too who were not represented by them. For example if bail application of accused 'A' was dismissed by any bench of the High Court and another application of accused 'B' is brought before another bench by another advocate then it is necessaiy that dismissal order passed in the case of accused 'A' must be mentioned in the bail application of co-accused 'B'. If this thing is not mentioned in the bail application then it has to be treated as intentional concealment of facts by the learned advocate and the bail application be dismissed on this ground that the accused has not be represented with clean hands and therefore, such an accused is not entitled to the concession of bail because the discretion of the court cannot be exercised in favour of such an accused, may such person be a he or she. The act of concealing the facts of dismissal has always been regretted and condemned to avoid contradictory orders of different benches of the Superior Courts. It is, therefore, necessaiy that when one judge of the Superior Court has expressed himself strongly against grant of bail then another judge of the same court, in accordance with long established practice and rule of propriety, when moved for grant of bail, should transfer such application for disposal by the first judge. Reference in this regard can be made to the case reported as Province of East Pakistan vs. Dr. Aziz-ul-Islam (PLD 1963 S.C. 296), Farid vs. Ghulam Hassan and others (1968 SCMR 924), Abdul Ghafoor alias Ghaforia vs.- The State (PLD 1975 Lah 754) and The State through Advocate General N.W.F.P. us. Zubair and 4 others (PLJ 1986 S.C. 369 = PLD 1986 S.C. 173). In the last case i.e. Zubair's case (Supra) several principles enunciated by the Hon'able Bench of the Supreme Court comprising of Aslam Riaz Hussain, Muhammad Afzal Zullah and Mian Burhanuddin Khan JJ, appear as under : ..... "it is the duty of the counsel to mention in a bail application filed by him the fact of having filed an earlier bail application, also stating the result thereof. Failure on the part of the counsel to do so would, in fact, amount to professional misconduct because the concealment of the fact of the dismissal of the earlie'r bail application of the accused or the co-accused and getting a subsequent bail application decided by another Judge of the same court may result in conflicting judgments and disharmony in the Court. ...... the practice of filing successive bail applications in the same case by the same person or his co-accused and getting it fixed before a different Judge, is not only likely to result in conflicting judgments but also tends to encourage malpractice by the accused persons and to bring the judicial system into disrepute, because in the event of a conflicting order being given by another learned Judge ?? a subsequent application, an impression, though false, may be created that the second order was based on extraneous considerations. ........ the second or the subsequent bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed it cannot be considered as a fresh and made the basis of any subsequent bail application. (Underling is my own) 9. On the same propositions I consider it necessaiy to bring into light another regrettable growing tendency coupled with concealment of facts being observed now-a-days. It has been observed by me that when a bench dismisses any bail application of an accused then an application on behalf of the same accused through the same advocate or through any other advocate is moved before another bench under section 561-A Cr.P.C. for quashment of the whole proceedings without disclosing the dismissal order passed in the hail applications moved on behalf of the same accused. It is much more serious professional misconduct than that which has been discussed in the forthgoing paragraphs because it makes some sense that if an application of an accused for quashment under section 561-A Cr.P.C. has been dismissed by any judge of a High Court, then moving bail application for the same accused may not be treated unappreciable but undoubtedly it does not make any sense if an application under section 561- A Cr.P.C. of such an accused be entertained after his bail application has been dismissed by any of the Judge of the same Court. I have no hesitation to say that it shall be a matter of laughing stock and cause of bringing the judicial system in disrepute in the eyes of every sensible person who will say that proceedings of a criminal case against an accused were quashed by a Judge of the High Court whose bail application was not considered fit for grant of bail by another judge of the same High Court. 10. It is important to point out that an application under section 561-A Cr.P.C. may be entertained by a Judge of the High Court who is dealing with criminal cases in accordance to the roster even if the cases relate to the Custom Courts. Notwithstanding to this reality that such a view was expressed in one of the judgments but it does not mean that such view is applicable in each and eveiy case. I have no doubt in my mind to hold that an application U/S 561-A Cr.P.C. may be entertained by a Court, provided a bail application of such an accused has not been dismissed by the Custom Appellate Court which is also presided over by a 1 Judge of the High Court. Similarly if an application U/S 561-A Cr.P.C. has no mention of those dismissal orders which were passed against the same accused or the co-accused in the same F.I.R. or incident then it leaves no doubt for the Court that facts of dismissal orders have been concealed by the learned counsel from the Court. If trie accused has brought a new advocate for moving such an application U/S 561-A Cr.P.C. and the facts of dismissal orders passed in the previous bail applications have not been mentioned in it then it may be presumed that the accused has tried to mislead the Court by not giving full informations to his new advocate. In all such cases such an application is entitled to be dismissed on the ground that it was moved not with clean hands. However if the facts of dismissal have been mentioned in the said application moved under sectiSn 561-A Cr.P.C. for quashment, then such an application be sent to the same Judge who had dismissed the bail application of the said accused so that creation of doubts in the minds of common persons be avoided. The Superior Courts have enunciated such principles to avoid contradictory judgments not only to save the Superior Court from any disrepute but also to shatter the foundation of any possible corruption in the subordinate judiciary. These principles would be equally applicable in all those cases where an application under Section 561-A Cr.P.C. is moved after the bail had been refused. 10. As the learned advocate has not argued any new ground except the sole ground of statutory delay, hence this application merits dismissal because :-- (i) I have already dismissed the bail application of this applicant in Spl. Criminal Bail Application No. 29 of 1995 moved on the same ground. (ii) Moreover, this case is the part and parcel of the same chain of cases which arose out of one F.I.R. and I am of the view that such chain be not broken unless the bail has been granted in the case attracting maximum punishment and as discussed in the forthgoing paragraphs. This application is, accordingly dismissed. 11. Before parting with this order I consider it necessaiy to point out that the office had written the following words on one page of the judicial file before sending it to this court. "The co-accused had filed Cr. Bail No. 234/95 and Cr. B.No. 88/94. These words are not sufficient to meet the purpose of the court for which the report is sought from the office. It is necessary that the office should point out the result of all such applications i.e. dismissed, allowed or pending, alongwith the name of Hon'able Judge by writing the same on the face of case file with red ink so that the result of previous bail or quashment applications should remain before the Court no matter the same was mentioned or concealed by the learned advocate in the application moved by him. The copy of this order be also sent to the Additional Advocate General as well as to the Deputy Attorney General who are hoped to instruct their learned advocates on their panel to take pain to find out the result of all previous applications which can directly or indirectly affect any pending application because they can also be treated equally responsible for concealing the facts from the Court if they do not take interest to find out such facts. With these observations, this application stands disposed of. (ZB) Application dismissed

PLJ 1996 Cr PLJ 1996 Cr.C (Lahore) 707 [Multan Bench] Present: MUHAMMAD NASEEM, J PEOPLE OF PAKISTAN EX. REL. KHURSHEED AHMAD LANGG and 2 others-Petitioners versus STATE and 6 others-Respondents Writ Petition No, 1217/Misc. 1996 dismissed 6.3.1996 Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 369-Murder case-Investigation of-Re-open-Contention that judgment dated 26.6.1985 about acquittal of accused in murder case was procured through fraud, duress and deception because during relevant days Martial Law was imposed in countiy and some of Army Officers interfered-Section 369 Cr.P.C. may be declared to be un-constitutional and that state may be directed to re-open investigation of murder case and to further proceed in matter afresh-Proposed relief-High Court is of the opinion that assertions raised by petitioner cannot be given legal weight-Section 369 Cr.P.C. has stood test of time and any interference in provisions of same would be simply opening of Pandora's box—Section 369 Cr.P.C. is not exceptional-Petition dismissed in limine. [P. 708] A,B & C Mr. Khurshid Ahmad Lang for Petitioner. Date of hearing : 6.3.1996. order Malik Ghaus Bakhsh Lang father of Khurshid Ahmad Lang was murdered and about the said murder crime case No. 170/83 was registered at Police Station Jalalpur Pirwala District Multan. After fulfledged investigation the challan was submitted in the court of the Area Magistrate who in terms of section 190 (3) Cr.P.C. sent up the same to the court of Session. The fulfledged trial was held by Ch. Muhammad Ali, Additional Sessions Judge, Multan. The accused persons were acquitted vide judgment dated 27.6.1985 and they were released. 2. The petitioner, even thereafter, took up the matter about the murder of his father before different quarters and his efforts in the matter have remained futile as the aforesaid judgment passed by the Additional Sessions Judge, Multan is not subject to review as contemplated under section 369 Criminal Procedure Code. 3. The contention of the petitioner is that the judgment dated 26.6.1985 about the acquittal of the accused of the aforesaid murder case was procured through fraud, duress and deception because during the relevant days Martial Law was imposed in the country and some of the Army Officers interfered. 4. The proposed relief of the petitioner is that Section 369 Criminal Procedure Code may be declared to be un-constitutional and that the State may be directed to re-open the investigation of the murder case and to further proceed in the matter afresh. 5. I have heard the preliminary arguments addressed by the learned counsel for the petitioner who canvassed before me that the administration of justice is the job of the courts and that this constitutional court should see the quantum of injustice which has been faced by the petitioner due to the incorporation of Section 369 Criminal Procedure Code, according to which the matter cannot be reviewed. He ornamented his arguments by ci ing Criminal Law of America in the matter, according to which even after some years the judgment(s) was challenged and altered. I am afraid, the assertions raised by the learned counsel for the petitioner cannot be given the legal weight. Section 369 Criminal Procedure Code has stood the test of the time and any interference in the provisions of the same would be simply opening of pandora's box. Keeping in view the texture of the society and social set-up there must be an end to the civil and criminal litigation. In the civil field the law of limitation was introduced so that the law favours vigilant and not the indolent and that after the lapse of a certain period the right even though in existence cannot be agitated. Likewise no exception can be taken to the incorporation and the existence of the mandatoiy provisions of section 369 Cr.P.C. The interpretation which is for the betterment of the society and the public at large has to be expressed and followed. My view is that Section 369 Criminal Procedure Code is not exceptional. The trial was conducted in accordance with the substantive and procedural law of the country and the 1 accused persons were acquitted on 27.6.1985. Thereafter there is no occasion ! to re-open the matter on the aforesaid grounds and the assertions. Another 1 aspect of the matter which has stolen the eminence is that if the petitioner ' was not satisfied with the working of the Police he could file a private complaint and the trial of the complaint case would have been given the ( preference as against the challan case in the light of the dictum enunciated in the ruling published as Noor Elahi versus The State and others (PLD 1966 Supreme Court 708). On the basis of this reasoning as well this writ

petition cannot be further processed with. 6. For what has been said above, I see no merit in this writ petition and dismiss the same in limine. s (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 709 (DB) [Multan Bench] Present: falak sher and karamat nazir bhandari, JJ. SHAFA ULLAH-Appellant versus STATE etc.--Respondents 1C A No. 147/94 WP 5224/94 decided on 17.5.95. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 561-A read with Ss. 409, 420, 468, 471 £ 5(2) PCA-Quashment of FIR by High Court—Challenge to—Allegation of misappropriation of Wheat stock—Prosecution has been stiffled and checked in its very inception denying right and opportunity to investigate and gather, evidence- Contention of—Held: Ground urged by appellants on merits is. unexceptionable on the circumstances of the case-Appeal accepted. [Pp. 710&711JA&B PLD 1994 SC 281, 1994 SCMR 2142 ref. Mr. Hassan Mehmood Sial, Advocate, for Appellant. Date of hearing : 17-5-1995. judgment Falak Sher, J.-This order will dispose of Intra Court Appeals No. 147 and 151 of 1994 preferred by Shafaullah complainant and the State respectively assailing legality of order dated 8.11.1994 of a learned Single Judge granting writ petition No. 5224 of 1994 of Kaswar Ali Abbas District Food Controller respondent No. 2, partially quashing FIR No. 129 of 15.9.1994 registered under sections 409/420/468/471 PPC read with section 5(2) of the Prevention of Corruption Act 1947 with the Anti Corruption Establishment Multan Region qua the latter, sharing commonality of facts and law set out herein below. 2. Respondent No. 2 having secured registration of Criminal Case vide FIR No. 159 of 31.3.1994 under sections 409/420/468/471 PPC read with section 5(2) of the Prevention of Corruption Act 1947 at police station City Vehari on written application routed through A.C. Burewala, alleging embezzlement/misappropriation of wheat stock weighing 1309,600 metric tons conjunctively with 13095 pieces of bags etc., worth Rs. 59,25,940/- and Rs. 1,97,475/- respectively cumulatively amounting to Rs. 61,23,415/- from procurement centre Burewala pertaining to the year 1993-94 by Imtiaz Ali Food Grain Inspector, Navid Ali (Naib Tehsildar Revenue) with the connivance of Ghulmar Sarwar, Zafar Iqbal and Bashir Ahmad Watchmen which eventually culminated into (upon cancellation thereon due to jurisdictional competence) FIR No. 129 of 15.9.1994 with the Anti Corruption Establishment Multan Region under identical provisions and consolidated/merged with the enquiiy proceedings stemming out of written complaint dated 6.4.1994 of Shafa Ullah appellant in the former ICA implication respondent No. 2, Sikandar Hayat Dogar Assistant Food Controller, Abdul Qayyum Lashari Deputy Director Food as accomplices, consequent upon his arrest on 30.10.1994 during physical remand on 3.11.1994 recoursed to the captioned writ petition tending to seek quashment of the FIR referred to supra which though initially was ordered to be heard on 6.11.1994, but was taken up the same day and eventually met with success couple of days after the intervening week end vide the impugned order dated 8.11.1994 on the ground that no incriminating evidence was available against the respondent on the date of his arrest nor any material has been collected during the interregnum and Imtiaz Ali coaccused on 6.6.1994 while in police custody recording his statement before Magistrate's Court within the contemplation of section 164 Cr. P. C. has accepted the responsibility to which presumption of truth/correctness is attached in terms of Article 126 of the Qanun-e-Shahadat Order 1984. 3. Legality whereof has been questioned by the complainant as well as the state by virtue of the present I.C.As. contending that the prosecution has been stiffled and choked in its very inception denying the right and opportunity to investigate and gather evidence. 4. Which has been contested by the learned counsel for the respondent urging quadruplicate pleas vis., the appeals have been preferred beyond the prescribed statutory period wibhout seeking condonation of delay; Shafa Ullah appellant of ICA No. 147/94 has no locus standi being not complainant of the case; the State appeal instituted by the Assistant Advocate General hasn't been preferred by the competent functionaiy and, lastly, on merits reiterating the reasons recorded in the impugned order submitted it to be well founded. 5. With which we are not persuaded because the plea of limitation has been advanced in oblivion of the fact that the appellant in the former appeal applied to the Registry for certified copy of the impugned order on 27.11.1994 which matured into reality on 6.12.1994 and was delivered to him on 7th and on 8th the appeal was filed; while the State appeal was instituted on 28.11.1994 wherein the Registry required furnishing of better copy of the impugned order as well as that of the writ petition alongwith all the appendices for the D.B. which happens to be within the prescribed statutory period of 20 days; 6. Likewise the second submission too is contrary to the record because Shafa Ullah's complaint dated 6.4.1994 after enquiry proceedings was also ordered to be consolidated/merged with the FIR by the Additional Director Anti Corruption Establishment Multan Region. 7. Similarly the third contention seems to have been canvassed loosing sight of the fact that the State Appeal has been preferred by the Assistant Advocate General as Public Prosecutor Punjab at Multan which by irtue of his office he happens to be. 8. Whereas the ground urged by the learned counsel for the appellants on merits is unexceptionable on the circumstances of the case in view of the reiteration of the law by the Supreme Court in the cases at Malik Shaukat All Dogar vs. Ghulam Qasim Khan Khakwani (PLD 1994 SC 281) and Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior Division Islambad (1994 SCMR 2142) which has patently resulted into miscarriage of justice. 9. Consequently granting the appeals the impugned order is hereby set aside being a nullity in the eye of law, leaving the parties to bear their respective costs. (S.R.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 711 Present: ch. khurshid ahmad, J. NAZIR AHMAD-Petitioner versus STATE-Respohdent Criminal Revision No. 217/95 dismissed on 3.10.1995 (D Criminal Procedure Code, 1898 (Act V of 1898)-- -—S. 439-Criminal Trial-Production of additional evidence-Prayer for- Dismissal of-Challenge to--During trial of a criminal case prosecution had no right to produce additional evidence-Held: No material can be allowed to be placed on record against accused subsequent to framing of charge. [P. 712] A (ii) Maintainability-- —S. 439 Criminal Procedure Code, 1898 read with Article 203 (DD) of Constitution of Pakistan-Revision-Maintainability of-Contention that Offence U/Ss. 10/11 Offence of Zina (Enforcement of Hudood) Ordinance 1979 was only within jurisdiction of Federal Shariat Court to entertain revision petition against an order passed by trial Court even same may be an interim order-Held: High Court had no jurisdiction and revision petition is not maintainable. [P. 712] B Mr. Nazir Ahmad S/za/m, Advocate for the Petitioner. Mian Ahmed Sher Lali, Advocate for the Respondents. Mian Muhammad Bashir, A.A.G. assisted by Mr. M. Iqoal Malik, Advocate, for State. Date of hearing : 3-10-1995. order The petitioners have questioned the legality ^and propriety-of the orders passed by Additional Sessions Judge Jhang on 23.5.95 in case FIR No. 82/92 registered at Police Station Shahkot u/s 10/11 Offence of Zina (Enforcement of Hadood) Ordinance, 1979. It has been contended that the petitioner who was complainant in the case FIR No. 82/92 had moved the application before the trial court on 27.4.95 seeking permission to produce copies of report roznamcha, plaint and the order with a view to prove his case which was dismissed by the trial court on 23.5.1995 and that the impugned order was perverse, improper and liable to be aside. It was further prayed that the application for production of documents be accepted. The learned counsel for the complainant and also for the State opposed the same. 2. I am of the view that during the trial of a criminal case prosecution had no right to produce additional evidence as the court considers the report u/s 173 Cr. P. C., statements of the witnesses available and other material placed before it at the time of framing of the charge. No material can be allowed to be placed on record against the accused subsequent to the framing of the charge. 3. The respondents has also challenged the maintainability of the present revision petition. Referring to the provisions of Article 203 (DD) of the Constitution of the Islamic Republic of Pakistan, 1973 it was contended that it was only within the jurisdiction of Federal Shariat Court to entertain the revision petition against an order passed by the trial court even though the same be an interim order. Reliance was placed on "Khurshid vs. State" (1990 P.Cr.L.J. 409), "Munawar Hussain alias Maluka and another vs. Muhammad Nawaz etc." (1993 P.Cr.L.J. 1955) and "Syed Maskin Shah us. The State" (MLD 1994 190 (FB). 3. In view of the citations referred to above by the learned counsel ,, for the accused and the learned A.A.G. I am of the view that this court had no jurisdiction in the matter and the revision petition was not maintainable before this court. The same is dismissed as such. (MMA) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C ( Quetta ) 713 (DB) Present: amir ul mulk mengal and javed iqbal, JJ. JALAL-UD-DIN--Applicant versus STATE-Respondent Criminal Appeal No. 88 of 1995, alongwith M.R.No. 9 of 1995 partly accepted on 31.7.1995 (i) Criminal Trial-- —-Murder-Offence of-^-Conviction for-Challenge to-After being confronted with each other accused took out his pistol aimed at legs of deceased and fired-Deceased received bullet injury on legs-Contention--That accused only intended to cause harm to body of deceased and had no intention to kill him-According to post mortem report injuries were not sufficient to cause death in ordinary course of time-Offence in no circumstances fall under section 302 PPC but may fall under section 335 to 337 PPC-- Appellant could easily aim and fire at vital organs like abdomen, chest, head etc.-It seems that he had no intention to kill deceased therefore, he only fired at legs-Held : Appellant committed an offence u/s. 315 PPC-- Death sentence converted into payment of diyat. [Pp. 726]D,E&F (ii) Dying Declaration-; —Murder-Offence of-Conviction for--Challenge to--Statement given by deceased was reduced into writing as Fard-e-Bayan and was treated as dying declaration-There was no impending apprehension of death when statement was recorded-According to doctor injury caused to deceased were not sufficient in ordinary course to cause death—Although injured expired on next day after recording of his statement as a result of injury- Whether such statement can legitimately be treated as a dying declaration-Question of-Held: In law there is nothing to indicate that maker of statement should necessarily be under immediate apprehension of death in order to treat his last statement as a dying declaration- Arguments that since there was no immediate apprehension of death, hence statement of deceased could not be treated as a dying declaration is totally devoid of any force. [P. 718] A (iii) Dying Declaration-- —Murder-Offence of-Conviction for-Challenge to-Bullet fired by accused hit the leg-Police reached immediately on spot-Injury was not sufficient to cause death-However, injured succumbed to this injury~FIR lodged on basis of injured statement recorded laterly in hospital which was considered as Dying declaration-Contention : There are two dying declaration one made on spot where injured did not name assailant and second recorded "in hospital in which he specifically named accused, cast doubt on dying declaration and one which favours accused should be taken into consideration and believed-When police reached it had no time to record statement of deceased as accused was then running and could be arrested, therefore, injured told police that accused was running on that side and police chased him--Held: It is thus concluded that there were no two dying declarations made by deceased. [P. 721]B 1976 SCMR 471 relied. PLD 1978 K 792, PLD 1977 SC 612, distinguished (iv) Dying Declaration-- —Murder-Offence of-Conviction for-Challenge to-Statement of injured recorded in hospital was considered as Fard-i-Bayan, and basis of FIR-- Injxired after making statement expired-Statement become dying declaration-Doctor was not asked by police to put his signatures on dying declaration-Held: Dying declaration may be treated as any other evidence and that opinion of doctor would become necessary only in case where it is alleged that injured was not in his senses while making statement. [P. 722] C M/s Yahya Bakhtiar, Ehsan ul Haq and Akhtar Zaman, Advocates for Appellant. Ch. Ejaz YousufAddl. AG. for State. Date of decision : 31-7-1995. judgment Amir-ul-Mulk Mengal, J.--Present appellant Jalaluddin was tried by learned Sessions Judge (Ad hoc) Quetta under section 302 Qisas and Diyat Ordinance and section 13 (e) of the Arms Ordinance. The appellant was found guilty by the trial court both under section 302 Qisas and Diyat Ordinance as well as under section 13 (e) of the Arms Ordinance. Appellant was convicted and sentenced to death under section 302 Qisas and Diyat Ordinance, and he was also awarded a sentence of 2 years R.I. under section 13 (e) of the Arms Ordinance, 1965. He was also fined Rs. 10.000/- and in default of payment of fine to suffer R.I. for six months more. 2. The appellant preferred Criminal Appeal No. 80 of 1995 against his conviction under section 302 Qisas and Diyat Ordinance. He also filed another Appeal No. 88 of 1995 against his conviction and sentence under section 13(e) of Arms Ordinance. Besides Murder Reference No. 9 of 1995 has been sent for confirmation of death sentence. We are, therefore, inclined to dispose of all these matters by this common judgment as the facts and law points involved are identical in all these cases. 3. If put sufficiently, the prosecution story is that on 9.9.1993 at about 10.00 p.m. Dost Muhammad (deceased) reached near crossing of McConghy Road and Khuda-i-Dad Road, he saw appellant Jalaluddin coming from opposite direction. As soon as appellant saw Dost Muhammad (deceased) he started laughing at him. When deceased asked the appellant why he was laughing at him, the appellant got infuriated and at once started firing at him with a T.T. Pistol. As a result of firing the deceased got injuries on both of his legs and fell down ; thereupon the accused ran away from the place of incident. Injured Dost Muhammad was removed to the hospital by some passer-by. It is further the case of prosecution that P.W. 1 Zahid Hussain, who was S.H.O. Police station Gowalmandi Quetta, was on patrol duty, being accompanied by his official driver Abdul Sattar and Abdul Rahim Constable who was his gunman. Thy heard the firing report and immediately asked the traffic police who was on duty near Safir Mosque about direction from which firing had been made. They were told that firing was made towards Khuda-i-Dad Road. They reached there and saw injured Dost Muhammad as well as 2/3 other persons present with him. P.W. 1 enquired from injured his name who disclosed that his name was Dost Muhammad. He was further asked about the firing and the injured stated that son of Moulvi Niaz Muhammad namely Jalal had made firing at him and injured him. The police was further informed that accused who had made firing had run towards eastern side of the Road. He was chased by police and at some distance the police found a person running on the road side of Khuda-i-Dad Road towards east. The police driver took the vehicle in front of him and tried to stop him but accused turned and went inside a lane on the left side of the road. The police continued chasing him but he succeeded in escaping by climbing the roofs of the houses. 4. P.W. 5 Muhammad Akram after receiving information about the incident through Police Control, rushed to the hospital alongwith Constable Shahbaz Khan. They found injured Dost Muhammad in Casualty Department of Civil Hospital. After preparing injury report (Ex. P/5-A) he recorded statement of Dost Muhammad injured. This Fard-e-Bayan is ex.p/5-B which was sent to City Police Station for registration of F.I.R. On the next morning the injured succumbed to the injuries and the F.I.R. was accordingly converted from Section 324 PPC to section 302 PPG. The Fard-e- Bayan therefore was treated as dying declaration by the prosecution. 5. The accused was arrested and investigation started. According to P.W. 5 accused Jalaluddin disclosed that the pistol with which the offence was committed had been concealed by him at a place in Sadiq Shaheed Park. He was accompanied by P.W. 5 Muhammad Akram, Investigating Officer, Arif ASI, Muhammad Saleem and others who took him to Sadiq Shaheed Park where accused recovered a pistol from north eastern side of the park under a tree which was taken into possession vide recoveiy memo Ex. P/5-C. On recovery of pistol two live cartridges were found in it. Besides, identification parade of accused Jalaluddin was conducted by Magistrate First Class Haideran Khan on 20.9.1993, where according to prosecution P.W. Abdul Sattar identified the accused amongst 10 other dummies. During investigation the police had recovered shirt, Shalwar and under-wear of the deceased through Ex.P/4-A. The pistol and other articles were sent to the expert whose reports were also brought on record. The statement of the accused was recorded under section 342 Cr.P.C. as well as under section 340 (2) Cr.P.C. The accused produced defence witnesses namely D.W.I Syed Abdul Rahim, D.W. 2 Turab Khan and D.W. 3 Abdul Malik. 6. Taking into consideration the aforementioned evidence the learned trial court found the appellant guilty and passed sentence as mentioned in para 1 of the judgment. 7. Heard Mr. Yahya Bukhtiar, Senior counsel for appellant assi ted by Mr. Ehsanul Haq and Mr. Akhtar Zaman. Learned Additional Advocate General was heard on behalf of the State assisted by Mr. W.N. Kohli, counsel for the complainant. 8. Before proceeding further it would be expedient to summarise the evidence brought on record by prosecution, as follows :- (a) Dying declaration; (b) Circumstantial evidence i.e. recoveiy of pistol, live cartridges, empties, blood stained earth. (c) Identification parade; (d) Medical evidence; (e) motive; 9. The prosecution case mainly hinges on the dying declaration. Before dilating upon the questions raised in this regard by counsel for appellant it would be pertinent to point out that according to prosecution, soonafter receiving the bullet injuries, P.W. 1 Zahid Hussain who was on patrol duty reached the spot and found Dost Muhammad lying injured on the road. Upon queiy the injured told him that he had been fired at by son of Mulla Niaz Muhammad namely Jalal who had run away toward eastern direction of the Road. Although this statement was not recorded by P.W. 1 because he proceeded of find and arrest the accused but through police control he informed about the incident. According to learned Additional A.G. his oral statement could be treated as dying declaration. Secondly that after when the injured was shifted by the passers by to hospital ASI Muhammad Akram of City Police Edition went to the hospital and found Dost Muhammad in the Casualty Ward in an injured condition. His statement was recorded and on the basis of this Fard-e-Bayan FIR was lodged. This in fact was the dying declaration, since the same had been reduced into writing and signed by Dost Muhammad deceased. 10. Mr. Yahya Bukhtiar, however, challenged that this statement in fact was not a dying declaration but at the most it can be treated as a statement recorded under section 161 Cr.P.C. by the police. Another limb of the argument was that since there was no probable chance of victims death, hence this statement could not be treated in law as a dying declaration. In order to further elucidate his view point learned counsel challenged the enuineness of the statement. In this regard it was firstly pointed out that despite presence of doctor in the casualty ward his signatures were not obtained by P.W. 5 on this statement. It was secondly contended that at the end of the statement there is a cross (x) which is indicative of the fact that the statement had been prepared by PW-5 ASI Muhammad Akram and the injured was asked to put his signatures thereon. The third contention raised was that the language as used in the statement is in a chaste Urdu and not in the language of the deceased who was a Pathan and could not speak such a good Urdu. 11. In order to supplement his above contention reliance was placed on the case of Muhammad Yasin vs. The State reported in 1978 S.C.M.R. 303. The Hon'ble Supreme Court on page 305 of the said judgment has made observations as under: "So far as the second dying declaration that is to say the statement of the deceased recorded under section 161 of the Code of Criminal Procedure is concerned its genuineness according to the learned counsel for the defence was very much doubtful. This statement was recorded in the hospital but neither the doctor nor any compounder was made a witness to it. Despite the fact that it was recorded in the hospital no certificate was obtained from the doctor to the effect that the deceased was in a fit condition to make a statement. Even in the statement of the doctor it has not been brought out from him as to whether the deceased was or could be in senses to give a coherent statement at past mid-night. Furthermore the relations of the deceased were present with the deceased all along when his statement was recorded. Relying on the authority reported in 1976 P.Cr.L.J. 545 the learned counsel contended that this dying declaration could not be relied upon. There is not doubt that there are these infirmities in this dying declaration but then it is not in any way different from the one recorded earlier and it is thus to be seen as to whether the earlier dying declaration could be made the basis of conviction or not." Similarly it was argued by the learned counsel that dying declaration is in fact a weaker type of evidence because it is not subjected to cross examination. Furthermore the statement could be treated as dying declaration if the same has been immediately made when there is a solemn and probable chance of victim's death. In the instant case since there was no chance of impending death therefore reliance can not be placed on the dying declaration. In order to fortify his aforementioned contention reliance was placed on Zarif Khan vs. The State (PLD 1977 S.C. 612). We have perused the said judgment which is very exhaustive and illuminating but simultaneously there was divergence of opinion. However, it was held that dying declaration was a question of fact and no hard and fast rules can be laid down as to its admissibility and extent to which reliance can be placed. Mr. Yahya Bukhtiar then relied on PLD 1978 Karachi 792 wherein dictim was followed that dying declaration is a weaker type of evidence than evidence subjected cross examination. 12. In view of the aforementioned arguments we embark upon to determine firstly whether statement given by the deceased which was reduced in writing as Fard-e-Bayan (Ex. P/5-B) can legitimately be treated as a dying declaration because according to doctor the injuries caused to the deceased were not sufficient in the ordinary course to cause death and voluntarily stated that it could result in the loss of left leg totally. Thus there was no impending apprehension of death when the statement was recorded but the injured actually expired as a result of injuries on the next day, after recording of his statement. In law there is nothing to indicate that the maker of the statement should necessarily be under immediate apprehension of death in order to treat his last statement as a dying declaration. In case of Wazir Gul vs. The State (1976 SCMR 471) this aspect was discussed by the Supreme Court and it was held that last incriminating statement of deceased such as in F.I.R. can be legitimately treated as dying declaration. There is no need that such a statement was made under immediate apprehension of death. The relevant portion of the said judgment is reproduced hereunder: "In the first instance, the law does not insist that for the purpose of being treated as a dying declaration, the statement should have been made under immediate apprehension of death. We cannot import into the statutory provision any such extraneous limitation. In the absence of statutory requirement in this regard, the last incriminating statement made by the deceased could be legitimately treated as dying declaration as was rightly done in the instant case." Therefore the argument that since there was no immediate apprehension of death, hence the statement of deceased could not be treated as a dying declaration is totally devoid of any force. 13. We now dilate upon to the other aspects. According to P.W. 1 Zahid Hussain the deceased told him that son of Moulvi Niaz Muhammad namely Jalal made firing on him and injured him. But P.W. 9 Abdul Sattar who was accompanying P.W. 1 Zahid Hussain deposed that injured person told them that the person who had injured him with T.T. Pistol had run away. Similarly P.W. 10 Zahoor stated as under : "The Police officials enquired from the injured person as to who had injured him. The injured replied that he could not t identify the assailant. It is pertinent to mention here that Syed Abdul Rahim who was a prosecution witness and was the Guman of SHO Zahid Hussain was dropped but the appellant produced him in defence as D.W.I. He was accompanying P.W.I. Zahid Hussain and stated as under :- "The SHO enquired about him whereupon the injured told him that the assailant was running on that side". 14. The upshot of the above discussion is that there are 4 witnesses namely P.W. 1 Zahid Hussain, P.W. 9 Abdul Sattar, P.W. 10 Zahoor and D.W. 1 Syed Abdul Rahim who were present when injured was asked about the incident. The above mentioned 4 witnesses have given three different versions about information disclosed by the injured on the spot. The first is narrated by P.W. 1 Zahid Hussain (SHO Gowalmandi) according to whom the injured told him that son of Moulvi Niaz Muhammad namely Jalal made firing at him and injured him. The second version which is in utter contravention of above statement, given by P.W. 10 Zahoor who stated that when the police officials enquired from the injured person as to who has injured him, the injured replied that he could not identify the assailant. Third version comes from the mouth of remaining two witnesses namely P.W. 9 -Abdul Sattar (driver of the SHO) and DW-1 Syed Abdul Rahim (Gunman of SHO). Both of them stated that the injured told them that the person who had injured him with T.T. Pistol had run away or was running away on that side. The crucial point for determination, therefore, would be whether the injured disclosed name of Jalal or stated that he could not identify the assailant. On this point P.W. 1 Zahid Hussain and P.W. 10 Zahoor contradict each other materially. The genuineness of testimony of both becomes very doubtful because they are obviously not telling the truth. 15. At this juncture it is pertinent to mention that Mr. Yahya Bukhtiar strenuously urged that the Court should not believe P.W. 1 because the remaining three witnesses present on the spot contradict him. e find force in this argument. However, the question remains whether we should believe P.W. 10 who, apparently, is the only witness to be called independent or impartial witness as he does not belong to police department. It is difficult to do so because there is not principle of law to necessarily believe the testimony of an independent witness even if he is not telling the truth and to disbelieve the testimony of a police witness on the sole ground that he belongs to the police department but whose statement is otherwise corroborated and confidence inspiring. Adjudging the testimony of P.W. 10 in juxta-position with the testimony of P.W. 9 and D.W. 1 (both police officials) we have to take great care and caution to find out the credibility and truthfulness of these two versions. We would have readily accepted the argument of Mr. Yahya Bukhtiar if the two police officials who corroborated each other were found interested witnesses by supporting their immediate boss SHO Gowalmandi but both of them did not support the S.H.O. when he deposed that the injured disclosed the name of the assailant on the spot. So much so that being driver of SHO and Gunman of SHO, both these police fficials clearly stated that on enquiry the injured replied that the assailant was running on that side or that direction. As far as P.W. 9 Abdul Sattar is concerned he supported the version of S.H.O., that they immediately went to eastern direction and found a person running and started chasing him. But due to darkness in the narrow streets he could not identify his face. He was also witness of the identification parade but he clearly stated that he was told about the accused person. We would reproduce his exact statement as under: "I was told that the accused is that person ". This shows that he did not support P.W. 1 in toto—-but simultaneously this is a proof indicating credibility and genuineness of his statement. Although the District Attorney requested the court to declare him hostile but the request was turned down. Thus he did not support the prosecution on two counts i.e. he did not say that the injured disclosed the name of assailant and secondly that he did not identify the accused because of darkness and therefore at the identification parade the accused was pointed out to him. Had he been an interested witness, he would have supported the prosecution on all counts. It is to be further noted that his version was corroborated by D.W. 1 Syed Abdul Rahim. 16. In such circumstances we can not conveniently ignore the testimony of P.W. 9 because of it intrinsic value and its impartiality. But he also contradicts P.W. 10. Thus the statement of P.W. 10 can not be accepted as a gospel truth on the sole ground that he was an independent witness. 17. Another important aspect of the matter is that D.W.I also contradicts P.W. 10. He was the gunman of SHO but the prosecution dropped him. However, the defence produced him as D.W. 1. He never stated that on enquiry the injured replied that he could not identify the assailant. Thus on this material point even the defence contradicts the statement of P.W. 10. This being so the question would arise whether the defence can safely avoid the consequences of this testimony of D.W. 1 who stated that on enquiry of the police officials the injured told that the assailant was running on that direction. In our considered view and for the fact that the deposition of D.W.I is supported/corroborated by the testimony f P.W. 9 the injured on the spot made no dying declaration as it is but natural in the course of events that the police was in hurry to pursue and chase the accused in order to arrest him, therefore, there was no occasion that the police should wait and record the dying declaration or the statement of injured. It has come on record through testimony of P.W. 1 Zahid Hussain, P.W. 9 Abdul Sattar, and P.W. 10 Zahoor that the police immediately went after the accused. However, the accused could not be arrested. 18. From the above discussion we have come to the conclusion that soonafter the firing the witnesses including the police reached on the spot and on queiy the injured stated that the accused had run towards eastern direction an the police started chasing him. He made no detailed statement and was soon-shifted to the hospital. In the meanwhile the police informed the concerned Thana through police wireless control about the incident and P.W. 5 Muhammad Akram and P.W. 7 Shahbaz Ali proceeded to hospital and recorded Fard-e-Bayan which in fact is the dying declaration. The only question would arise how then P.W. 1 Zahid Hussain knew about the name of present appellant ? The answer is found in the circumstances. In cross examination P.W. 1 stated that his statement was recorded at about 9.45 or 10.00 p.m. when the investigating officer had reached the spot. But the dying declaration was recorded at 8.30 p.m. according to statement of P.W. 5. It was sent to City Police Station for registration of the case and report was accordingly registered by Abdul Qadir S.I. In cross examination P.W. 1 stated that staff of police station city including DSP, SHO Ghafoor Marri S.I. Qadir alongwith 2/3 police officials reached there at a,bout 9.40 or 8.45 p.m. He remained with them till 10.00 p.m. and during this period his statement was recorded. Therefore it is obvious that Abdul Qadir knew about the name of appellant as disclosed by the injured in the Fard-e-Bayan which was treated as F.I.R. and case registered accordingly by Abdul Qadir. P.W. 1 re­mained with them and as police official he might have told that the deceased in his statement had disclosed the name of appellant Jalaluddin and the possibility cannot be ruled out that he might have included the name of Jalal in his stateent which was recorded according to him at 9.45 or 10.00 p.m. 19. Be that as it may, the injured did not make any statement on the spot except to say that the accused had run on that direction and the police rushed after the accused. Thus there was no occasion for him to give detailed statement particularly when prima facie the injuries ere not sufficient to ause death as the bullets hit him on legs and not on any vital part of his body. The argument advanced by Mr. Yahya Bukhtiar was that there are two dying declaration one made on the spot where the injured did not name the assailant and the second one recorded in the hospital in which he specifically named the appellant, cast doubt on the dying declaration and the one which favours accused should be taken into consideration and believed. We do not associate ourselves with this argument because in our view, keeping in view the surrounding circumstances when the police reached it had no time to record the statement of the deceased as the accused was then running and could be arrested, therefore, the injured told the police that accused was running on that side and the police chased him. It is thus concluded that there were no two dying declarations made by the deceased. The argument of Mr. Yahya Bukhtiar that out of two dying declarations, one which favours the accused must be believed becomes irrelevant and the authority (PLD 1962 Dacca 418) is inapt to the circumstances of the present case. 20. We now proceed to scrutinize the veracity of dying declaration Ex. P/5-B. The said dying declaration is reproduced in vernacular as under : 21. The first objection raised by Mr. Yahya Bukhtiar was that the above statement was not a dying declaration but at the most it can be treated as a statement under section 161 Cr.P.C. recorded by the police. The complete answer of this objection may be found again in the case of Wazir Gul vs. The State (1976 S.C.M.R. 471). The relevant portion of which has already been reproduced and where it was held that last incriminating statement of deceased such as in F.I.R. could be legitimately treated as a dying declaration. 22. We now deal with the second objection raised by Mr. Yahya Bukhtiar that since there was a cross (x) where the injured had to sign in the Fard-e-Bayan (dying declaration), therefore, the police had already prepared the statement and asked the injured to sign the same. This argument is equally devoid of force firstly because there is nothing on record that police already had knowledge or information about the name of assailant except to believe P.W. 1, which we have already disbelieved. Secondly because the signatures of the injured had never been challenged by the defence and the injured in the ordinary course should not sign a paper, the contents whereof ere wrong. Even otherwise it has no far reaching effect to the correctness and truthfulness of the statement. 23. Third objection raised was that the statement has not been recorded in the language of the injured. He could not speak a chaste urdu being a Pathan but the defence failed to produce any evidence that the njured could not speak a good urdu. 24.' Last but not the least objection raised was that the doctor was not asked by the police to put his signatures on the dying declaration. We have already held that dying declaration may be treated as any other evidence and that the opinion of the doctor would become necessary only in case where it is alleged that the injured was not in his senses while making the statement. Here the case of the defence is that there was no immediate apprehension of death of the injured hence in our view in the peculiar circumstances of this case the statement or signatures of the doctor was not necessary because it has never been challenged that the accused has lost his senses and could not speak. ... - 25. After saying this much about dying declaration it is to be seen whether the dying declaration finds support and is corroborated from other evidence on record or not. The prosecution produced p.W. 2 Haideran Khan, the Magistrate who supervised identification parade held in City Police Station, Quetta. According to his statement P.W. Abdul Sattar identified the accused who was standing at S. No. 6 from left to right. But P.W. 9 Abdul Sattar, as discussed already, stated that he was told about the accused, therefore, no legal weight could be attached to the statement of P.W. 2 and the identification does not provide any corroboration to the dying declaration, in the circumstances of the case. 26. Another piece of corroboration may be found in the medical evidence which full corroborates that the deceased received bullet injuries which caused compound fracture of left femur. However, the most important corroboration is the recovery of T.T. pistol and empties. It is the case of the prosecution that two empties of T.T. Pistol were recovered from the place of occurrence. According to P.W. 6 two empties were found and taken into possession. One empty was lying at the place of incident while the other was lying about 7 to 8 feet away towards eastern side of the place of incident. These were placed in a plastic bag and sealed it into a parcel. The said inventoiy is Ex.P/6-C. P.W. 11 Abdul Ghafoor Marri also supported the recoveries of empties from the place of incident. 27. Mr. Yahya Bukhtiar challenged recovery of empties mainly on the ground that despite having an opportunity to associate public witnesses no one has been so associated, therefore, the recovery of empties become doubtful. Reliance was placed on 1993 MLD 2271, 1990 P.Cr.L.J. 331 and 1987 S.C.M.R. 1177. 28. It may be pointed out at this juncture that as regards public witnesses to be associated with the recovery of empties P.W. 6 Arif Ali stated that no civilian person was available at the place of incident. Although an attempt has been made by the defence that inmates of Janan house in front of which the incident had taken place were present in the house 1 but simultaneously the fact that it was night time and—persons at the spot had gone to hospital alongwith injured, therefore, we find a ring of truth in the deposition of P.W. 6. Besides no mala fide has been alleged against the investigating officer or the police witness, therefore, in the peculiar circumstances of the present case we are of the firm opinion that the police had recovered tfoese empties from the place of incident. 29. Similarly as regards recovery of pistol at the pointation and instance of accused Jalaluddin from Sadiq Shaheed Park the authority 1987 S.C.M.R. 1177 is inapt because the recovery has not been made from the house of the appellant but from a public part at the pointation and instance of accused. In case of Aftab Ahmad vs. The State (1992 M.L.D. 1919 (Lahore) it was observed that section 103 is applicable to the recoveries only made under Chapter VII, Cr.P.C. whereas a recovery to be effected on the instance of accused which is within his exclusive knowledge stands on a different footing. Likewise in case of Muhammad Ramzan versus J'he State (1992 P.Cr.L.J. 1058) the Federal Shariat Court held that provisions of section 103 Cr.P.C. are applicable where search of a house is made but not where a recovery is effected from a cattieshed which was lying open. 30. Besides, no mala fide has been alleged against the recoveiy witnesses and in case of Kotan Khan vs. The State (1992 MLD 1944) a ivision Bench of this Court upheld the conviction and sentence when record did not indicate any dishonesty or malafide o'n the part of prosecution against the accused particularly when the defence witnesses had failed to prove that prosecution has withheld the evidence of the civilian/private witnesses who were available at (l the time of search. 31. In view of above discussion we find that the recoveries provide ample corroboration to the dying declaration. 32. The next important question would be whether dying declaration is confidence inspiring and is true or not. This brings us directly to the plea of defence. D.W. 1 Syed Abdul Rahim in fact corroborated the prosecution version to a large extent except the fact that the injured did not isclose the name of the assailant in reply to a question by P.W. 1. D.W. 2 Turab Khan and D.W. 3 Abdul Malik deposed that they have formed an Anjuman with the name and style of "Itehad-e-Nawjawanan Abdul Wali Chowk, Pashtoon Darra. D.W. 2 is its patron-in-chief. According to him Jalaluddin, the appellant is its Vice P sident. He deposed that on the night of incident, Jalaluddin remained with them in a meeting from 7.00 p.m. to 9.00 p.m. When he heard about arrest of Jalaluddin he went to inform the police that Jalaluddin was with them from 7.00 p.m. to 9.00 p.m. This statement was corroborated by the statement of D.W. 3. In crossxamination, whoever, both the witnesses failed to produce any documentary evidence as regards minutes of the meeting except the ertificate Ex. D/3-B. Both stated that they had no record to show that in fact any meeting was held on the day of incident and Jalaluddin attended the same from 7.00 p.m. to 9.00 p.m. In other words the appellant took the plea of alibi but failed to substantiate the plea of alibi through any documentary evidence. D.Ws produced in this respect showed their ignorance about the police officer whom they had informed. So much so that D.W. 3 stated that he did not remember the name of police officer with whom he had a talk. He even did not know his rank. Thus the defence failed to substantiate the plea of alibi through reliable evidence. 33. However, the accused in his statement recorded under section 340(2) Cr.P.C. candidly admitted that he had a quarrel with Dost Muhammad (deceased) a few days before the incident in front of MARS nglish Language Centre at double road, where he was studying. In this fight they had exchange of fists ; besides they had old enmity with the relatives of deceased. The main plea of the appellant thus was that he was not present on the place of incident and that he has been implicated on account of previous enmity. 34. The prosecution case on the other hand is that deceased was passing through Khuda-i-Dad Road when he saw Jaialuddin who started laughing at him. On query Jalaluddin got infuriated and started firing at im with T.T. Pistol. The dying declaration also contains the factum of previous enmity. No relatives of the deceased were present at the time of ecording of dying declaration to instigate the deceased to falsely implicate the appellant. The appellant clearly stated, that he had a quarrel ith ppellant. Thus the factum of quarrel of the deceased with appellant is corroborated and we have no reason to disbelieve it. It is most probable that after the quarrel Jalaluddin got himself armed with T.T. Pistol, and when he saw the deceased he started firing at him with the pistol. The recovery of pistol at the pointation of accused has already been believed by us. Report of Ballastic expert is that the empties had been fired with the said pistol. Thus the attending circumstances and the evidence brought on record lead us to an inescapable conclusion that it was appellant who had fired at the deceased. 35. We now proceed to determine

what offence has been committed. It has come on record through evidence of P.W. 8 Dr. Amin Mengal that the injuries caused to the deceased were not sufficient in the ordinary course to cause his death, at the most his left leg could be lost by amputation. Even otherwise P.W, 10 Zahoor has stated that there was a scuffle between two persons and then there was a firing as a result whereof one was injured and the other ran away. It becomes more probable in the circumstances of the case, that after seeing each other the deceased and the appellant who had already a fight a few days back started fighting. However, the appellant took out his pistol and aimed at the legs of the deceased and fired at him. The deceased received bullet injuries on his legs and fell down. The accused did not make any fire on vital part of his body but ran away. He only intended to cause harm to the body of the deceased but he had no intention to kill him. Even otherwise the injuries inflicted by him according to police of surgeon were not sufficient in the ordinary course of events to cause death of deceased. 36. According to Mr. Yahya Bukhtiar the offence in no circumstances falls under section 302 PPC. On the contrary the offence may fall under section 335 to 337 PPC. 37. But learned Additional A.G. submitted that in fact as a result of injuries the injured died, although it may not be intention of the accused to cause his death, therefore it will be section 315 PPC i.e. Qati Shibh-i-Amd which would be attracted in the circumstances of the case. Section 335 PPC is reproduced hereunder : "335. Itlaf-i-Salahiyyat-i-Udw. Whoever destroys or permanently impairs the functioning power or capacity of an organ of the body of another person, or causes permanent disfigurement is said to cause Itiaf-i-Salahiyyat-i-Udw." According to prosecution evidence the appellant injured the legs of the deceased and police surgeon opined that these injuries could cause loss of left leg (but not death as stated hereinabove). But the factual position being tha deceased died as a result of these injuries, and therefore, according to our calculated view section 335 PPG is not attracted. However, it would be section 315 PPG i.e. Qati Shibh-i-Amd which has been committed by the appellant. Section 315 PPC defines the same and is hereby reproduced : "315. Qqtl Shibh-i-Amd. Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death, is said to commit Qati Shibh-i-Amd." 38. From the circumstances and perusal of evidence we believe the case of the prosecution that after being confronted with each other, the appellant and deceased started fight (as they had a fight some days earlier between each other) the appellant fired at the deceased but with no intention to cause his death because he fired at his legs. The circumstances show that he appellant could easily aim and fire at his vital organs like abdomen, chest, head etc. but it seems that he had no intention to kill him, therefore, he only fired at his legs and ran away. 39. From the above discussion the only inference which could safely be drawn is that appellant committed an offence under section 315 PPC. We E are, therefore, not inclined to confirm his death sentence. Criminal Reference No. 9 of 1995 is answered accordingly. 40. As to sentence we are of the opinion that the appellant shall be liable to diyat. Thus we convert the sentence of death into a sentence of payment of diyat. The appellant shall pay diyat of Rs. 1,75,000/- (Rupees one lac seventy five thousand) to the father or wali of the deceased. Besides he shall suffer for a term of 7 years R.I. as Tazir. 41. Since we have believed that the pistol had been recovered at the instance of the appellant therefore his conviction under section 13(e) of the Arms Ordinance is also upheld. However, both the sentences shall run concurrently. 42. This disposes of Criminal Appeal No. 80 of 1995, Murder Reference No. 9 of 1995 and Criminal Appeal No. 88 of 1996. 43. Resultantly death sentence is not confirmed. However, the appellant Jalaluddin shall pay Diyat i.e. a sum of Rs. 1,75,000/- (Rupees one lac seventy five thousand) to the Wallis of the deceased. Additionally he shall suffer R.I. for 7 years for an offence under section 315 PPC and 2 years R.I. and to pay fine of Rs. 10,000/- or in default of payment to suffer R.I. for 6 months more for an offence under section 13(e) of the Arms Ordinance. However, both the sentences shall run concurrently. Furthermore, benefit of section 382-Cr.P.C. is also extended to the appellant. (S.R.) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 727 Present: ch. khurshid ahmad, J. MUHAMMAD KHAN--Appellant versus STATE-Respondent Criminal Appeal No. 66/93 accepted on 8.10.1995. (i) Burden of Proof•- —-S. 302 PPC--Burden of Proof-Facts alleged must be proved and if fact was proved otherwise then conclusion must be based on facts proved or disproved and not on gathering of assumption's. [P. 731] B (ii) Identification-- —Identification in moonlit night of 7th Rabi-al-Awal-Mid-night occurrence- Moon had set before mid-night, if there was some twinkling it could not be sufficient to afford identification in the fields reflecting darkness due to standing crops-Eye witness deposing to have seen accused coming from a distance of 220 yard-Held: Humanly impossible. [P. 732] E (iii) Evidence—Appreciation of-- —S. 302 PPC-Appreciation of evidence-Description of injuries given in medical report contradicting ocular account-According to medical report one injury was on right buttock and injury No. 2 was on front of Right thigh whereas Eye witness stating injury was on "Pedow" (Lower Part of belly)--Safely can be assumed that Eye-witnesses had not seen infliction of injuries.- [P. 732] F (iv) Pakistan Penal Code, 1860 (Act XLV of 1860)- —S. 302-Conviction-Challenge to-Appreciation of evidence-Motive not proved-Ocular evidence full of fallacies-Contradiction in medical and ocular evidence—Identification doubt ful—No recoveiy was affected- Prosecution failed to prove its case beyond reasonable doubt-Conviction set-aside- [P. 732 & 733] D, G (v) Motive- —S. 302 PPC-Motive-Investigating Officer not collecting evidence (a document) relating to motive and it was not part of judicial file-Trial Court admitting document without putting accused to notice thereof caused prejudice to accused-High Court depreciated practice of introducing evidence at trial stage which was not on record.-Prosecution has very crudely and illegally tried to prove motive-So it was excluded from consideration- [P. 731] A & C Sardar Munir Ahmad Gill, Advocate for the Appellant. Mr. Zahid Farmi Sheikh, Advocate, for the State. Date of hearing: 8.10,1995. Judgment The appellant was convicted by Sessions Judge Khushab u/s 302 PPC for committing qatl-e-amd of Atta Muhammad deceased and was sentenced u/s 302-B PPC and ordered to undergo life imprisonment to pay fine of Rs. 10,000/- and in default thereof was ordered to further undergo RI for one year. He was also ordered to pay compensation in the sum of Rs. 20.000/- as provided u/s 544-A Cr. P.C. which was to be paid to the legal heirs of the deceased Atta Muhammad. In default of payment of the amount of compensation the convict was to further undergo RI for six months. He was given benefit of Section 382-B Cr. P.C. 2. The appellant was tried by Sessions Judge Khushab alongwith Muhammad Feroze s/o Ahmad Sher and Muhammad Sher s/o Sher Muhammad. Both the co-accused of the appellant were acquitted on the ground that Muhammad Feroze was attributed lalkara and the other coaccused was also not attributed any overt act and in view of the circumstances those two co-accused, in the opinion of the trial court, could not be saddled to share the common intention of the appellant. 3. The alleged occurrence took place during the night between 5/6 September, 1992 and the matter was reported at Police Station Gunjial District Khushab by Gul Jehan s/o Atta Muhammad whose statement was recorded by Inspector SHO at No. 127/92 of register of first information reports at 6.30 A.M. The first informant had stated that he had put up his dera in his agricultural land in village Okhli Mohla. At mid-night during the preceding night he awoke up at the barking of the dogs and saw in the moon light Muhammad Khan appellant, Muhammad Sher and Muhammad Feroze armed with guns standing there. Muhammad Feroze made a lalkara that they had come to give them land; Muhammad Khan accused fired at Atta Muhammad deceased with hit him on "pedow" and as a result thereof he died at the spot. The occurrence was, according to the first informat, witnessed by him and his mother. The motive for the occurrence was given as a civil suit regarding the agricultural land which the father of the first informant had filed against the accused which was decided in favour of the first informant giving rise to the present occurrence. 4. After recording the FIR the SHO went to the spot; prepared injury statement of the deceased and inquest report and sent the dead body for post mortem examination under the escort of Muhammad Ashraf complainant. He inspected the spot, took into possession blood stained earth, prepared the same into a sealed parcel and secured vide memo Ex. PD. A Kauli was also taken into possession by him vide Memo Ex. PE. He recorded the statements of the witnesses u/s 161 Cr. P.C. After the post mortem examination Muhammad Ashraf constable PW produced blood stained chadder, the last worn clothes of the deceased and a phial containing card board before the 1.0. which were taken into possession by him vide memo Ex. P.C. He made all efforts to arrest the accused but was not traceable. He handed over the sealed parcel to the Moharrar of the Police Station for safe custody and on his transfer he handed over the investigation to Ghulam Ali Inspector. Ghulam Ali Inspector took up the investigation 011 19.9.1992. Recorded the statements of Qutab Sher and Muhammad Ashraf constable u/s 161 Cr. P.O. on 21.9.1992 and on 22.9.92 arrested Muhammad Feroze, Muhammad Sher and Muhammad Khan accused. On 24.9.92 Gul Muhammad Patwari produced site plan Ex. PB and PB/1 before him which was in the scale of 1 = 10 karams. He recorded his statement u/s 161 Cr. P.C. and submitted the challan against the accused. 5. The accused were sent up to stand their trial before the court of Sessions by the Magistrate. The Sessions Judge framed charge u/s 302/34 PPC against them on 6.12.1992. The same was read over to them. They pleaded not guilty and claimed trial. 6. At trial the prosecution produced Dr. Sh. Muhammad Ashfaq Medical Officer PW. 1 who had conducted post mortem examination on the dead body of Atta Muhammad s/o Mali which was brought to him by Muhammad Ashraf constable and identified by Muhammad Afzal and Ibrahim PWs. He found the following injuries on his person :- "1. A firearm lacerated wound of entry 2" x 2" through and through on the back and other side of the right hip, (gluteal). Region area 4" below the right hip-joint with balckening and charring of gun powder seen at and around the wound. The under-lying muscle vessels were damaged. 2. 8 fire-arm lacerated wound of exit of injury No. 1, each measuring 1/4" x 1/4" through and through in the area of 4" x 3" oh the front and inner side of right thigh, 3" below the right hip-joint." In the opinion of the Doctor the cause of death was the shock haemorrhage due to laceration of right femoral artery and right femoral vein. These injuries were dangerous and were antemortem and sufficient to cause death in the ordinary course of nature. The injuries, according to the Doctor, were caused by fire arm. The time between injury and death was 1/2 to 1 hour and between death and post mortem was 10 to 12 hours. Ex. PA was the correct carbon copy of the post mortem report and Ex. PA/1 was the pictorial diagram showing seat of injuries. 7. Gul Jehan Patwari PW. 2 had prepared site plan Ex. PB and PB/1 the direction of the police and at the pointation of the witness in the scale of 1 = 10 karams. Notes and drawings in black were in his hand. He admitted that he had not shown the distance between point No. 1 to point No. 4 and that he was not told about the number of charpaies at point No. 2 in the site plan. Muhammad Ashraf constable PW. 3 escorted the dead body to the mortuary and delivered the same in tact at the time of post mortem examination whereafter he was delivered chaddar P/l and sealed phial containing card board which he produced before the 1.0. who secured the same vide memo Ex. PC. On 16.9.92 Qutab Sher Moharrar A.S.I, handed over one sealed parcle to him for onward transmission to the office of Chemical Examiner which he delivered in tact on 19.9.1992. Qutab Sher Moharrar ASI PW. 4 stated that the SHO had delivered him one sealed parcle containing blood stained earth for safe custody which he handed over to Muhammad Ashraf PW. 3 for delivering the same at the office of the Chemical Examiner Lahore. Ibrahim PW. 5 had identified the dead body of Atta Muhammad at the mortuary at the time of post mortem examination. Abdul Rehman PW. 6 had joined the investigation and in his presence the LO. had collected blood stained earth from the spot, sealed the same and secured vide memo Ex. PD. Kauli P/3 was also secured vide memo Ex. PE which was also attested by Muhammad Ameer. Gul Jehan PW was the first informant and Mst. Manzoor Khatton PW. 8 was the other eye witness of the occurrence. Their evidence shall be discussed subsequently. Shaukat Inspector appeared as PW. 9. Had recorded the FIR Ex. PF on the basis of statement made to him by Gul Jehan PW. He went to the spot, prepared injury statement Ex. PG and inquest report Ex. PH and had sent the dead body for post mortem examination under the escort of Muhammad Ashraf constable. He had collected the blood stained earth from the spot, made into a sealed parcel and secured the same vide memo Ex. PD. Kauli E. P/3 was also secured vide memo Ex. PE by him. Blood stained chadar of the deceased PI and sealed philal P/2 were produced before him by Muhammad Ashraf PW which he secured vide memo Ex. P/C. After 19.9.1992 Ghulam Ali PW. 10 had partly investigated the case, arrested the accused and had filed the report u/s 173 Cr. P.C. 7. Muhammad Afzal and Muhammad Ameer PWs were given up as unnecessaiy and the District Attorney tendered in evidence attested copy of plaint in suit titled Atta Muhammad Vs. Sher Muhammad Ex. P. 1, report of the Chemical Examiner and closed the case for the prosecution. 8. PW. 7 had stated that Muhammad Khan and Muhammad Sher accused were real brothers whereas Muhammad Feroze was son of Ahmad Sher the real brother of Muhammad Ramzan who was the grand father of Muhammad Khan. In his statement Ex. PF the witnesses stated that the fire of Muhammad Akram hit at pedow of Atta Muhammad whereas in his tatement before the court he stated that the fire hit the back side of his thigh. In his statement Ex. PF he had stated that the civil suit filed by his father had been decided against the accused a delay before the occurrence whereas in his statement before the court he stated that the said suit was •still pending. PW. 8 was the widow of Atta Muhammad deceased. She stated hat at the barking of the dogs at mid night they all got up and saw all the three accused armed with guns. Muhammad Feroze raised lalkara and Muhammad Khan accused fired at her husband which hit him on the back of his right thigh and he fell down and expired. The accused, according to the witness, were identified in the moon light. The witness stated that she and Gul Jehan were awaken before the barking of the dogs and they had witnessed the accused coming towards them from a distance of about one furlong. 9. After the close of the prosecution case the accused were examined u/s 342 Cr. P.C. They denied before the police of the occurrence as put to them and Muhammad Khan appellant in an answer to question No. 6 stated that deceased Atta Muhammad had filed a civil suit against his father and co-accused Muhammad Feroze which was decided in his favour. The PW uspected that as the case has been decided against the accused they might have committed the murder of deceased Atta Muhammad. They had not seen the occurrence. The deceased was having enmity with so many persons. It was a blind murder and that he had been falsely implicated. Similar was the reply of other co-accused. 10. Before proceeding further 1 have to say words about document Ex. PI. This was a certified copy of a suit u/s 9 of Specific Relief Act, filed by Atta Muhammad against Sher Muhammad s/o Muhammad Ramzan and Daulat Khaton deceased through here son Feroze Khan and husband Ahmad Sher. This certified copy was prepared on 6.1.1993 and on that date the suit was still pending in the court of Rana Muhammad Khan Civil Judge Johrabad. The copy was tendered in evidence on 9.1.1993. This document was not on the file of the case before the production thereof and the same had been obtained only three days before the production. This evidence relating to motive was not collected by the investigating officer and as such a prejudice was caused to the accused by the act of the court in dmitting the ocument without putting the accused to the notice thereof. I exclude the Ex. PI from consideration and depricate the practice of introducing evidence at the trial stage without the same having been collected by the investigating officer whose primary duty was to collect the evidence and produce the same before the court for proper appreciation. The trial court admitted that the civil suit was still pending between the parties regarding possession of land and the same was not decided in favour of the deceased a day prior to the occurrence but thereafter. The trial court proceeded to assume that the parties developed strained relations due to the said litigation. I am afraid such assumptions have no bearing in the criminal cases. The facts alleged must be proved directly and if the fact was proved otherwise then the conclusion must be based on the facts proved or disproved and not on gathering of assumptions. It was clearly alleged by the first informant that the case was decided against the accused a day earlier to the fateful night and that the lalkara was that they had come to give land and the same was thus veiy important for the purpose of appreciating the existence or otherwise of the motive. -The prosecution has very crudely and illegally tried to prove the motive by placing on record the certified copy of the plaint which was obtained on 6.1.1993 and produced in court on 9.1.93 without obtaining formal permission of the court which in my view, could not have been granted by the Sessions Court and in view of the above I am of the view that the motive as alleged had not been proved by the prosecution. 11. Regarding the occular evidence, the same is full of fallacies. The witness that they had identified the accused in the inuonlit night and on verification of calendar it transpired that it was the tught of 7th Rabi-ul- Awal and the moon had set before the mid-night and even if there was some twinkling, it could not be sufficient to afford identification in the fields reflecting darkness due to standing crops. P.W. stated that she has been the accused coming towards them while they were at a distance of about one furlong i.e. 220 yards which was in any case more than 100 karams and it was humanly impossible to see and distinctly identify the person from a distance of a furlong. 12. There was contradiction in the description of injuries as given in Ex. PF and as stated by PW. 1. Ex. PA/1 in which PW. 1 had given the location of injuries clearly shows the seat of injury No. 1 at the right buttock of the deceased and injury No. 2 which was the exit wound was in front of the right thigh, almost in the middle. Pedow was a place distinct from buttock. It. is the lower part of the belly and it can be safely assumed that PW, 7 and PW. 8 had not seen infliction of injuries on the person of Atta Muhammad deceased who was present at his dera at the time of occurrence and that the names of the accused were given by PW. 7 and PW. 8 out of suspicion but none can be convicted for suspicion alone. I am also convinced that the statement of Mst. Manzoor Fatima PW. 8 was recorded after the receipt of post mortem report to bring in line the same with the post mortem report. 13. Ghulam AM SHO PW. 10 had arrested the accused and he stated that they all remained with him on physical remand for 14 days and that during all those 14 days they pleaded innocence. Noting was recovered from their possession. The 1.0. had also admitted in court that about 50 to 60 persons had appeared in defence of the accused who were prepared to take oath on Holy Quran in support of the plea of innocence taken by the accused during the investigation. PW. 10 further proceeded to state that :-- "... It is further correct that during investigation it was revealed that some unknown passenger came to the dera of deceased and asked him for water which deceased gave him in a "Kauli" and thereafter said passenger fired at deceased which resulted in his death. One Amir Bhiroka, who was cited as a prosecution witness is brother in law of deceased Atta Muhammad, appeared before me and stated that accused were innocent and in fact Ibraheem and Ahmad- Shaloli were the assailants. The complainant party, however, insisted that accused present in Court were the real culprits. It was due to said reasons that challan was submitted against the accused." 14. In view of the opinion of the investigating officer and the evidence of PW. 7 and PW. 8 being in conflict with medical evidence and the statements of PWs 7 & 8 not inspiring confidence I am to hold that the prosecution failed to prove its case against the appellant beyond all reasonable doubt. The appeal is accepted. The conviction of the appellant recorded by Sessions Judge Khushab on 30.1.1993 is set aside. He is acquitted. He shall be released forthwith if not required in any other case. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 733 Present: JALALUDDIN AKBARJI, J. TAUS KHAN-Appellant versus STATE and others-Respondents Criminal Appeal No. 46 of 1995 decided on 11-6-1995 (i) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 320, Qatle-Definition of--As used in PPC-Qatle means death of a person-Meaning of Qatle does not include words of 'intention' and 'act' for 'Qafle'-Word 'Qatle' therefore can not be translated as murder or culpable homicide-Qatle of a person is codified by 'Qatle-i-amd' in Section 300 PPG which is analogous to culpable homicide of earlier section 299 PPC. [P. 735] A (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 318, Qatle-i-Khata-Codification of~Is an offence of causing death without any intention by mistake of act or of fact-Death caused by rash or negligent driving is also 'Qati-i-Khata' under section 320 PPC. [P.735]B (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)- —-S. 279 read with 320 PPC~Rash and negligent driving-Driving-Meaning of-Driving has neither been defined nor explained in section 320 PPC- Provisions of section 279 are still intact and driving is means driving any vehicles-Ordinary dictionary meaning of 'DRIVE' is to direct and control a vehicle or locomotive but same meaning can not be imported in section 320 PPC-Held : Word 'DRIVING' in its application u/s 320 PPC is limited to person or persons on road on rule of intendment or legislature making specific provisions for facts and circumstances of case-It must also be persons or persons on road and not animals like Ox-Appeal allowed. [P. 735] C & D Mr. Mazullah Khan Baruandi, Advocate for Appellant. Mr. Amjad Zia, Advocate for State. Date of hearing: 11-6-1995. judgment Taus Khan son of Noor Rehman r/o Gohati District Swabi, appellant herein, was indicted for the offence u/s 279 PPG, Qati-i-Khata of Imtiaz Ahmad son of Shamshad Khan punishable u/s 320 PPC, causing hurt to passengers punishable u/s 337-G PPC and running down a bullock worth Rs. 5,000/- thereby committing an offence punishable u/s 429 PPC by driving rashly and negligently a flying coach bearing registration No. PRJ-- 3919 on 10,6.1992 at 1600 hours on Mardan-Swabi Road, in the Court of Additional Sessions Judge-II, Mardan in case FIR No. 259 dated 10.5.1992 Police Station Shahbaz Garhi. The learned Judge of the trial Court by judgment dated 25.1.1995 convicted the appellant u/s 320 PPC and sentenced him to undergo 3 years R.I. The appellant was burdened to pay Diyat (Rs. 2,20,000/-) to the legal heirs of the deceased within a period of three years in six equal instalments and in default of payment of Diyat to be kept in prison till the payment of Diyat or furnishing security of the equal amount. The appellant was acquitted of the charges u/ss 337-G and Section 429 PPC. The charge u/s 279 PPC was considered amalgamated in Section 320 PPC. 2. The report of the occurrence was lodged by Nasim Shah wherein it is alleged that flying coach (PR 3919) driven by the appellant rashly and negligently ran down his bullock, which he had tied on the road side alongwith other catties and the vehicle collided with the tree. One of the passengers of the vehicle died and other passengers were injured. The report (Ex. PA/1) was recorded by S. Zahid Shah, S.I. (PW7) and incorporated in the register of FIR (Ex. PA) by M. Ajmal Khan, S.I. (PW4). S. Zahid Shah, S.I. (PW7) proceeded to the spot, prepared the injury-sheet (Ex. PM/2) and nquest report (Ex. PM/3) and prepared site-plan (Ex. PB) at the pointation of the complainant. The vehicle was taken into possession vide momo. (Ex. PW1/1) and examined by Arbab Samin Jan, Motor Vehicle Examiner, Peshawar (PW 3) who did not find any fault in the vehicle and submitted his report (Ex. PW 3/1 to this effect. Nasim Shah, complainant (PW 2) has stated that he had tied his catties on the road side under the shadow of a tree. The driver was driving the flying coach rashly and negligently which went out of his control and over ran the cattle and collided with a tree resulting into death of one passenger sitting in the flying coach and the ox about 5/6 years worth Rs. 5000/- also died. This witnesses stated that he has patched up the matter with the appellant after receiving Rs. 1500/- as compensation. 3. Learned counsel for the appellant vehemently argued that rash or egligent driving of the motor vehicle (Flying Coach by the appellant has not been proved at all and, therefore, the appellant is not guilty of 'Qatl-Khata'. Reference was made to the judgments "Ghulam Muhammad vs. The Crown (PLD 1953 Lahroe 260), Muhammad Yakoob us. The State (PLD 1959 (W.P.) Karachi 30), Terence Anthony D'Casta vs. The State (1969 P.Cr.. L.J. 1228), Abdul Ghani vs. The State (1975 P.Cr.. L.J. 405), Rogers vs. The State (P.Cr. L.J. 138), Muhammad Akhtar vs. The State (P.L.J. 1980 Cr. C. (Karachi) 14, Muhammad Saddaq vs. The State (NLR 1985 Criminal 738)" Learned counsel for the State argued that rash driving of the mother vehicle by the appellant has resulted in the death of one of the passengers and, therefore, the appellant is guilty of 'Qatl-i-Khata". Reference was made to judgment "Ijaz Ahmad vs. Emperor (AIR 1936 Oudh 148). Learned counsel for the State further submitted that 'Qati' is causing death which has been explained as 'Qatl-i-Khata' in Section 318 PPG. The appellant was rash in driving the motor vehicle. Reference was made to judgment "Muhammad Bux vs. Experor (AIR 1935 Nagpur 200), Deota Misir vs. Emperor (AIR 1931 Allahabad 708), Tikka Ram Vs. Rex (AIR 1950 Allahabad 300), Emperor vs. Marshal (AIR 1937 Bombay 80) and AIR 1959 Madras 497)" 4. 'Qati' means death of a person. The meaning of 'Qati' does not include words of 'intention' and 'act' for 'Qati'. The word 'Qati' therefore, cannot be translated as murder or culpable homicide. The 'Qati' of a person is codified by 'Qatl-i-amd' in Section 300 PPC which is analogous to culpable homicide of earlier Section 299 PPC. The codification of 'Qatl-i-Khata' in Section 318 PPC is an offence of causing death without any intention by mistake of act or of fact. The death causes by rash or negligent driving is also 'Qati-i-Khata' u/s 320 PPC. The driving has neither been defined nor explained in section 320 P.P.C. The provisions of Section 279 PPC are still intact and driving is meant driving any vehicle. The ordinary dictionary meaning of 'drive' is to direct and control a vehicle or locomotive but the same meaning cannot be imported in section 320 PPC. the Criminal Law Statutes cannot be interpreted by adding words to it or making redundant words used in the Statute. The judgment in this case in respect of 'Qati-i- Khata' is to be delivered having regard to the facts and circumstances of the case. The judgments referred to by the learned counsel will not in all four apply to facts and circumstances of this case except for interpreting words 'rash or negligent'. The words "any other person" as used in section 279 PPC are missing in section 320 PPC. The injury or death of occupant and/or passengers of a driven vehicle will not be covered by mischief of section 320 PPC. The judgment in the case of Ijaz Ahmad (AIR 1936 Oudh 148) will not apply to the provisions of section 320 PPC. The words 'driving' in its application u/s 320 PPC is limited to person or persons on road on the rule of intendment of legislature making specific provisions for facts and circumstances of the case. It must also be person or persons on the road and not animals as in this case it was only an ox which was run over by the vehicle and no person on the road was injured or death of person was caused on the road. The punishment for 'Qati-i-Khata' by rash or negligent driving is dependant upon the proof of rash or negligent driving with the meaning of Section 320 PPC. 5. The site plan (Ex. PB) prepared by Investigating Officer S. Zahid Shah (PW 7) on the pointation of complainant Nasim Shah (PW2), who happens to be the only eye-witness of the occurrence, indicates point 1 on the road where the flying coach is stated to have lost control and ran over the ox at point No. 2 on the road. The distance between point 1 and 2 is one pace (3 feet). It is stated that the flying coach collided with the tree, but no tree is shown in the site plan. The vehicle is stated to be having no fault by Arbab Samin Jan, Vehicle Examiner (PW 3). There is no evidence that the vehicle was damaged by collision with the tree. No other vehicle or pedestrian is shown present in the site plan. It seems that the ox of (PW 2) was either tied on the road or was suddenly crossing the road. The statement of PW 2 that the vehicle was driven rash or negligent is his own judgment of the driving because of the death of his ox. The prosecution has failed to prove the rash or negligent driving by the appellant and has also failed to prove that 'Qatl-i-Khata' (of a person) has been caused on the road by the appellant. This appeal is accepted and the conviction and sentences passed against Taus Khan, appellant, u/s 320 read with section 279 P.P.C. including the amount of Diyat in the judgment dated 25.1.1995 of the learned Addl. Sessions Judge-II, Mardan, are set aside and acquitted of the charge. The appellant should be released from jail forthwith, if not required in any other case. (S.R.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 736 [Circuit Court Larkana] Present: ABDUL MAJID KHANZADA, J. SARDAR--Appellant versus STATE-Respondent Crl. Appeal No. 26 of 1994 accepted on 27.2.1994 Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 366-A-Procuration of minor girl-Offence of-Conviction for--Challenge to-Evidence of witnesses is full of contradictions-No independent witness has been examined-Even important witness who is son of complainant was given up-Mashir of 'vardat' has not supported mashirnama—He has further denied mashirnama of arrest and has even denied his LTI on it-He was declared hostile but prosecution has failed to examined other mashir, as such his evidence had gone unchallenged- Prosecution has also failed to refer victim to Lady Medical Officer for determination of her age or for any violance on her part-It is settled law that slightest dent if caused, benefit always goes to accused-Held : It is a fit case where benefit of doubt is given to accused/appellant-Appeal accepted. [Pp. 738 & 739] A Mr. Muhammad Nawaz Chandio, Advocate for Appellant. Mr. Isserdas, Advocate for State. Date of hearing : 27.2.1996 judgement This appeal is directed against the judgment dated 12.2.1989 passed by 1st. Additional Sessions Judge, Larkana whereby the appellant has been convicted and sentenced to suffer R.I. for five years and also to pay a fine of Rs. 1000/-. The fine so realized is to' be disbursed to the victim Mst. Khudiyat, in default of payment of fine, R.I. for two months more. Briefly stated the facts which gave rise to this appeal are that one Ali Gul lodged his FIR being crime No. 14/1985 on 27.3.1985 at Police Station, Naudero under section 366-A PPC wherein the complainant stated that at about 2 p.m. on 27.3.1985 the appellant/accused kidnapped Mst. Khudiyat d/o complainant aged about 10-11 years with intent to forcibly commit illicit inter-course against her wish in the cultivation of sugar-cane. It is further the case of the prosecution that on the cries raised by Mst. Khudiyat, complainant the father and the mother and brother rushed towards the cries, Accused on seeing them ran away from the place of occurrence. It is also the case of the complainant that he informed the incident to the nekmard namely Abdul Rahim who advised him to lodge the report. Police after registering the FIR started investigation, arrested the accused and challaned him under section 366-A P.P.C. After framing of the charge, the prosecution in support of their case examined the following P.Ws. PW-1 complainant Ali Gul as Ex. 4, PW-2 Mst. Inayat Khatoon as Ex. 6, PW-3 Mst. Khudiyat as Ex. 8, PW-4 Maharam Ali mashir of vardat as Ex. 10, PW-5 Ghulam Qadir who is also the Investigating Officer as Ex. 13. Thereafter the statement of the accused was recorded under section 342 Cr. P.C. as Ex. 14. Appellant/accused did not examine himself under section 340 Cr. P.C. though the opportunity was given to him. The learned 1st. Additional Sessions Judge determined the following points :- 1. Whether accused Saddar had forcibly dragged PW Mst. Khudiyat with intent to commit illicit intercourse against her will, near the land of Muhammad Hassan Mangnejo, situated in deh Saidudero, taluka Ratodero ? 2. • Whether the accused had committed offence, if any ? The learned trial court after hearing the advocates and after perusal of the evidence, decided point No : 1 in affirmative and in point No. 2 he convicted the appellant/accused under section 366-A PPC and sentenced him to suffer R.I. for five years and also to pay fine of Rs. 1000/- and further decided that the fine, if realized, be given to the victim PW Mst. Khudiyat and in default of payment of fine, he awarded R.I. for two months more to the appellant/accused. This case solely rests on the evidence of complainant, his wife Mst. Inayat Khatoon and the victim Mst. Khudiayat and has not been supported by the mashir of vardat and arrest of the accused nor the victim was sent for her determination of nor for medical check up whether any marks of violence were on her body. I have hard Mr. Muhammad Nawaz Chandio Advocate for the appellant and Mr. Isserdas for the State and with their assistance have gone through the entire record of the case. The learned counsel for the appellant has argued that no attempt was made to commit zina. He further argued that there are material contradictions on the fatal issue in the evidence of complainant, his wife Mst. Inyat Khatoon and the victim Mst. Khudiyat. He has further argued that though independent witnesses were available but none have been either cited or examined. He has relief on Khaista Muhammad v. The State PLD 1978 Peshawar 116 which reads as under :- "Prosecution witnesses belonging to same group, two inter­ related and third their servant. No independent witness coming to support them. Such witnesses cannot be believed as trustful witnesses cannot be believed as trustful witnesses." He has also relief on Raham All and 3 others v. The State 1976 P.C. L.J. 17 which reads as under :- "Conviction on capital charge. Ocular testimony must come from unimpeachable source." Mr. Isserdas learned State counsel has supported the conviction and judgment of the trial court. According to him, though the mashir has given complete go-bye to both the mashirnamas viz. mashirnama of vardat and mashirnama of arrest yet the same have been supported by the Investigating Officer. He has further pointed out that no enmity has been shown as to why the accused/appellant has been involved. I have given my anxious consideration to the aspect of the case and the sentence imposed upon the appellant by the trail court and have also gone through the evidence of the witnesses who are father, mother and daughter and the evidence of these three witnesses is full of contradictions. No independent witness has been examined though admittedly the scene of offence is near the village. Even the important witness Ishaque who is son of the complainant was given up. The prosecution has failed to establish and prove even the attempt as the mashir of 'vardar' namely Muharam Ali Ex. 10 has not supported the mashirnama. According to him, he was never made mashir in this case. He has further deposed that the contents of mashirnama read over to him in court, are not correct and the 'vardat' was never visited in his presence. He has further deposed that he knows the accused but he was never arrested in his presence. He has further denied the mashirnama of arrest Ex. 12 and has even denied his LTI on it and has denied the contents of the mashirnama in court. He was declared hostile but the prosecution has failed to examine the other mashir, as such his evidence has gone unchallenged, it was the duty of the prosecution to have examined the other mashir to prove its case. The other mashir Imam Bux was not examined by the prosecution for the reasons best known to them. The prosecution has also failed to refer the victim Mst. Khudiyat to the lady Medical Officer for determination of her age or for any violence on her part. it is a settled law that slightest dent if caused, the benefit always goes to the accused. I feel that it is a fit case where benefit of doubt is given to the accused/appellant. As such, I had allowed the appeal on 27.2.1996 by my short order and these are the reasons for the same. K.K.F. Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 739 [Circuit Court Larkana] Present: ABDUL MAJID KHANZADA, J. MUHAMMAD AZAM-Appellant versus STATE-Respondent Crl. Appeal No. 30 of 1994 accepted on 4.3.1996 Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302-Murder--Offence of-Conviction for-Challenge to-Prosecution case rests on testimony of interested witnesses^-There is delay in lodging F.I.R. of about 18 hours-No independent witness has been cited or examined nor there is any evidence that people of village gathered at scene of offence and were examined by Police-Mashir has been examined but he has not supported prosecution case-There is nothing on record that accused had absconded—Two DW's have supported version of accused-Medical evidence belies evidence of eye-witnesses-Second mashir has not been examined-Prosecution case is not free from reasonable doubt-Appeal accepted. [P. 743] A Mr. Ghulam Nabi Soomro, Advocate for Appellant. Mr. Issradas, Advocate for State. Date of hearing: 4.3.1996 judgment This appeal is outcome of judgment dated 23.9.1991 passed by learned Sessions Judge Dadu in Sessions Case No. 3»2 whereby the appellant has been convicted and sentences to under go imprisonment for life and to pay a fine of Rs. 50,000/- in default whereof further R.I. for five years more. If fine recovered Rs. 30,000/- be paid to legal heirs of the deceased as compensation under section 540 Cr. PC and the remaining amount of Rs. 20,000/- be deposited in the Government Treasury, and has also given benefit of section 382-B Cr. P.C. 2. On 4.3.1996 this appeal was heard and by a short order it was allowed and the appellant was acquitted for the reasons to be recorded later on, as such the following are the reasons. 3. Briefly stated the facts which given rise to this appeal are that on 19.6.1989 at about 10-30 p.m Buxial, Younas and Rajah were returning from their lands after taking their water turn and when they were passing by the house of the accused they heard commotion and went inside the house and found the accused giving fists and kicks blows to the deceased who was their sister. It is their case that accused ran away seeing them and they found deceased lying dead, it is also their case that their father Ghulam Hussain who is complainant had gone to Jamshoro as such Buxial left his brother Younas and Rajab at the deadbody and went to Jamshoro and narrated the facts. The complainant came to the scene of incident and found the deadbody of deceased lying on the cot. As such he went to Police Post Kakar at 4-50 .m and reported the matter. ASI Muhammad Bux Mashori incorporated the same in daily diary being entry No. 5 and sent the same to the main police station Khairpur Nathan Shah which was subsequently incorporate in 154 Cr. P.C. book as crime No. 90 19890 under section 302 PPC. ASI Muhammad Bux Mashori visited he place of incident in presence of mashirs Khan and Muhammad Saleh and found the deadbody of Mst. Siyani and prepared the mashirnama and inquest report and despatched the deadbody for autopsy through HC Abdul Razaque and examined the witnesses. The accused was arrested on 22.6.1989 in presence of the same mashirs. The ASI also got recorded 164 Cr. P.C. statements of the witnesses on 1.7.1989 and after completing the investigating submitted the papers to the SHO P.S. Khairpur Nathan Shah who challaned the accused. 4. The charge Ex. 4 was framed against the accused under section 302 PPC on 13.11.1991 and the plea of the accused was recorded as Ex. 5. In support of the case prosecution examined PW-1 complainant Ghulam Hussain as Ex. 6 who produced the FIR as Ex : P-l, PW-2 Muhammad Buxial'Ex. 7 who also produced the 164 Cr. P.C statement as Ex. P-2, PW-3 Dr. Mazhar Ali Ex. 8 who produced post mortem notes as Ex. P-3, PW Niaz Hussain Ex. 9 who is LNK, PW-5 Muhammad Younas Ex. 10 who produced his 164 Cr. P.C statement as Ex. P-4, PW-6 Khamiso Ex. 11 the mashirwho produced the mashirnama of the place of incident and of the deadbody of Mst. Siyani as Ex. P-5. He also produced the mashirnama of arrest of accused Ex. P-7. He also produced The mashirnama of clothes of the deceased as Ex. P-8. Prosecution give up PW Rajab Ali. PW-7 MUiiammad Bux ASI was Ex. 12 who produced entry No. 5 of daily diary as Ex. P-l and the prosecution closed its side. Statement of the accused was recorded under section 342 Cr. P.C as Ex. 15 wherein he denied the allegations. He was examined on oath as Ex. 17 as D.W-1 while DW-2 Allah Dino Ex. 19 and D- W-3 Sultan as Ex. 20. 5. I have heard Mr. Ghulam Nabi Soomro advocate for appellant and Mr. Issardas for the State and have gone through the entire record of the case and reached to the conclusion that prosecution has failed to prove its case beyond any reasonable doubt and the appellant is entitled to the benefit of doubt as such he deserves to be acquitted, from the charge of murder of Mst. Siyani for the following reasons. 6. This case rests on the ocular evidence of PW Muhammad Buxial and Younas real brothers of deceased Mst. Siyani. The FIR is delayed about 18 hours through the prosecution has tried to explain in the sense that Buxial had gone to inform his father as Jamshoro and brought him from Jamshoro. These two witnesses are the real brother of are examined by the police on 22.6.1989 though the incident took place on 19.6.1989 even their 164 Cr. P.C statements were recorded on 1.7.1989. The ocular evidence of two brothers is not supported by any independent evidence nor is corroborated. There are material contradictions between the evidence of the Medical Officer and ocular evidence when they entered the house of the accused they see him giving the fists and kicks blow but, the Medical Officer has not supported this version. According to Medical Officer Dr. Mazhar Ali Khoso who has found on external examination of the deceased the following injuries. 1. A contusion 8 cm x 2 cm on back of neck. 2. A contusion 3 cm x 1 \ cm on left lumber region. 3. A contusion 3 cm x \ cm on right lumber region. On internal examination of the deadbody he found the following damages. There were laceration of special cord and dislocation and fractures of first and second upper cervical vertebrae, corresponding to injury No. 1. All other organs were normal and healthy. Stomach of the deceased contained semi digested food. 7. According to doctor the cause of death is due to injury No. 1. According to him the injury in caused by hard and blunt substance such as Lathi. According to mashir the accused was arrested on the same day but according to mashirnama and according to evidence of the investigating officer the accused was arrested on 22.6.1989. Admittedly the house is surrounded by a big village and admittedly there are houses of Ismail Abro, Ali Sher and others but none of them have been examined. There are material contradictions on the evidence of two eye witnesses namely Buxial and Younas Learned counsel for the appellant has argued that learned Judge has erred by not specifying as to under what provision of section 302 P.P.C he has convicted the accused as according to him the accused is only liable to Diyat as he has a daughter of two years as such he has relied on a case Khalil-uz-Zaman v. The Supreme Court Appellate Court Lahore and others reported in 1994 P.S.C. (Crl) 812, in which it was held as under : "--Ss. 302-Constitution of Pakistan (1973^ Art. 184(3)--Qatli-amd-Punishment-S. 306(6) PPC clearly laying down that Qatl-i-Amd committed by the husband of his wife leaving behind child/children not liable to Qisas--Punishment therefore specifically provided u/S 308 PPC. The same not providing for death penalty—Held that : The Courts derive authority to punish the accused from the State-If the Statute did not provide death penalty for the offence then obviously the Court would have no jurisdiction to award the same and as such the conviction and sentence of the petitioner recorded u/S 302 PPC was "Corum-non-Judice- "The case remitted to the High Court for fresh decision." He has also relief on case Muhammad Yaqoob v. The State reported in 19082 P.Cr. L. J.--335 in which it was held as under. "--S. 302--Benefit of doubt-Ocular testimony not corroborated by independent evidence and incident being a midnight affair, identity of accused found doubtful-Delay in lodging F.I.R. not satisfactorily explained-Accused given benefit of doubt and acquitted in circumstances". He has also relief on a case Muhammad Afzal v. Aminual Haq and another reported in 1982 PCr. LJ-340. He has also relief on a case Ghulam Raza and two others v. The State reported in 1974 P.Cr. LJ 95 in which it was held as under ; "Ss. 366 & 452-Abduction-First Information report lodged with delay of 18 hours after deliberation-Possibility of false inculpation of accused not excluded." He has also relied on a case Muhammad Hassan and another v. The State reported in 1982 P.Cr. L.J-888 as under : "S. 302-Evidence, appreciation of-Benefit of doubt-Ocular testimony not corroborated by independent evidence and recovery of incriminating articles found doubtful- Prosecuting held, failed to establish guilt of accused beyond reasonable doubt-Accused ejven benefit of doubt and acquitted." 8. Learned State counsel has supported the conviction. According to him two eye witnesses have supported the prosecution case, delay has already been explained, no enmity has been proved to implicate the accused, and the mashir is of the same village. According to him fits and kicks blows are also hard and blunt. 9. This case rests on the testimony of the two brothers of the deceased who are admittedly interested witness. There is delay in lodging the FIR of about 18 hours though the village is admittedly thickly populated and according to mashir there are about 2 to 3 hundred houses in the village but none of the witnesses has been cited or examined nor there is any evidence that the people of the village gathered at the scene of offence and were examined by the police. The mashir has been examined but he has not supported the prosecution case. On the other hand he has stated that the accused was arrested on the same day i.e. on 19.6.1989 while the mashirnama of the arrest shows that he was arrested on 22.6.1989. I fail to understand as to why the accused was not arrested even when the F.I.R. was lodged. There is nothing on record to show that the accused had absconded. The accused has examined two D.Ws who have supported the version of the accused that at the time of incident he was watching T.V in their house and one boy had come to inform that his wife is serious. The medical evidence belies the evidence of eye witnesses as according to the medical evidence injury No. 1 on neck was sufficient to cause death and that injury in caused by the hard substance like lathi and not by the fist and kick blows. The other mashir has not been examined. The prosecution case is not free from reasonable doubt and it is well settled law that even the slightest dent caused in the prosecution theory, the benefit always goes to the accused, it will be unsafe to maintain the judgment of the learned Sessions Judge, Dadu as such I have given benefit of doubt to the appellant named above and I have no option, but to accept this appeal as prayed. K.K.F. Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 743 [Circuit Court Larkana] Present: ABDUL MAJID KHANZADA, J. PATHAN-Appellant versus STATE-Respondent Crl. Appeal No. 330 of 1994 accepted on 4.3.1996 Pakistan Penal Code, 1860 (Act XLV of I860)-- —-S. 380 read with section 14 of offences Against Property Ordinance (No. VI of 1979)~Theft--Offence of-Conviction for-Challenge to-All witnesses are inter related and are family members-Property neither shown to witnesses nor to Investigating officer at time of trial-All witnesses have sworn their affidavits which were attested hy an Advocate and Notaiy Public who was also examined as court witness, as such witnesses have changed their version twice-Held : Prosecution has failed to prove its case beyond reasonable doubt-Held i'urther : Accused has only to create doubts which he has success fully done-Appeal accepted. [P. 745] A Mr. Ghulam ShabirMemon, Advocate for Appellant Mr. Isserdas, Advocate for State. Date of hearing: 4.3.1996 judgment This is an appeal against the judgment passed by Sessions Judge, Dadu convicting the appellant in sessions case No. 123/1991 under section 380 PPC read with Section 14 of the Offence against Property Ordinance (No. VI of 1979) dated 11.5.1992 whereby he convicted the appellant/accused and sentenced him to undergo R.I. for three years and to pay a fine Rs. 1,000/- failing which to undergo R.I. for a term of six months more. The brief facts leading to this appeal are that on the night falling between 2nd and 3rd April, 1991 at about 12-30 a.m. Fazul and his brother Barkat woke up on braking of dogs and found three thieves standing on the cattle pen and that one out of them was untethering the bullock. Barkat lit the torch and in the light of it they identified the present accused and Abdul Khaliq while the third could not be identified and raised cries which attracted Karam, Nawab and other co-villegers and with their help they caught hold the present appellant accused who was taking away the bullock. It is also the case of the prosecution that during struggle Fazul received injuries, the other two accused ran away leaving the present applicant/accused. Fazul lodged his report at Police Station, Thariri Mohabat which was registered by ASI Shah Muhammad as crime No. 26/1991 under sections 547, 380 PPC read with section 9 of Hudood Ordinance. ASI noted injuries on the person of Fazul and referred him to Medical Officer, Taluka Hospital, Mehar and visited the place of incident in presence of mashirs Urs and Juman and arrested the accused and recovered one iron rod lying by his side and also secured a bullock and examined the witnesses and after completing the investigation, submitted the papers to the SHO, Police Station, Thariri Mohabat who challaned the same and the same was registered as sessions case No. 123/1991. Charge was framed as Ex. 3, plea of the accused as Ex. 4. In support of the case, the prosecution examined PW-1 Fazul Ex. 5 who produced the FIR No. 26 of 1991, PW-2 Barkat All, affidavit of Karam as D-2, PW-4 Nawab Ex. 8, affidavit of Nawab as D-3, PW-5 Shah Muhammad Ex. 9, mashirnama regarding injury of Fazul as p-2, mashirnama of scene of offence as P-3, mashirnama of arrest as P-4, mashirnama regarding recovery of bullock as P-5, agreement of Fazul P-6, PW-6 Muhammad Urs Ex. 11, statement of D.P.C. closing his side as Ex. 13, Defence plea of the accused as Ex. 14, statement of accused on oath as Ex. 15 who examined defence witness DW-2 Muhammad Ex. 17, DW^3 Muhammad Urs Ex. 18 and closed his side as Ex. 19. Application under section 540 Cr. P.C. as Ex. 20, court witness No. 1 Qazi Nazir Ahmed Ex. 21, statement of advocate for accused for giving up PW Khadim Hussain as Ex. 22. Learned counsel for the appellant has argued that the witnesses are interested and are related to each other. PW Barket is brother of complainant FaZul while PW Nawab is cousin of complainant and PW Barkat. These witnesses were examined by the police after six days and they had also sworn affidavits. As such the court has examined Qazi Nazir Ahmed "Advocate and Notary Public, Dadu who had attested the affidavits of.Barkat Ali, Karam and Nawab wherein these witnesses exonerated the appellant accused and have stated in their affidavits hat the present appellant/accused was a guest in their village and had come there on commotion while the thieves had fled away leaving behind the bullock. According to affidavits the present appellant/accused is to the offender but in the court they have supported the prosecution case and have given go-bye to their affidavits PW- 6 Muhammad Urs Ex. 11 has stated and admitted the relationship. According to him PW Karam is his cousin, PW Nawab is 'masat' while Moula Bakhsh is maternal uncle of his father. As such all the witnesses are inter-related and highly interested one. The learned advocate has further argued that the bullock which is the bone of contention is neither produced in the court nor shown to the witnesses nor to the Investigating Officer, as such he has relied on a case Liaqat Bahadur and others v. The State reported in PLD 1987 FSC 43 in which it was held as under :- "Case property was not produced in court when complainant was examined." Mr. Isserdas learned counsel for State has conceded and has argued that the bullock which is a bone of contention was neither produced in court nor shown to the witnesses or the Investigating Officer at the time of trial. All the witnesses are inter-related, as such he has not supported the prosecution case. I have heard the arguments .of both the counsel and with their assistance have perused the record. All the witnesses are inter related and are family members, the property neither shown to the witnesses nor to the Investigating Officer at the time of trial. All the witnesses have sworn their affidavits which were attested by an advocate and Notary Public who was also examined by court as court-witness, as such the witnesses have changed their version twice. The prosecution, as such, has failed to prove its case beyond reasonable doubt. The accused has only to create doubts which he has successfully done. I have accordingly acquitted the accused by my short order dated 4.3.1996 and has accepted his appeal and these are the reasons for my short order. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 746 [Circuit Court Larkana] Present: AGHA SAIFUDDIN KHAN, J. ZULFIQAR alias ZULFIQAR ALI-Appellant versus STATE-Respondent Crl. Appeal No. 02 of 1995 decided on 23.11.1995. Criminal Procedure Code, 1898 (Act V of 1898)-- —Ss. 345, 345(4)(5)(5-A) read with section 561A-Cr. P.C. --Offence U/s 302(a) PPC~Compromise-Case of--After amendment u/S. 345 Cr. P.C. an offence u/S 302 PPC has heen made compoundable at the instance of legal heirs of deceased with permission of court-Such application has been filed under required form giving all details and factum of compromise-High Court do not find any impediment in way of compromise application u/S. 345(5)--Held : Appellant is hereby acquitted by virtue of Section 345(6)-Compromise accepted. [Pp. 747 & 748 ] A & B Mr. AsifAli Abdul Razak Soomro, Advocate for Appellant. Mr. Abdul Fatah Mughal, Advocate for State. Date of hearing: 23.11.1995. judgment The appellant Zulfiqar @ Zulfiqar Ali s/o Ghous Bux Chandio was tried by learned 1st Additional Sessions Judge, Larkana who by his judgment dated 13.3.1995 convicted the appellant under section 302(a) P.P.C and sentenced him to suffer life imprisonment and to pay fine of Rs. 40,000/- in case of default of payment of fine he should suffer R.I. for two years more. The appellant has challenged his conviction and sentence under this appeal. The incident in this case took place on 27.1.1984 and report was lodged on the very same day by complainant Son at Police Post Waggan which was subsequently sent to Police Station Nasirabad, which was registered in the F.I.R. vide crime No. 10/1984. It was alleged in the F.I.R. that the complainant alongwith deceased Baharo were taking tea and P.W. Khadim Hussain and Ali Muhammad were also taking tea. That while they were taking tea at the hotel accused Zulfiqar Ali and Mukhtiar both sons of Ghous Bux by casts Chandio came there. Accused Zulfiqar was armed with country made pistol while Mukhtiar was armed with Gun. Accused Zulfiqar gave Hakkal to deceased that since he had killed his uncle Shah Nawaz as such he could not be spared to day and saying so directly fired at Baharo, who after sustaining the fire arm injuries fell down. That the complainant try to come forward, the accused Mukhtiar fired in the air and threatened him not to come near to him. Due to fear he did not went there. After the accused went away and the complainant found Baharo dead. Then complainant went to the Police Post Wagan to lodge his report where has report was lodged and on the basis of that entry FIR wus registered at Police Station Naseerabad. The incident and witnesses by complainant Sono and PWs Khadim Hussain and Ali Muhammad. At the trial prosecution has examined all the material witnesses and after the statement of appellant u/S. 342 Cr. P.C the trail Court convicted the appellant as already mentioned hereinabove. That the compromise applications u/S. 345, 345 (4) Cr. P.C. were moved in the trial Court on 24.8.1994 and same were rejected on 25.8.1994. The appellant then went in revision u/S. 435-A/ 439 Cr. P.C. r/w Section 561-A Cr. P.C. before this Court which was also dismissed by my brother Mr. Abdul Rahim Kazi-J (as he then was) with the observation that "however it will be open for the applicant to move a fresh application after judgment is pronounced and if he isconvicted and such right is available to him". The appellant has been convicted by the Trial Court and his appeal was fixed for hearing today. That compromise application under section 345, 345(4)(5)(5-A)( Cr. P.C. read with section 561 Cr. P.C. for compounding the offence was moved by Mst. Ashia widow of deceased, complainant Sono cousin of deceased, P.W. Ali Muhammad uncle of deceased, so also on behalf of minor son Rajib Ali in this Court. The affidavits of all the legal heirs of deceased Baharo, including complainant Sono, Khadim Hussain and Ali Muhammad uncle of deceased were presented, with are also signed by the advocate for the appellant. After the amendment under section 345 Cr. P.C. an offence under section 302 PPG has been made compoundable at the instance of legal heirs of the deceased with the permission of the Court. Such application (Part of the paper book) has been filed under the required form giving all the details and the factum of the compromise. All the legal heirs are present today, they have admitted the contents of the compromise application and further stated that they have pardoned appellant Zulfiqar Ali in the name of Almightily Allah and have waived the right of Qzsas and Diyat. In addition to the application under section 345(5) Cr. P.C. has also been filed. In view of the fact that legal heirs of the deceased namely Mst. Ashia (widow) on her behalf and on behalf of her minor son Rajib Ali, Sono (complainant) and cousin of deceased, P.W. Khadim Hussain (nephew of deceased), PW Ali Muhammad (uncle of deceased) and all the legal heirs in their affidavits have waived their rights of Qisas and Diyat and have expressed that they have compromised the matter with present appellant. Mst. Ashia has also given "A.F.W." on her behalf and on behalf of her minor son as a gesture of good will without compensation. Mr. Abdul Fatah Mughal, learned counsel for A.A.G. states that since the parties have compromised in this matter, therefore, he has no objection for grant of application. It may be mentioned that legal heirs Mst. Ashia who is widow of deceased had only one minor son Rajib Ali, this being the position, I do not find any impediment in the way of this compromise application under section Cr.P.C. and in the result the appellant is hereby acquitted by virtue of section 345(6) Cr. P.C. This appeal stands disposed of. Appellant is in custody, he is to be released forthwith if not required in any other custody case. K.K.F. Compromise accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 748 [Circuit Court Larkana] Present -. rana baghwan das, J. QURBAN ALI-Appellant versus ABDUL HAEE and 2 others-Respondents Crl. Misc. Application No. 114 of 1995 accepted on 26-11-1995. Bail-Cancellation of-- —S. 497(5) Cr. P.C.-Bail-Cancellation of-Prayer for-In a case of broad day light incident witnessed by three persons, names of assailants being promptly mentioned in F.I.R., and corroboration by medical evidence, was not at all fit for exercise of discretion of bail in a case of capital punishment-Even no case of further enquiry was made out-Ordinarily bail should not be allowed in murder cases especially when allegations in F.I.R. if left unrebutted would render applicant to sentence of death or life imprisonment-Held : Trial Court acted illegally and in violation of settled principles for grant of bail-Bail cancelled. ' [P. 750] A Mr. Muhammad Afzal Soomro, Advocate for Applicant. Mr. Muhammad Bachal Tunio, Additional A.G. for State. Date of hearing : 26.11.1995 judgment Applicant Qurban Ali cited as an eye witness in Crime No. 33/1994 of Police Station, Drigh Sessions Case No. 484/1994 pending before the Court of Additional Sessions Judge, Kamber seeks the cancellation of bail granted to the respondents by the trial Court vide order dated 6.7.1995. 2. Precise allegation against the respondents is that on 6.8.1994 duly armed with short guns alongwith co-accused Mazna carrying a hatchet fired from their guns resulting into instantaneous death of deceased Ahmed Ali. The incident took place in the broad day light at 9.30 a.m and infront of shop of Abdul Haq at village Hamzo Chacho witnes^a by Qurban Ali and Imdad Ali apart from complainant Haji Roshan Ali. 3. In the first instance respondents approached the High Court of Sindh Sukkur Bench for grant of protective bail which was allowed upto 20.10.1994 in order to enable them to approach the court concerned. Later, they moved an application for bail before arrest before the court of Sessions Judge Larkana which was declined vide order dated 24.10.1994. It is said that during the course of investigation they arranged a certificate of their presence at P.A.F. Base, Shorekot on the fateful day since one of their relatives was employed over there. On the plea of alibi so raised, investigating agency placed their names in column No. 2 of the challan and did not prosecute them. At the instance of complainant Haji Roshan Ali, this certificate was subsequently cancelled by P.A.F. authorities with the result that the applicants were arrested and brought to trial. The case was transferred to learned Additional Sessions Judge, Kamber where they moved an application for bail which was allowed vide order dated 6.7.1995.- 4. Main consideration which weighed with the learned trial Court was the so-called inconsistency between the medical and ocular evidence in as much as at the time of autopsy Medical Officer had found two fire arm wounds on internal examination of the dead body. 5. Learned counsel for the applicant pressed cancellation of bail on the grounds firstly that the respondents malafide manipulated a certificate to prove their alleged alibi ; secondly that they had obtained bail from the trial Court by suppression of material facts and thirdly that there is no inconsistency between the ocular and the medical evidence. 6. There is a considerable force in the submission of the learned counsel when he states that prima facie there is no inconsistency between the ocular and the medical evidence in as much as in the FIR it is claimed that the respondents duly armed with guns had fired shots at the deceased. It does not say that all the shots actually hit the deceased. At any rate, presence of two fire arm wounds on the person of the deceased at the time of post mortem examination would not render the prosecution case totally false or be sufficient to exonerate the respondents of their liability under the law Suffice to say, at the stage of bail deeper appreciation of evidence can not be under-taken so as to touch the merits of the case and prejudice case of either of the parties. This was the view taken in the case of Muhammad Sarwar v. The State (1982 S.C.M.R. 257). In may view it would have been appropriate for the trial Court to deal with this aspect of the case at the trial and not discussed the merits of evidence at the stage of bail by saying that there was a general allegation of firing against the respondents. 7. It would further appear that though the respondents had earlier approached the High Court as well as the Court of Sessions for protective bail and bail before arrest but these facts were not brought to the notice of the trial Court while seeking bail after arrest. This circumstances, prima facie, would show that the respondents did not approach the Court with clean hands and attempted to suppress the material facts, thereby disentitling them to discretionary relief of bail. 8. It is settled, that normally high Court does not interfere with the exercise of discretion in the matter of bail but when interference is nevitable, it is under a duty to do so in order to secure the ends of justice and to do complete and substantial justice to the parties. In a case of board day light, incident, witnessed by three person, names of the assailants being promptly mentioned in the FIR, and corroboration by medical evidence, the case was not at-all fit for exercise of discretion of bail in a case of capital punishment. Even no case for further enquiry was made out. Ordinarily bail should not be allowed in murder cases especially when allegations in FIR if left unrebutted would render the applicant to sentence of death or life imprisonment. I am, therefore, of the view that while granting bail to the espondents, trial Court acted illegally and in violation of the settled principles for the grant of bail, it is in these circumstances that even the learned Additional Advocate General did not support the impugned order and suggested for interference by this Court. Learned counsel for the respondents after obtaining six adjournments in this matter has not cared to appear for arguments and it is reported that he has left for Karachi with private business. 9. For the aforesaid reasons bail granted to the respondents is cancelled. They shall be taken into custody and remanded to jail with directions to produce them before the Court of Additional Session Judge, Kamber K.K.F. • Bail cancelled.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 750 [Circuit Court Larkaua] Present: ABDUL MAJID KHANZADA, J. ALLAH RAKHIO-Appellant versus STATE-Respondent Crl. Appeal No. 24 of 1994 dismissed on 14.2.1996 Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-S. 426--Mischeif--Offence of-Conviction for-Challenge to-Prosecution has proved its case beyond any reasonable doubt which also gets support from report of handwriting expert that it is appellant who has prepared false Pass Book-Appellant has also admitted the handwriting and attestation of photograph on Pass Book in Statement U/S 342 Cr. P.C.-- Held : There is no justification to interfere with judgment of trial Court-­ Appeal dismissed. [P. 753] A Mr. Muhammad Nawaz Chandio, Advocate for Appellant. Mr. Issardas, A.A.G. for State. Date of hearing: 14.2.1996 judgment This appeal is directed against the judgment dated 187.12.1989 passed by the learned Special Judge, Anti-Corruption Sukur, whereby he has convicted the appellant under Section 468 P.P.C. and sentenced the appellant to suffer R.I. for one year and also to pay a fine of Rs. 1,000/- or in default of the same to suffer R.I. for one year more. Briefly stated the facts of the case are that an agricultural land bearing S. No. 6 to 10, situated in Deh Nozman, Taluka Kamber was owned by the complainant peeral to the extent of 9-29 acres. According to the allegations of the prosecution, accused Allah Rakhio Mangi who was working as Tapedar, prepared false Agriculture Pass Book No. 117593 in the name of Peeral son of Ghulam Muhammad, under this own handwriting and signature and then affixed a photograph of no person other than the said Peeral son of Ghulam Muhammad and endorsed his identification in his own handwriting and signature mentioning therein the name of Peeral and particulars of the property and thereby dishonestly facilitated a bogus person to obtain loan of Rs. 5,000/- from Agricultural Development Bank of Pakistan, Kamber Branch. The amount of loan was withdrawn from the bank on 5.8.1975, which was payable in five equal yearly installments of Rs. 731/- each with effect from 1.7.1976. The complainant Peeral was served with notice in respect of payment of loan which took him to surprise and he reported the matter to his Nekmard Abdul Rahim and then both of them went to the Bank Manger at Kamber. They saw Pass Book in this name bearing the photograph of a different person. The complainant made an application to the Circle Officer on 1.2.1981, who after taking preliminary steps and permission from S.P. registered case on 27.3.1982, and recorded the statements of the witnesses and secured the relevant documents. During the course of investigation, he obtained specimen writings and signatures of the appellant and forwarded the same alongwith Agricultural Pass Book containing disputed writings and signatures of the appellant. After completing the investigation sanction for prosecution against the appellant was obtained and challenge was submitted in Court. The charge against the appellant was framed under Section 420, 468 P.P.C. read with Section 5(2) of the Pakistan Anti-Corruption Act, 1947 to which the appellant pleaded not guilty and demanded his trial. In support of their case, the prosecution examined Abdul Rahim, who is Zamindar of the area, as P.W. 1, who has produced Agricultural Pass Book, which was prepared hy the appellant and has also produced the photograph of the accused and so also of complainant Peeral as Ex. 2/A, 2/B and 2/C, Supervising Tapedar of Ghabi Dero as PW. 2, Noor Muhammad, Filed Officer A.D.B.P. as P.W. 3 who has produced the Utilization report form of the loan as Ex. 5-A, A.I.G. Ghulam Abbas Jaffer, who had examined the disputed writings and signatures with the specimen of the appellant and has produced his report as Ex. 6/A and the enlarged photo writings and specimen signatures and photograph as Ex. 6/B & 6/C, Rafique Ahmed, Sub-Manager A.D.B.P. as P.W. 5, who has produced the application for loan with photographs as Ex. 7-A, green Agricultural Pass Book as E. 7/B and the report of the Investigator as Ex. 7/C and finally Sub-Circle Officer Jan Muhammad who has produced F.I.R. of the cases and the application of the compliant and sanction for prosecution as Ex. 8/A, 8/B & 8/D. the statement of PDSP as Ex. 9. The statement of accused wets recorded under Section 342 Cr. P.C. as Ex. 10. The accused also examined one Irshad Rehman Mangi as defence witness as Ex. 11, who produced Entry No. 67 of Dakhil—Khariji Register as Ex. 12 and closed the side. The learned trial Judge after the evidence framed the following points for determination : — "1. Whether the accused had dishonestly and fraudulently prepared Agricultural Pass Book in the name of complainant Peeral and affixed photographs of a person other than the compliant and made his endorsement of attestation thereby providing opportunity to a bogus person to withdraw amount of Rs. 5,000/- from the Bank ? 2. What should the order be ?" After hearing the arguments of the counsel for the accused as well as the A.P.P. tie learned trial Court decided the point No. 1 in affirmative and convicted and sentenced the appellant to suffered R.I. for one year and to pay a fine of Rs^. 1,000/- and in default to further undergo R.I. for one month by taking lenient view of the age and that the appellant has already retired from the service. I have beared the arguments advanced by Mr. Muhammad Nawaz Chandio, learned counsel for the appellant as well as Mr. Isserdas, penal advocate on behalf of the Additional Advocate General. Learned counsel for the appellant has argued that the loan was raised in 1974-75 while the application was moved on 1.2.1981, after lapse of 7 years and the F.I.R. was lodged on 27.3.1982. He has further argued that the Pass Book has also been signed by Mukhtiarkar and verified by the Supervisor, as such it is a case of no evidence. In support of his contentions he placed reliance on Muhammad Din vs. The State, 1969 P.Cr. L.J. 1173, Abdul Rashi vs. The State, N.L.R. 1984 Criminal 505 and Inayat Bibi vs. The State, 1981 P.Cr. L.J. 1639. Mr. Isserdas for the State has supported the case of the prosecution and has further argued that the learned trial Court has already taken very lenient view in convicting the appellant. He has pointed out that it is the appellant who has fabricated false documents and has identified the person and photograph in his own handwriting and under his own signature. He has also pointed out that the handwriting expert has fully supported the prosecution case and has deposed that the signature and handwriting on the photograph as well as on Pass Book is the same as that of the specimen taken by the Circle Officer 1 from the appellant. After hearing the arguments and perusal of the record, it is crystal clear that the prosecution has proved its case beyond any reasonable doubt which also gets support from the report of the handwriting expert that it is the appellant who has prepared the false Pass Book and also attested false photograph affixed on Pass Book. Moreover the appellant has also admitted the handwriting and attestation of photograph on Pass Book in his statement under section 342 Cr. P.C. The trial Court has already taken a lenient view looking to the advance age of the appellant and that he has already retired from the service as such I do not feel any justification to interfere with^the judgment of the trial Court. The appeal is accordingly dismissed. The appellant is on bail, as such his bail bond stands discharged and he be remanded to custody to serve but the remaining portion of this sentence. K.K.F. Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 753 [Circuit Court Larkana] Present: ABDUL MAJID KHANZADA, J. GULSHAN alias GULSHO-Appellant versus STATE-Respondent Crl. Appeal No. 27 of 1994 Larkana and Crl. Appeal No. 58 of 1989 Sukkur) decided on 29.2.1996 Criminal Procedure Code, 1898, (Act V of 1898)-- —-S. 103--Gun--Recovery of--Conviction for-Challenge to-I.O. has violated provisions of section 103 Cr.P.C.-Investigating Officer and mashir Police constable has given stereo-type evidence in both cases-Even FIR's in both cases and mashirnamas of recovery in both cases are stereo-type and identical-Accused has been acquitted in main crime and recovery of gun is an off-shoot-Prosecution has miserably failed to associate private mashir for recovery and have violated mandatory provisions of section 103--Appeal accepted. [Pp. 755 & 756] A Rel: PLD 1996 SC 67 Mr. Nisar Ahmad Bhatti, Advocate for Appellant. Mr. Isserdas, Advocate for State. Date of hearing: 29.2.1996 judgment On 29.2.1996 this appeal was heard and hy a short order is was allowed and the appellant was acquitted for the reasons to be recorded lateron, as such following are the reasons :- Present appeal is called in question the illegality and irregularity of the judgment dated 9.9.1989 passed by Sessions Judge, Larkana whereby convicted the appellant under section 13(e) Arms Ordinance and sentenced him to undergo R.I. for two years and to pay a fine of Rs. 500/-, in case of default in payment of fine to suffer R.I. for six weeks more. Briefly stated the prosecution case as stated in FIR being crime No. 135/1988 of Police Station, Shaddadkot registered by ASI Javed Shah is that during the course of investigating of crime No. 130/1988 registered on 23.10.1988 under section 17(3) Hudood Ordinance at the same Police Station. It is the case of the prosecution and that during the investigation of above cited crime, accused Gulshan alias Gulsho volunteered to produce the incriminating articles used in the above cited crime. As such the Investigating Officer alognwith his subordinate staff and accused Gulsnan alias Gulsho left the Police Station after keeping entry at serial No. 27 on 12.11.1988 at 7.30 a.m. in the Roznamcha. Accused Gulshan led the police party tot he northern 'Lorha' of accused Dildar's house situated in village Shahbazi Chandio and from the said 'Lorha' took out a gun and four live cartridges. It is the case of the prosecution that Investigating Officer demanded the licence of the gun which he could not produce, as such the same was secured under a mashirnama and the Investigating Officer brought the secured incriminating articles to the Police Station, Shahdadkot and lodged his report being crime No. 135/1988 under section 13(e) Arms Ordinance and after usual investigating, challaned the accused. In support of its case, prosecution examined two witnesses. PW-1 ASI Javed Shah Ex. 5 who produced the mashirnama of recovery as Ex. 6, and FIR being crime No. 135/1988 under section 13(e) Arms Ordinance as Ex. 7. PW-2 PC Abdul Ghafoor as Ex. 8. Prosecution closed its side vide statement Ex. 9. Statement of accused was recorded under section 342 Cr. P.C. as Ex. 10 in which he denied the allegations but he declined to examine himself under section 340(2) Cr. P.C. The learned Sessions Judge determined the following point and convicted the appellant:- "Whether the accused Gulshan was found to be having in his possession/under his control one unlicensed single barrel gun of 12 bore and four live cartridges thereof which he, while being in custody, recovered at 9.00 a.m. on 12.11.1988 from the northern 'Lorha' of Dildar's house situated in village Shahbazi Chandio and produced the same before police which secured the same under a mashirnama ?" I have heared Mr. Nisar Ahmed Bhatti Advocate for the appellant and Mr. Isserdas for the State. The main contention of Mr. Bhatti is that initially the accused was arrested in crime No. 130/1988 of Police Station, Shahdadkot under section 17(3) Hudood Ordinance in which he was acquitted. He has also argued that as alleged the gun and cartridges were produced from the 'Lorha' of house of accused Dildar and not from the house of the appellant. He has further argued that admittedly the village is thickly populated but none of the private person has been associated to act as mashir. He has argued that there was no exclusive possession of the appellant/accused. He has further argued that according to the prosecution story when the appellant/accused volunteered to lead the police to his village, it was the duty of the police to arrange for the private persons. He has argued that the accused has already been acquitted in the main case and this is an off-shot of crime No. 130/1988. Mr. Isserdas, learned State counsel has supported the prosecution case. I have heared the arguments of both the counsel and with their assistance have perused the entire record. Accused Gulshan was arrested alongwith accused Manjhi in crime No. 130/1988 of Police Station, Shahdadkot. While perusing the record, it reveals that vide entry No. 27 dated 12.11.1988, ASI Javed Shah left the Police Station. First he reached the village Shahbazi Chandio and according to the prosecution and mashirnama, the property in question was recovered at 9 a.m. from the northern 'lorha' of accused Dildar's house whereas coaccused Manjhi was also with the police. The perusal of the mashirnama dated 12.11.1988 of crime No. 134/1988 wherein the same ASI registered case against accused Manjhi under section 13(e) Arms Ordinance, reveals that co-accused Manjhi produced a gun, 3 live cartridges, seiko wrist watch and Rs. 250/- at 8.30 a.m. from the heap of fodder. In this case also witnesses are common and the mashirnama was prepared at 8.30 a.m. Admittedly it is the case of the prosecution that during the investigation in crime No. 130/1988 accused Gulshan and Manjhi who were in custody volunteered to produce the incriminating articles and led the police to village Shahbazi Chandio but in spite of that the Investigating Officer has violated the provisions of section 103 Cr. P.C. It is an established law that if the officer concerned is aware of the search before hand, he should arrange for the private persons. Here not a single word has been uttered by the Investigating Officer as to whether he tried for the private person to act as mashir. On the other hand the perusal of the record reveals that he and mashir PC Abdul Ghafoor had given stereo-type evidence in both the cases. Even the FIRs in both the cases being crime No. 134/1988 and crime No. 135/1988 and mashirnamas of recoveiy in both the cases are stereo-type and identical. Reliance can be placed in this respect to a case Muuammad Azam v. The State PLD 1996 SC 67 where it was held that section 103 Cr. P.C. applied with full force when search is to be made of a place which is in an inhabited locality. If place is known where search is to be made and that place is situated in a locality which is inhabited by the people then it is necessary to join two or more respectable persons from that locality to witness the search. In other words, if the place to be searched is already known and is situated in a locality Which is inhabited, then it becomes mandatory for the police officer to join witnesses from the locality in the investigation and make search and recovery in their presence. In this case also the appellant/accused was already in police custody in crime No. 130/1988 and according to prosecution he volunteered to produce the intriminating articles from a village, as such the police was aware of the place from where they had to make search, well in time. As such it was incumbent upon the Investigating Agency to joint two or more respectable persons to witness the recovery which they have failed and no explanation whatsoever has been given. The prosecution has failed to establish the exclusive possession of the heap of order in the case of accused Manjhi while in the present case, it is stated that the incriminating were produced from the hedge of Dilawar house as such in both the cases exclusive possession is not there. Since the accused has been acquitted in the main crime and this is an off-shoot of the above cited crime and prosecution has miserably failed to associate the private mashir for the recovery and have violated the mandatory provision of section 103 Cr. P.C. K.K.F. Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 758 [ Multan Bench] Present: muhammad naseem, J. Mst. KAUSAR BIBI-Petitioner Versus D.I.G. CRIME BRANCH, PUNJAB LAHORE and 2 others-Respondents Writ Petition No. 513/1995 accepted on 21.8.1995. Criminal Procedure Code 1898 (Act V of 1898)-- —-Ss. 173 and 190(3)-Accused-Discharge of-S.P. was nominated by D.I.G. to look into the matter who opined that accused in F.I.R. was falsely roped in who merits to be discharged being innocent-Whether case could be cancelled under section 173 Cr. P. C. after Additional Sessions Judge had taken cognizance by framing charge against accused-Question of- Additional Sessions Judge has taken cognizance of case and has charged accused under Article 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance 1979-Thereafter, subsequent investigation is simply uncalled for, unnecessary which should have been avoided-No fresh material was collected and it can safely be determined that opinion expressed by D.I.G. Police is'based on conjectural hypothesis which has no blessing from law of land-If same is given weight and such course of action is allowed to continue, same would create judicial anarchy-Held: Impugned order of D.I.R. Police is illegal and inoperative which is liable to be quashed- Petition accepted. [Pp. 762&763J A, B & C Malik Muhammad Farid, Advocate, for petitioner. Mr. Khurshid Ahmad Bhatti, Advocate for accused Muhammad Iqbal, Inspector/SHO Police Station Yazman Distt Bahawalpur along with record. Date of hearing: 21.8.1995. order The admitted facts entailing the filling of this writ petition No. 513/95 (Bwp) are as under:- Mst. Kausar Bibi Petitioner-complainant got recorded FIR No. 146 dated 20.6.1993 at Police Station Yazman under Article 10(3) of the Offence of Zina (Enforcement of Hudoud) Ordinance 1979. She alleged that Maqsood Ahmad alias Khalid accused was her close relative who visited the house of her parents wherein she lived as a virgin/unmarried daughter. About five months before 20.6.1993 at pistol point Maqsood Ahmad alias Khalid committee forcible fornication with her. Even thereafter he committed zina-bil-jabr many times with her whenever she was found alone by him. On 20.6.1993 in the absence of other family members Maqsood Ahmad alias Khalid came to her house who desired to commit zina-bil-jabr when she told her that she had become pregnant. The accused gave her some pills which she was taking when her mother Mst. Sakina Bibi and her brother Muhammad Afzal arrived. The saw them. The accused made good his escape. She intimated about the matter. The bleeding started from her womb. The police investigated the case in every respect and submitted the challan on 10.8.1993 before the Area Magistrate as contemplated under section 173 Cr. P. C. for the prosecution of Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. In terms of section 190(3) Cr. P. C. the Haqa Magistrate sent up the challan to the court of Session. The Sessions Judge entrusted the same to an Additional Sessions Judge who summoned the accused to face the trial. The Additional Sessions Judge, Bahawalpur has charged Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. After the formulation of the charge letter No. 14364/Crimes/HC, dated 9.10.1994 was sent by the Deputy Inspection General of Police, Crimes Branch, Punjab, Lahroe to the Superintendent of Police Bahawalpur which is reproduced as under:- "From The Dy. Inspector General of Police, Crimes Branch, Punjab, Lahore. To The Superintendent of Police, Bahawalpur. No. 14364/Crimes/HC, Dated 9.10.94. Subject: Case FIR No. 146/93 U/S 10 Zina Ord. P.S. Yazman District Bahawalpur. Memorandum: Mr. Ghulam Muhammad Kalyar, SP/Crimes was deputed to look into the matter and he has opined that the accused Maqsood Ahmad nominated in the FIR was falsely roped in and merits to be discharged being innocent. 2. The accused Maqsood Ahmad be got discharged from the case and compliance report be furnished to this office. Earnest efforts may also be made to trace out the real culprit. Sd/- SP/Crimes, for Dy. Inspector General of Police Crime Branch, Punjab, Lahore. 2. It happened that thereafter Mst. Kausar Bibi along with Liaqat Ali and Muhammad Yasin was removed by the police station Yazman district Bhawalpur. Her mother Mst. Sakina Bibi filed Criminal Miscellaneous No. 341-H/94 (Bwp) for the recovery of the aforesaid detenus from the illegal and improper custody of the S.H.O. Police Station Yazman District Bahawalpur. A bailiff was deputed. On 24.01.1994 the aforesaid detenus were released by this court. During the pendency of the aforesaid habeas petition the statement of Hidayat Ali SHO Police Station Yazman was recorded who referred to letter No. 14364 dated 9.10.94 reproduced supra. 3. Mst. Kausar Bibi has filed this writ petition for the proposed relief that she could not be arrested after the framing of the charge against Maqsood Ahmad alias Khalid accused in case FIR No. 146 dated 20.6.1993 registered at Police Station Yazman under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and that the order contained in letter No. 14364/Crimes/HC Dated 9.10.1994 is without jurisdiction, illegal and inoperative. She maintained that the Additional Sessions Judge took cognizance of the case and framed the charge and thereafter the Deputy Inspector General of Police Punjab, Lahore had no jurisdiction to pass the order for the discharge of Maqsood Ahmad alias Khalid accused especially when no fresh investigation was conducted by him. 4. This writ petition has been resisted by the S.H.O. Police Station Yazman as well as Maqsood Ahmad alias Khalid accused who obviously is deeply interested in the decision of this petition. I have heard the learned counsel for Mst. Kausar Bibi petitioner and Maqsood Ahmad alias Khalid accused. Learned counsel for Mst. Kausar Bibi petitioner-complainant relied upon Muhammad Alam and another versus Additional Secretary to Government of N.W.F.P., Home & Tribal Affairs Department and 4 others (PLD 1987 Supreme Court 103) decided on 3.12.1986 and argued that after issuance of process against the accused under section 204 Cr. P. C. and especially framing of the charge the court had taken the cognizance and cancellation of the case against the accused through his discharge obviously under section 173 Cr. P. C. is not permissible thereafter which could have been done before that stage. In this case law the ruling published as Wazir vs. The State (PLD 1962 (W.P.) Lah. 405) was also referred to wherein the same dictum was enunciated and was held to be the correct approach. In so far as the point of cancellation of case, fter cognizance, is concerned he also relied upon Zulfiqar Ali and others versus The State (PLD 1992 Lahore 211) wherein it has been held iwt once Magistrate has taken the cognizance of the matter and has sent up tiie case in terms of section 190(3) Cr. P. C. to the court of Session tie Uhe Magistrate) has no authority either in law or in propriety to then discharge the accused and that such an action of the Magistrate would amount to pre­ empting the exercise of jurisdiction by a superior Court i.e. the Court of Session and besides being highly improper, was even contemptuous. In this ruling after the submission of the challan under section 173 Cr. P. C. which was sent up to the Court of Session under section 190(3) Cr. P. C. on the basis of the report of the Assistant District Attorney approved and affirmed by the District Attorney as well as the Superintendent of Police (Legal), the Ilaqa Magistrate was moved seeking the cancellation of case and discharge of the accused who discharged the accused persons and in the writ petition No. 8 of the 1992 disposed of on 25.2.1992 the relevant order dated 20.11.91 passed by the Ilaqa Magistrate was set aside. Learned counsel for the petitioner also referred to Syed Waqar Hussain Shah versus The State (PLD 1988 Lahore 666) wherein it has been enunicated that when a court takes cognizance of an offence on receipt of incomplete or complete challan, prosecution is left with two courses; first to produce evidence in court and allow the trial Judge to decide the case on merits and secondly to seek withdrawal of the case under section 494 Cr. P. C. and that the executive order about the discharge of the accused cannot be passed by the Ilaqa Magistrate. It is further held therein that in such a state of affairs the court is not bound by the police opinion which has to decide each case on merits on the strength of the evidence recorded during the trial and subsequent investigation after filing of complete challan is always uncalled for, unnecessary and must be avoided which does not advanced and rather retards the course of justice. In short learned counsel for the petitioner canvassed that after the Additional Sessions Judge had taken cognizance of the matter who had charge Maqsood Ahmad alias Khalid accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 and summoned the prosecution evidence the fresh challan under section 173 Cr. P. C. proposing the discharge of the accused could not be submitted. He added that no fresh investigation was conducted by the Deputy Inspector General of Police, Crimes Branch, Punjab, Lahore who has passed the order mentioned in the aforesaid letter dated 9.10.1994 on the basis of the opinion of Ghulam Muhammad Kalyar S.P. Crimes and that such an autocratic order would not help to absolve the accused of his criminal liability and to save his skin. On the contrary learned counsel for Maqsood Ahmad alias Khalid accused relied upon the ruling published as Aftab Ahmad versus Hassan Arshad and 10 others (PLD 1987 Supreme Court 13) decided on 20.10.1986 wherein it has been held that there is nothing in the Code of Criminal Procedure to prevent Investigating Officer frem«ubmitting a subsequent report in supersession of his earlier one either on his own initiative or on the direction of some superior Police Officer. He added that according to this ruling even after a Magistrate has taken cognizance of case and framed the charge under sections 364/307/452/148/149 PPC and thereafter the statement of one of the prosecution witnesses was also recorded, the police <>u the intervention of higher authorities on re-investigation could submit tin fresh report under section 173 Cr, P. C. It shall be proper to express thai in this matter in the second report the challan of the prosecution of the accused under sections 336/342/148/149 P.P.C. was submitted and the other more serious offences were omitted. Learned counsel for the accused canvassed about the large powers of the Investigating Officer(s) in respect of the point in hand. 6. The point for determination in this writ petition is whether the case could be cancelled under section 173 Cr. P. C. after the Additional Sessions Judge had taken cognizance by framing the charge against the accused. It is proper to express that Maqsood Ahmad alias Khalid has not been discharged as yet as intimated by the S.H.O. The view expressed in PLD 1987 Supreme Court 13 is of no help to Maqsood Ahmad alias Khalid accused. In that case after the submission of first report under section 173 Cr. P. C. the accused were charged under sections 364/307/452/148/149 PPC while in the second report under section 173 Cr. P. C. the challan (second report) for their prosecution under sections 336/342/148/149 P.P.C. was submitted which means that other more serious offences were omitted. The accused persons were not got discharged. The bail matter was under discussion for disposal in this case. Two Honourable Judges of the Supreme Court of Pakistan disposed of the matter on 20.10.1986. The rulings relied upon by the learned counsel for Mst. Kausar Bibi petitioner-complainant are applicable to the instant dispute. The judgment published as PLD 1987 Supreme Court 103 was decided on 3.12.1986 Le. after 20.10.1986 by three Honourable Judges of the Supreme Court of Pakistan. According to Usman versus Sind Labour Appellate Tribunal & Karachi Port Trust (NLR 1984 Labour 175 (D.B) Karachi High Court "Normally, the rule is that where the law laid down differently in two decisions of the Supreme Court by Benches of different strength the different decision of the larger bench shall be followed as the binding decision on the subject." In this view of the matter the dictum enunciated in PLD 1987 Supreme Court 103 has to be followed by this Court, according to which the cancellation of case under section 173 Cr. P. C. is not permissible after the cognizance has been taken by the Court wherein judgment of the Full Bench of the Lahore High Court published as PLD 1962 (West Pakistan) Lahore 405 has been approved wherein the same principle has been laid down. PLD 1992 Lahore 212 and PLD 1988 Lahore 666 are also helpful to the petitioner. The challan for the prosecution of the accused under Article 10(3) of the offence of Zina (Enforcement of Hudood) Ordinance 1979 was submitted before the Haqa Magistrate under section 173 Cr. P. C. who sent up the same to the Court of Session in terms of section 190(3) Cr. P. C. The Additional Sessions Judge was taken the cognizance of the case and has charged the accused under Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. Thereafter the subsequent investigation is simply uncalld for, unnecessary which should have been avoided. This is the legal aspect of the matter. 1. The factual aspect of the matter is that the Deputy Inspector General of Police, Crimes Branch, Punjab Lahore did nut investigate the case. Ghulam Muhammad Kalyar Superintendent of Police (Crimes) was deputed to look into the matter who opined that Maqsuod Ahmad alias Khalid nominated accused in the FIR was falsely roped in who merits to be discharged being innocent. No fresh material was collected and it can safely be determined that the opinion expressed by the Deputy Inspector General of Police, Crimes Branch, Punjab, Lahore is based on conjectural, hypothesis which has no blessing form the law of the land. If the same is given the weight and such a course of action is allowed to continue, the same would create judicial anarchy consequently resulting in administrative chaos. I, therefore, hold that the impugned order of the Deputy inspector General of Police, Crimes Branch, Punjab Lahore contained in letter No. 14364/Crimes/HC, dated 9.10.1994 is illegal and inoperative which is liable to be quashed. 8. I, therefore, accept this writ petition and quash the impugned order contained in letter No. 14364/Crimes/HC, dated 9.10.1994 (Annexure D). The result is that the Additional Sessions Judge shall hold and conclude the trial against Maqsood Ahmad alias Khalid accused and the case shall be decided in accordance with law. Consequently the police of Police Station Yazman or any higher Police Officer cannot further investigate the case and such an exercise would simply remain futile. (K.K.F.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 763 [ Multan Bench] Present: muhammad naseem, J. ALI MURAD-Petitioner versus S.H.O. etc.--Respondents Crl. Misc. No. 263/H-1995 dismissed on 23.8.1995. Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 491-Habeas Corpus-Petition of-Bailiff recovered three alleged detenus but they are required by Police in a case-If their arrest was not shown in Daily Diary of Police Station that would not High Court make hold that they are detenus-Petitioner has tried to highlight demerits of .I.R.—High Court is of the opinion that, while disposing of petition under section 491 Cr. P. C. merit of F.I.R. cannot be analysed and dissected-Petition dismissed. [P. 764] A Malik M.H. Zafar, Advocate, for Petitioner. Abdul Rashid, Inspector/SHO and Jan Muhammad AST PuLce Station Ahmad Pur Lamma Distt. Rahim Yar Khan. Muhammad Jamil Bailiff in person. Date of hearing: 23.8.1995. order Ali Murad petitioner filed this Habeas Corpus Petition under section 491 Cr. P. C. for the recovery of detenus Qamar-ud-Din, Waheed, Qazi and Gul Hassan from the alleged illegal and improper custody of the S.H.O. Police Station Ahmadpur Lamma. According to the recitals of the petition in hand the aforesaid persons were being detained without any legal justification by the SHO Police Station Ahmadpur Lamma. This application was supported by an affidavit. After hearing the preliminary arguments I deputed the bailiff to proceed in accordance with law. The bailiff reached Police Station Ahmadpur Lamma On 22.8.1995 at 7.30 p.m. in the company of Ali Murad petitioner. He found Qamar-ud-Din, Waheed and Gull Hassan alleged detenus while confined therein. The S.H.O. intimated that they were required in case FIR No. 127 dated 16.8.1995 registered at Police Station Ahmadpur Lamma under section 365-A P.P.C. while about the 4th alleged detenue namely Qazi the bailiff was intimated that he had not been arrested. The bailiff made a perusal of the Daily Diary of Police Station Ahmadpur Lamma wherein the arrest of aforesaid three persons was not entered. 2. The true picture which has emerged is that the three alleged detenus are required by the police in the aforesaid case. If their arrest was not shown in the Daily Diary of Police Station Ahmadpur Lamma, that would not make me hold that they are the detenus. Even if this view is expressed that they are the detenus due to the non-incorporation of the fact of their arrest in the Daily Diary- of Police Station Ahmadpur Lamma, the police would be competent to arrest them outside the court room on the basis of the registration of the aforesaid F.I.R. Learned counsel for the petitioner has tried to highlight the demerits of the FIR. I am afraid, while disposing of this petition under section 491 Cr.P.C. the merits of the FIR cannot be analysed and dissected and for that matter the different efficacious .remedy shall have to be invoked by the petitioner or the aforesaid accused persons. 3. The aforesaid three persons are not the detenus who are required in the aforesaid FIR No. 127 dated 16.8.1995 registered at Police Station Ahmadpur Lamma under section 365-A P.P.C. They have been put under the police custody to proceed further in accordance with law. 4. At this stage I am tempted to express that the Police Officers do not show the arrest of the accused in the Daily Diary of the Police Station even after the arrest as the investigation is conducted ;md thus the period of 15 days for physical remand mentioned under section 167 Cr. P. C. stands enhanced which is source of convenience to them. Such a working has no lessing from the law of the land and the Police Officers should avoid the same. 5. All the accused (the alleged detenus) have complained that coercion has been effected upon them by the police Police Station Ahmadpur Lamma. Keeping in view this aspect as well as their future apprehension in the matter I direct Abdul Rashid Inspector/SHO Police Station to immediately take all the three accused namely Qamar-ud-Din, Waheed and Gul Hassan to the Medical Superintendent B.V. Hospital Bahawalpur so that they are examined by the Standing Board and the Medico Legal Reports are issued. In such a state of affairs when the police is involved according to the standing instructions the Standing Board has to examine the accused persons. The SHO shall hand over the Medico Legal Reports pertaining to he three accused in the office tomorrow (24.8.1995) which shall be added to this file. 6. With my aforesaid reasoning and observations this petition for Habeas Corpus fails and the same is dismissed. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 765 [Multan Bench] Present: rana muhammad arshad, J. TALIB HUSSAIN-Petitioner versus MR. MUHAMMAD ASLAM SOMRA, ADDITIONAL SESSIONS JUDGE, MULTAN and others-Responents Crl. Rev. No. 151-1995 accepted on 3.8.1995. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 435/439/193(2)/17(4)--Bail application-Withdrawn of by Additional Sessions Judge-Challenge to-Offence U/S 324/337-A (iii)/337-P (i)/34/PPC-Additional Sessions Judge was absolutely not competent to entertain an application for the withdrawal of bail petitions already pending in court of other Additional Sessions Judge and make an order for entrustment to another Additional Sessions Judge-Neither case falls within terms of urgent matters nor it falls within competency of Additional Sessions Judge-Notice was also not given to petitioner while taking decision of withdrawing bail petition and for further entrustment-Certainly it caused prejudice to petitioner-In absence of notice, to other party, order would, call for being set aside on this ground alone-Held: Addl. Sessions Judge was not competent to withdraw bail petition nor order for withdrawal and entrustment of same to another court could be made and that too without notice-Revision Petition accepted. [P. 768] A, B & C Ch. Faqir Muhammad, Advocate, for Petitioner. Khan Abdul Qadoos Khan Tareen, Advocate, for State by Malik Haider Usman, Add. A.G. Date of hearing: 3.8.1995. judgment This revision petition under section 435/439 Cr. P. C. has been directed against the order dated 25.7.1995 passed by Mr. Muhammad Aslam Somra, learned Addl. Sessions Judge/Duty sessions Judge, Multan whereby he had withdrawn the bail application of the respondents and the same was entrusted to Mr. Ahmed Raza Khan, learned Addl. Sessions Judge, Multan. 2. The facts in brief are; that an Indictment No. 121/95 dated 3.6.1995 was got registered with Police Station, Saddar Shujabad under section 324/337-A (ii)/337-F(i)/34 PPC on the statement of one Talib Hussain against the accused/respondents No. 2 to 4 alleging therein that the injuries were caused by respondents No. 2 to 4 to Fazal Hussain, father of the complainant/petitioner. The investigation was conducted and thereafter respondents No. 2 to 4 were arrested. The bail petition of the respondents was submitted in the Court of Magistrate Section 30 (Judicial) which was declined on 13.7.1995 by him. 3. The post arrest bail petition, thereafter, was submitted in the court of learned Sessions Judge, Multan and the same was entrusted to Mr. A. D. Khalid, Addl. Sessions Judge for disposal. The learned Addl. Sessions Judge on 19.7.1995 adjourned the proceedings for 23.7.1995. On 23.7.1995, the requisitioned record was not present and the same was adjourned for 20.8.1995. 4. Meanwhile, the accused/respondents No. 2 to 4 submitted an application for the withdrawal of the said bail petition and entrustment of,. the same to some other Court of competent jurisdiction. Since the learned Sessions Judge had also proceeded on summer vacation and Mr. Muhammad Aslam Somra, Addl. Sessions Judge was acting as Duty Judge. This application for the withdrawal of the bail application and the ntrustment of the same was presented before Muhammad Aslam Sumra, learned Addl. Sessions Judge-respondent No. 1 herein. He on the application passed an order on 25.7.1995 which reads as follows:- "Entrustment to Mehr Ahmed Raza Tharaj, ASJ for disposal in accordance with law." Sd/- Judge The said application was entrusted to Mr. Muhammad Raza Khan, Addl. Sessions Judge as Mr. A.D. Khalid, Addl. Sessions Judge, had proceeded on summer vacation. 5. The learned counsel for the petitioner vehemently argued that the learned Addl. Sessions Judge-Muhammad Aslam Somra, was not competent to pass an order for withdrawing the bail application from the Court of Mr. A.D. Khalid, Addl. Sessions Judge and entrusting the same to the Court of Mr. Ahmed Raza Khan, Addl. Sessions Judge, Multan. The learned counsel has referred Sections 7 and 9 of Cr. P. C. where the word "Sessions Judge" is written for each Sessions Division. The word "Duty Sessions Judge" is no where mentioned in the Cr. P. C. Further argued that Sections 528 Cr. P. C. deals with the entrustment and the withdrawal of the case and this power is exclusively to be exercised by the learned Sessions Judge and not by the Duty Sessions Judge. Impetuously argued that Section 17 Sub-section (4) of Cr. P. C. deals with the situation when the Sessions udge is unavoidably absent or incapable of acting, making the provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge. In the case in hand, the application was already pending in the Court of another Addl. Sessions Judge i.e. Mr. A.D. Khalid, Addl. Sessions Judge. Neither the application could be termed as urgent nor the same be withdrawn and entrusted to another Court of Addl. Sessions Judge. The requirement of sub-section (4) of Section 17 Cr. P. C. is that a person, who performs his duties as Sessions Judge in the absence of the learned Sessions Judge shall only deal with the matters urgent in nature. In support of his contentions he relied upon Wall Muhammad vs. Khizar Hayat and another (1982 P.Cr.L.J. 501). 6. The second leg of the argument of the learned counsel for the petitioner is that the order itself speaks that the same was passed without notice to the petitioner and no reasons were given while passing this order, justifying it. Lastly argued that this order is not only illegal but has also been passed without lawful authority and is liable to be set aside. 7. On the other hand, the learned counsel for the respondents did not controvert the contentions raised by the learned counsel for the petitioner. 8. I have heard the learned counsel for the pm lies at a considerable length and have also gone through the record with then assistance. 9. The bail petition of respondents No. 2 to 4 was, admittedly, entrusted to the Court of Mr. A.D. Khalid, learned Addl. Sessions Judge, Multan by the learned Sessions Judge, Multan , who had proceeded on leave, thereafter. Mr. A.D. Khalid, learned Addl. Sessions Judge, also had proceeded on leave. The mere reading of the provisions of the Cr.P.C. make it abundant clear that in whole of the Code of Criminal Procedure, no independent existence of the office of Addl. Sessions Judge to act as Judicial Officer in any case unless any case is entrusted to him. It is the competency of the learned Sessions Judge to entrust the cases under section 193(2) of Cr. P. C. and to withdraw the same for further entrustment under Section 528 Cr.P.C. When the learned Sessions Judge himself is unavoidably absent or incapable of acting shall make provisions for the disposal of any urgent applications by an Addl. Sessions Judge. This arrangement can only be made under section 17(4) Cr. P. C. It is made more clear that the arrangement shall only be made for urgent applications. The learned Addl. Sessions Judge was absolutely not competent to entertain an application for the withdrawal of the bail petitions already pending in the Court of other learned Addl. Sessions Judge and make an order for entrustment to another Addl. Sessions Judge. Neither it falls within the terms of urgent matters nor it falls within the competency of the learned Addl. Sessions Judge. i 10. The perusal of the record indicates that the notice was not given to the petitioner while taking decision of withdrawing the bail petition of respondents No. 2 to 4 and for further entrustment to another Court of learned Addl. Sessions Judge, certainly it caused prejudice to the petitioner. In the absence of the notice, to other party, the order would, call for being set aside on this ground alone. 11. In view of what has been discussed above, I hold that the learned Addl. Sessions Judge was not competent to withdraw the bail petition from the Court of Mr. A.D. Khalid, learned Addl. Sessions Judge nor the order for withdrawal and entrustment of the same to another Court could be made and that too without notice. 12. Resultantly, this revision petition is accepted and the order dated 25.7.1995, impugned herein, is set aside. The bail petition of respondents No. 2 to 4 titled as "Sheran Khan etc. vs. The State" shall be deemed pending in the Court of Mr. A.D. Khalid, learned Addl. Sessions Judge, Multan. Order accordingly. (K.K.F.) Revision Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 769 [ Multan Bench] Present: CH. KHURSHID AHMAD, J. GHULAM MUSTAFA-Appellant versus STATE-Respondent Crl. Appeal No. 150-1985 accepted on 27.7.1995. Private Defence-Right of- —-S. 302/307/34 PPC-Murder and Murderous assault-Offences of~ Conviction for-Challenge to-Deceased and P.W. Anwar-ul-Haq were two in number and had not only numerical majority but had also psychological advantage over appellant who was a Mochi by caste as against deceased and injured P.W. who were Arains and tillers of land, enjoying status in agrarian society-Appellant had not repeated injury on person of deceased or on person of P.W.-Place of occurrence was a deserted place and intended assault by deceased and P.W. 8 of committing sodomy cannot be ruled out-One injury to each, deceased and P.W. 8 was given by appellant—High Court is of the view, while under apprehension of being made a victim of sodomy, he had a right of private defence and by inflicting one injury each to both, appellant had not exceeded right of self-defence-Appeal accepted-Acquitted of charge. [P. 776 & 777] A Sahibzada Farooq All Khan, Advocate, for Appellant Mr. Liaquat All Malik, Advocate for State. Date of hearing: 27.7.1996. judgment The appellant was convicted by Sessions Judge, Sahiwal on 7.7.1985 under Section 302 PPC for committing the murder of Abdul Ghaffar alias Phanna and under Section 307 PPC for mounting murderous assault on Anwar ul Haq injured P.W. respectively. The appellant was sentenced to life imprisonment and a fine of Rs. 1,000/- under Section 302 PPC. In default of payment of fine, he was to further undergo S.I. for 6 months and was also to pay compensation of Rs. 1,000/- under Section 544-A Cr. P. C. and in default of payment he was to suffer further S.I. for 6 months and in case the amount was received, the same was to be paid to the legal heirs of the deceased. For the commission of offence under Section 307 PPC the appellant was sentenced to 3 years R.I. and a fine of Rs. 500/-. In default of payment of fine, he was to suffer further S.I. for 3 months. He was ordered to pay compensation in the sum of Rs. 500/- under Section 544-A Cr. P. C. which was to be paid to Anwar ul Haq injured P.W. 8. Both the substantive sentences of imprisonment were ordered to run concurrently. His co-accused Ghulam Abbas was acquitted by the trial Court, extending him the benefit of doubt. 2. Theoccurrencetookplaceatabout5.30p.in on 8.10.1984 in the revenue limits of Chak No. 17/11-L Police Station Chu:ha Watni and was reported at 6.00 p.m. at the Police Station by Murid Hussain son of Bashir Ahmad, the real brother of deceased Abdul Ghaffar alias Phanna. In his statement under Section 154 Cr. P. C. he stated that at 5.30 p.m. that day, he was proceeding to see Maila Pir Hakim Ali Shah in Chak No. 13/11-L alongwith Muhammad Akram son of Muhammad Boota. When they reached ear the Atkairian Rest House, they was Abdul Sattar P.W. smoking Huqqa in his fields. They sat near him and started smoking. After some time they heard noise at the bridge. They saw Abdul Ghaffar alias Phanna deceased and Anwar ul Haq P.W. 8 present there. They also saw Ghulam Abbas, acquitted accused, having taken Abdul Ghaffar in his Japha. Ghulam Mustafa appellant who was holding a Churri at that time, inflicted a blow on the chest of Abdul Ghaffar on the left of his chest and on seeing they ran away. He also gave a Churri below to Anwar ul Haq on the left side of his back. Abdul Ghaffar fell down after suffering the injury. Abdul Ghaffar deceased and Anwar ul Haq, who were in their senses, were removed to Civil Hospital, Chicha Watni. Abdul Ghaffar died on his way to the hospital. After reaching the hospital, he left for the Police Station, Chicha Watni. He made his statement Ex. PJ which was read over the to him and he signed the same in token of its correctness. The statement was recorded by Muhammad Munawar SI who arrested both the accused on 14.10.1984 and the appellant allegedly led to the recovery of Khanjar P. 10 on 17.10.1994. Muhammad Munawar Khan P.W. 11 conducted investigation and after completion of the same got the accused in the case challenged. 3. The appellant and his co-accused were sent up to stand their trial by the Magistrate having jurisdiction in the matter. Charge was framed on 7.4.1985 under Section 302/34 PPC for committing the murder of Abdul Ghaffar alias Phanna and under Section 307/34 PPC for mounting murderous assault on Anwar ul Haq PW in furtherance of the common intention of the present appellant and Ghulam Abbas, his co-accused. The charge was read over to the accused and explained. They pleaded not guilty to the charge and claimed trial. 4. At trial, the prosecution produced Malik Muhammad Aslam, M.I.C. Multan PW. 1 who had, during his posting as R.M. Chicha Watni, recorded statement of Anwar ul Haq PW as dying declaration at the instance of Muhammad Munawar Khan SI at Civil Hospital, Chicha Watni in the presence of Dr. Muhammad Salim, Medical Officer. He recorded the statement of the Medical Officer Ex. PA/1 and after satisfying himself that the witness was fit to make the statement, recorded the same in his own hand which is Ex. PA/2. The same was read over to the witness and certificate Ex. PA/3 was recorded by him. He admitted that he had not obtained the signatures or thumb impression of Anwar ul Haq, injured PW, on his statement and note to the effect that the statement was read over to the witness was also not given by him. 5. Dr. Muhammad Saleem, Medical Officer, appeared as P.W. 2. He medically examined Anwar ul Haq PW 8 and found the following injury on his person:- "An incised wound 3 cm x \ cm x deep going on the left lumber region with Haemoatoma around the wound 10 cm x 10 cm. Corresponding cut was on the shirt & Banian. Fresh bleeding was coming from the wound. Pulse was 84 per minute. B.P. 100/80. Temperature 99/4F. The condition of the patient was serious." The injury was kept under observation and was caused by sharp edged weapon. Ex. PB was the correct carbon copy of his medico-legal report and the injury aforesaid was subsequently declared as simple. 6. On 9.10.1984 P.W. 2 conducted the postmortem examination on the dead body of Abdul Ghaffar alias Phanna, which was identified by Bashir Ahmad and Muhammad Sadiq P.Ws and was brought by Mohabbat Khan Constable No. 195. The following injury was found on the dead body:- "An incised wound 3 cm x 2 cm x deep going on the front of mid of left chest, 2 cm below and inner to the left nipple. There was corresponding cut on the shirt." On dis-section, 4th rib of left side of chest was found cut. Left pleura and lungs were cut at two places. So was the pericardium and diaphram under injury No. 1. Left side of chest cavity was full of clotted blood. The death, in his opinion, was the result of shock and haemorrhage due to injury No. 1 which was fatal, grievousand sufficient to cause death in the ordinary course of nature. Time between injuries and death was 20 to 30 minutes and between death and postmortem 12 to 14 hours. Ex. P.C. was he postmortem report whereas Ex. PC/1 was the diagram showing location of injuries. He handed over the last worn clothes of the deceased and the relevant papers to the Constable. On 8.10.1984, the statement of Anwar ul Haq was recorded in his presence by PW 1 and the injured remained conscious during the recording of his statement. He made his statement to that effect which was signed by him and the same was Ex. PA/1. He admitted that the injury on the person of Anwar ul Haq was not dangerous to life. The witness was, however, referred to D.H.Q. Hospital, Sahiwal the same night. The injury, in his opinion, on the person of Abdul Ghaffar was caused with sharp edged weapon but he could not say that it was pointed weapon or not. The bleeding, according to the witness, would be slow on suffering injury and there was no profused bleeding. 7. Manzoor Hussain Patwari appeared as P.W. 3. He stated that he had visited the spot on 1.11.1984 and had prepared the site plan of the place of occurrence Ex. PD and PD/1 at the instance of the Police and on the pointation of witnesses in the scale of 8 Karams to an inch. The drawings and notes in black were in his hand and Rajbah was shown in blue pencil. According to this witness, Thanedar had shown him the points which were shown by him in the site plan. Names of the accused were not mentioned to him nor were shown in the site plan. He admitted that Rest House Atkairian was adjacent to point No. 1 on Ex. PD and there were residential quarters of Overseers and other staff of the Irrigation Department. The residential quarters were Ziladar, Overseers, Telegram Clerk, Peon, Mate and Chowkidar etc. The land of Chaudhary Bashir Ahmad Chak No. 13/11-L was on the eastern side of Rajbah whereas the occurrence took place on the western side. Muhammad Rafiq Constable PW 4 was handed over two sealed parcels of this case on 21.10.1984 which he delivered intact on 23.10.1984 at the office of the Chemical Examiner. Mohabbat Ali Constable PW 5 was handed over the dead body of Abdul Ghaffar which was taken by him to the mortuary at Chicha Watni and delivered intact to Medical Officer for postmortem examination. After the postmortem examination, he was delivered the last worn clothes of the deceased, Shalwar P. 1 and shirt P. 2 which he delivered to the Investigating Officer who secured the same vide memo. Ex. PE. Muhammad Sadiq PW 6 had identified the dead body of Abdul Ghaffar at the time of postmortem examination and was also a marginal witness of memo. Ex. PE. Muhammad Faiz PW 7 was the witness of recovery of blood stained earth from the place of occurrence which, according to him, was made into a sealed parcel and secured through memo Ex. PF. He was also a marginal witness to the recovery memo of blood stained shirt P. 3 and Shalwar P. 4 belonging to Anwar ul Haq PW which were secured vide memo. Ex. PG. In his presence, Ghulam Mustafa appellant/accused while in custody led to the recovery of Khanjar P. 5 from the Almira of his Baithak which was blood stained, was made into a sealed parcel and was secured through memo Ex. PH. He was marginal witness of the memos. He admitted that the statement of Murid Hussain first informant was recorded in the hospital by the Thanedar and it was in his presence in the hospital that thumb impression of Murid Hussain was obtained on the statement by Muhammad Munawar Khan SI. Regarding recovery of Khanjar, he stated that the Almirah, had no shutters and was facing the outer door of the Baithak. After recovery of Khanjar they went to the Dera of Raja Farzand Ali Lambardar where Khanjar P. 5 was made into a sealed parcel and he had provided the cloth for the purpose of parcel. The recovery memo was also signed by him at the Dera of Lambardar. He, however, denied that Khanjar was planted on the appellant. 8. Anwar ul Haq PW 8 was injured during the occurrence. He stated that at the shrine of Pir Hakim Ali Shah in Chak No. 13/11-L he had gone on bicycle alongwith Abdul Ghaffar alias Phanna. Ghulam Mustafa and Ghulam Abbas accused were present there who were close friends. Ghulam Abbas accused locked the bicycle and handed over the key of the lock to Ghulam Mustafa. They demanded the key back but Ghulam Mustafa refused. They grappled with each other but were separated and the persons who assembled there got the key returned to them. TUe threatened them. After seeing the Maila they were coming back. When r.uey reached near the Rest House of Atkairian the accused were sitting in ombush. They stopped the PW and the deceased and stated that they would take the revenge. The appellant was holding a Churri. He inflicted the same on the left side of the chest of Abdul Ghaffar who fell down. Ghulam Abbas took him in Japha and Ghulam Mustafa inflicted a Churri blow on his back. Akram, Abdul Sattar, Murid Hussain P.Ws came there. They were taken to the Civil Hospital, Chicha Watni where he was medically examined. His statement was recorded and the Police took his blood stained clothes from the hospital. He admitted that Ghulam Mustafa appellant was a Mochi whereas the deceased and the P.Ws were Arains by caste. Ghulam Abbas accused was Sheikh. He was son of a shopkeeper. Ghulam Mustafa was studying in a College. Ghulam Abbas accused was studying in 9th class. The witness was engaged in agriculture. He denied that Abdul Ghaffar was known as Phanna because was a man of immoral character and that was the reason of his nick name. The deceased was his maternal cousin. The fathers of both the deceased and the P.Ws were landless tenants. The witness admitted that he made a statement before a Magistrate. When confronted, there were very material improvements. The witness also contradicted the statement Ex. PA/2 recorded by the Magistrate PW 1. He also made improvements in bis statement made under Section 161 Cr. P. C. He, however, asserted that "I had narrated the true facts of the occurrence in detail to the Magistrate and the Thanedar." It shall not be out of place to reproduce the English rendering of his statement made to the Magistrate. It reads:- "Stated that he had gone to witness Maila at Chak No. 13/11-L at 4.00 p.m. Mustafa son of Siraj locked his cycle and on his asking of the key, he started quarreling but the people around separated them. At 6.00 p.m. He, Phanna, Ghulam Abbas and Mustafa was coming back. When they reached near the Bungalow, all the four started quarrelling. Abbas caught hold of him. Mustafa gave a Churri blow to Phanna on his chest and a blow to him and ran away. The other companions took them to the hospital. He was making the statement in his full senses and was not in the state of unconsciousness." In the statement recorded under Section 164 Cr. P. C. PW 8 excludes the presence of Murid Hussain, Muhammad Akram and Abdul Sattar PWs and this was his statement which was made by the witnesses to the Magistrate under apprehension of death. There was no reason for omitting the names of P.Ws otherwise. It rather infers, that some persons other than the P.Ws were accompanying them at the time and had taken them to the hospital. The prosecution failed to produce them in the witness box leading to adverse inference. 9. Murid Hussain PW 9 was the first informant and he have almost the same stoiy which he had given in the statement under Section 154 Cr. P. C. and recorded as Ex.PJ. His presence at point No. 3 is not believable as according to the Patwari the land of Bashir Ahmad PW was on the right side of the Rajbah. In any case, PW 9 is a chance witness and has not been mentioned by Anwar ul Haq PW in his statement under Section 164 Cr. P. (Ex. PA/2) and thus I am of the view that Murid Hussain had not witnesses the occurrence. I would also excluded the evidence of Abdul Sattar PW 10 on similar grounds. He, however, admitted that the Rest House was at the equal distance from the place of occurrence, to the one where they were smoking Huqqa. Abdul Sattar PW was the uncle of Anwar ul Haq PW and was an interested witness and as such I exclude his evidence from consideration. Muhammad Akram PW was given up by DBA on 9.4.1985. uhammad Sadulla Khan SI was also given up on the same day being unnecessaiy. Muhammad Anwar PW 12 was posted as Muharrir Head Constable at Police Station Chicha Watni on 9.10.1984. He was delivered one sealed parcel for safe custody by Muhammad Munawar Khan PW 11. On 17.10.1984 the SI delivered him the sealed parcel containing Khanjar. Both the parcels were delivered by him to Muhammad Rafiq Constable PW 4 for onward delivery at the office of Chemical Examiner. 10. Muhammad Munawar Khan SI had registered the FIR on the statement of Murid Hussain on 8.10.1984 when he was posted as Addl. S.H.O. Chicha Watni. The same was read over to, admitted correct and signed by Murid Hussain. It was Ex. PJ, He went to the hospital and inspected the dead body of Abdul Ghaffar, prepared Inquest Report Ex. PK and injury statement Ex. PK/1 and sent the dead body for postmortem examination under the escort of Mohabbat All PW 5. He got recorded the statement of Anwar ul Haq injured PW by the R.M. Chicha Watni. On 9.10.1984 he visited the spot, inspected the same and collected the blood stained earth, made the same into a sealed parcel and secured the same vide memo Ex. PF. Last worn clothes of the deceased, Shalwar P. 1, shirt P. 2 were produced before him by PW 5 which he secured vide memo Ex. PE. One Muhammad Riaz produced blood stained clothes of Anwar ul Haq, shirt P. 3, Shalwar P. 4 which were secured vide memo Ex. P.G. He prepared Ex. PL, the rough site plan of the place of occurrence and also got prepared the site plans by Manzoor Hussain Patwari. He gave notes No. 1, 2 and 3 in red ink, under his hand. On 14.10.1984 he arrested both the accused. 11. Ghulam Mustafa while in custody led to the recovery of a Khanjar P. 5 on 17.10.1984 from the Almirah of his Baithak of his residential house. The same was made into a sealed parcel. The parcels were deposited by him with PW 12 Muharrir Head Constable for safe custody and despatched to the office of the Chemical Examiner. He admitted that he had not mentioned, in the first inspection note that the complainant and the PWs were smoking Huqqa at the time of occurrence. He also admitted that n recovery memo Ex. PH he first wrote Churri and then changed the same into Khanjar. He had not searched the house of the accused on the date of his arrest, effected from his house. He was suggested that he fabricated the recovery of Khanjar and also the story of the prosecution after making preliminary investigation, in consultation with the complainant. He denied that Anwar ul Haq and Abdul Ghaffar deceased had taken Ghulam Mustafa accused for the purposes of sodomy at a deserted place and he, in order to save his honour and person, acted in self defence and caused injuries to Abdul Ghaffar and Anwar ul Haq with an ordinary knife. He also denied that Ghulam Abbas was falsely involved in the case at the instance of Muhammad Sadiq, a Councillor and a friend of the complainant. 12. On 29.4.1985, the Special Public Prosecutor tendered in evidence the report of the Chemical Examiner Ex. PM and that of the Serologist Ex. PN and closed the case of the prosecution. 13. The statement of both the accused were recorded on 29.4.1985 under Section 342 Cr. P. C. Ghulam Mustafa (17) made the following statement:- "Infact Abdul Ghaffar alias Phanna and Anwar ul Haq PW, who are habitual sodomyist, caught me and near the Canal Rest House Atkairian. They attempted to commit sodomy with me. I resisted but when I feel that they would not spare me and would commit sodomy with me, I had a knife with me. I gave blows to the deceased and Anwar ul Haq PW to save myself from sodomy. My co-accused Abbas was not present there." He also made statement on oath under Section 340(2) Cr. P. C. in which he stated that he was proceeding to Abadi near Atkairian Rest House on the said date. When at 5.00 or 5.30 p.m. he reached near the bridge he found Abdul Ghaffar deceased and Anwar ul Haq there. They tried to commit sodomy with him. They removed his Shalwar and he raised noise. Abdul Ghaffar deceased gagged his mouth; he had been trying to resist; he had a knife in his pocket meant for cutting Miswak; brought out that knife and inflicted one injury each to Abdul Ghaffar deceased and Anwar ul Haq PW to save his honour and went to the village. When the Police came to his village, he handed over the knife to the Police. No Khanjar was recovered from him. He was put to a lengthy cross examination and was also put the prosecution version which was denied by him. 14. Statement of Ghulam Abbas (aged 15/16 years) was also recorded under Section 342 Cr. P. C. He denied the prosecution story and claimed innocence. He also made the statement on oath under Section 340(2) Cr. P. C. and stated that he was not present at the place of occurrence and that he was innocent. 15. Amir Ali Signaller was produced as DW 1. He stated that he was posted at Dad Fatiana for the last 7 years. Rajbah 11-L flows from the Lower Bari Doab Canal and was in his circle. He has to maintain a register for making entries regarding signals received by him from the XEN. He produced said register. According to his register, he received Canal Wire No. 401 from XEN, Sahiwal through Signaller Sahiwal on 7.10.1984, that "rotational programme for the period 8.10.1984 to 15.10.84 Group 'A' will be in first preference and Group 'B' will be in second preference. All channels of Group 'A' shall be open to 11-L and 5-L should be closed with immediate effect. He had to get the implementation of the message through Pansaal Nawees. He conveyed the message of XEN to Muhammad Hussain Pansaal Nawees on 7.10.1984. He had also brought the Gage Register. According to the entries made by him, Rajbah 11-L remained closed from 8.10.1984 to 15.10.1984. Muhammad Hussain DW 2 was Pansaal Nawees. He supported DW 1 in entirety and according to him, Rajbah 11-L was closed on 8.11.1984 and remained closed till 15.10.1984 according to the entries in the register, maintained in the ordinary course of official functions. According to the register Rajbah 11-L was closed by him at 6.00 a.m. on 8.10.1984. The canal water which be already in the Rqjbah was to flow out of it within 2/3 hours making it dry. The defence was closed thereafter. 16. The trial Court disbelieved the three alleged eye witnesses and held that the story of the prosecution was not established in toto. The accused and the victims were returning from the Maila, the accused did not sit in ambush near the bridge and it was an abrupt fight having taken place at the place of occurrence. 17. I do agree with the trial Court that the stoiy of the prosecution was not proved and that the three P.Ws of the occurrence including Anwar ul Haq injured PW 8 were of no credence and if that be the ca'se, there remains only the statement of Ghulam Mustafa accused. Had this statement not been made by Ghulam Mustafa appellant, it was a case of no evidence, but where the appellant has himself taken a plea of private self defence, he was obliged to prove the same. The presence of P.W. 8 and 9 near the place of occurrence was also belied by the official record produced by DW 1 and 2. The water was not running in the canal and so there could be no question of watering the field by Abdul Sattar PW. 18. I am left with the defence plea of the appellant, who was aged about 17 on the day he made the statement in Court. The age of Anwar ul Haq, as given in the medico-legal report, was 25 years. The deceased and the P.W. were two in number and had not only the numerical majority but had also the psychological advantage over Ghulam Mustafa appellant who was a Mochi by caste as against the deceased and injured PW who were Arains and tillers of the land, enjoying the status in agrarian society. The appellant had not repeated injury on the person of deceased or on the person of Anwar ul Haq. The place of occurrence was a deserted place and the intended assault by the deceased and PW 8 of committing sodomy cannot be ruled out in the circumstances. One injury to each of Abdul Ghaffar alias Phana and Anwar ul Haq was given by the present appellant and in my view, while under the apprehension of being made a victim of sodomy, he had a right of private defence and by inflicting one injury each to both, the appellant had not exceeded the right of self defence. He is accordingly acquitted of the charge. He is on bail. He is discharged from the bail bonds. K.K.F. Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 777 [Multan Bench] Present: MUHAMMAD NASEEM, J. NOORA-Petitioner versus STATE-Respondent Crl. Misc. No. 498-B-95 accepted on 20.8.1995. Surety Amount-- —Offence U/Ss. 302/34 PPC-Murder--Offence of--Bail granted by trial court on statutory ground-Quantum of surety amount-Challenge to— Petitioner is not a big zamindar- Legally while awarding punishment of fine or fixing amount of surety bond circumstances of accused have to be kept in mind-It can safely be expressed that petitioner shall not be able to get impugned order executed-His name "Noora" is enough to make out that he is not a wealthy person or that he is a man of means-Surety amount reduced-Petition accepted. [Pp. 778 & 779] A & B Mr. M. Ibrahim Khan, Advocate, for Petitioner. Syed Niaz Ahmad Shah, Advocate, for State. Date of hearing: 20.8.1995. judgment Noora petitioner-accused is involved in case FIR No. 62 registered on 13.4.1993 at Police Station Sadar Bahawalnagar under sections 302/34 P.P.C. He alongwith his co-accused in the furtherance of common intention is alleged to have committed the murder of Ghulam Haider. He was arrested on 5.5.1993. The challan has been submitted^which has been sent up to the court of Session. The charge has been framed. Eight P.Ws have been examined till 12.2.1995. At present the trial Court Additional Sessions Judge has gone on long leave After the lapse of period of two years Noora petitioner moved the Sessions Judge Bahawalangar for his admissin to bail on the statutory ground of his detention for the continuous period of two years. The Sessions Judge Bahawalangar took up the matter and expressed that due to he absence of the Presiding Officer the trial would not be concluded in the near future. He gave the verdict that Noora petitioner-accused had earned a valuable right for his admission to bail on the aforet>a.d statutory ground especially when the Presiding Officer was not working. The operative order passed by the Sessions Judge is reproduced as under- "For the foregoing reasons, I admit the petitioner to post arrest bail purely on statutory ground in the sum of Rs. Five Lac with two sureties in the like amount to the satisfaction of this court. The sureties shall furnish registered deed about their ownership alongwith surety bonds. In case such like sureties are not available, then the petitioner shall be released provided he furnishes bank guarantee of Rs. Ten Lac in favour of the State in this case." 2. Feeling aggrieved of the harshness of the said order as well as the heavy quantum of aforesaid amount this petition has been filed under section 561-A Cr.P.C. for the reduction of the aforesaid amount to some reasonable quantum according to the financial position of Noora petitioner. 3. This petition has been resisted by the State, About the maintainability of the matter in hand and the justification for the reduction of the amount of surety bond learned counsel for Noora petitioner has relied on Muhammad Younus and 2 others vs. The State (PLJ 1984 Cr. C. (Karachi) 244), Mian Abdul Waheed vs. The State (NLR 1989 Criminal 636) andflana Muhammad Siddique vs. The State (1994 P.Cr.L.J. 118 ( Lahore ). Learned State counsel has canvassed that the petitioner is the principal accused who committed a grue-some murder of Ghulam Haider and the Sessions Judge Bahawalnagar has passed the impugned order according to the discretion exercised by him. He expressed the apprehension about the abscondence of Noora petitioner who according to him is a desperate person. y view is that the merits of the impugned order dated 4.6.1995 admitting Noora petitioner to bail can neither be analysed nor dissected as no application for cancellation of bail has been moved by the State or the complainant The dispute in hand is simply about the quantum of the amount. Noora petitioner is not a big zamindar. Legal while awarding punishment of fine or fixing the amount of surely bond the circumstances of the accused have to be kept in mind. After going through the last para, of the pugned judgment dated 4.6.1995 it can safely be expressed/held that the same is rather too harsh and the amount is beyond the reach of Noora petitioner. It is held that order dated 4.6.1995 admitting Noora petitioner to bail with the condition impugned through the filing of this petition has practically nullified the same. The case law is not bereft/lacking of the judicial decisions to the effect that the circumstances in life of the accused nd his financial position must be kept in mind while fixing the surety amount. It has been held in Mian Abdul Waheed vs. The State (NLR 1989 Criminal 636) that the court should take into consideration the financial position of the person concerned as to whether or not he would be in a position to furnish surety and that the order fixing the surety amount beyond the reach of the accused would simply amount to refusal of bail. At present Noora petitioner has reaped/derived the legal benefit of his detention of more than two years in the judicial lock up who on the statutory ground has been admitted to bail. However, it can safely be expressed that he shall not be able to get the impugned order executed in view of this circumstances in life. His name "Noora" is enough to make out that he is not a wealthy person or that he is man of means. No evidence in this regard has been adduced by the State. It is a matter of common observation that persons of means readily stand surety for person (accused) of means while for person (accused) of less/no means some time it becomes difficult to procure a surety of means according to the satisfaction of the concerned Presiding Officer. Keeping in view all the aspects of the dispute in hand I accept this application and dispose of the same by modifying as under the last part of order dated 4.6.1995 passed by the Sessions Judge, Bahawalpur:- "Noora petitioner is admitted to bail in the sum of Rs. 1 lac (Rupees One Lac only) with one surety in the like amount to the satisfaction of the Sessions Judge/Duty Sessions Judge, Bahawalnagar." (K.K.F.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 784 [ Multan Bench] Present: muhammad naseem, J. HAQ NAWAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 2032-B-1995 accepted on 3.3.1996. Bail- —-S. 497(a) 3(1) Cr. P. C.--Offence U/Ss. 324/34 read with section 13(i) Arms Ordinance 1965--Due to lapse of statutory period of one year about petitioners continuous detention it is held that he has earned a valuable right for his admission of bail-There is nothing before court to make out that petitioner is a previously convicted offender or is a hardened desperate or dangerous criminal-Trial has not yet started even after submission of challan-Bail allowed. [P. 786] A Mr. Muhammad Bashir Khan, Advocate, for Petitioner. Syed Muhammad Anwar-ul-Haq, Advocate, for State. Date of baring: 3.3.1996. judgment The sister of Allah Ditta co-accused of Haq Nawaz petitioner and Muhammad Iqbal co-accused was married to Muhammad Raees complainant. Unfortunately the relations between the spouses became strained. Muhammad Raees contracted the second marriage. Due to that on 7.2.1995 at 7.30 P.M. Haq Nawaz petitioner and Muhammad Iqbal coaccused alongwith Allah Ditta co-accused (released on bail) are said to have surprised Amin, Taj Muhammad and Muhammad Raees complainant. At that time Haq Nawaz petitioner and Muhammad Iqbal co-accused were allegedly armed with 7 mm rifle and .12 bore gun. Allah Ditta raised a lalkara. The Ineffective firing was made. There was grappling. The barrel of the rifle was hit by Haq Nawaz petitioner-accused on the nose of Muhammad Raees complainant. Allah Ditta caught hold of Taj Muhammad PW in his Jappha. Haq Nawaz petitioner and Muhammad Iqbal co-accused are further alleged to have given the butt blows. The persons of the Chak arrived at the spot after hearing the firing. Thereafter the accused persons made good their escape on the motor-cycle. About the occurrence FIR No. 34 dated 8.2.1995 stands registered at Police Station Mitroo, District Vehari under section 324/34 PPG and under section 13(i) of the Arms Ordinance, 1965. On 28.6.1995 the bail plea of Haq Nawaz petitioner was dismissed by this Court. He filed applications before the lower Courts for his admission to bail but remained unsuccessful. He has filed this petition in this Court to be admitted to bail. 2. I have heard the learned counsel for the petitioner as well as learned State counsel and gone through the record before me. The only ground agitated by the learned counsel for the petitioner is that this petitioner was arrested on 14.2.1995 while today is 3.3.1996 and that the continuous period of detention of Haq Nawaz petitioner has exceeded one year. According to him under Clause (a) proviso 3 to sub-section (1) of section 497 Cr. P. C. an accused of any offence not punishable with death is entitled to be admitted to bail if the continuous period of his detention exceeds one year and whose trial for such offence has not concluded. It is mentioned in proviso 4 to sub-section (1) of section 497 Cr. P. C. that the provisions of 3rd proviso to the said section are not applicable to a previously convicted offender or to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal. It has been canvassed by the learned counsel for the petitioner that the petitioner has earned a valuable right in view of the aforesaid aspect of the matter On the contrary the contention of the learned State counsel is that the petitioner is directly involved in the occurrence whose name is mentioned in the FIR and that he is not entitled to he admitted to bail. My view is that the assertion raised by the learned counsel for Haq Nawaz petitioner has to be given the weight. Due to the lapse of the statutory period of one year about his continuous detention it is held that the petitioner has earned a valuable right for his admission to bail as there is nothing before this Court to make out that he is a previously convicted offender or is a hardened, desperate or dangerous criminal. The reasoning adopted by the learned State counsel cannot be given the weight in view of this aspect of the matter that the petitioner, as expressed above, has earned the valuable legal right for the purpose of his admission to bail on the statutory ground of his continuous detention for a period of one year and whose trial has not yet started, even after the submission of the challan which is the admitted fact. 3. For what has been said above, I accept this application and admit Haq Nawaz petitioner to bail in the sum of Rs. 15,000/- (rupees fifteen housand) with one surety in the like amount to the satisfaction of the Additional Sessions Judge, Mailsi, District Vehari. 4. Copy dasti subject to payment of usual charges, if desired. (K.K.F.) . Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 784 [ Multan Bench] Present: muhammad naseem, J. HAQ NAWAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 2032-B-1995 accepted on 3.3.1996. Bail- —-S. 497(a) 3(1) Cr. P. C.--Offence U/Ss. 324/34 read with section 13(i) Arms Ordinance 1965--Due to lapse of statutory period of one year about petitioners continuous detention it is held that he has earned a valuable right for his admission of bail-There is nothing before court to make out that petitioner is a previously convicted offender or is a hardened desperate or dangerous criminal-Trial has not yet started even after submission of challan-Bail allowed. [P. 786] A Mr. Muhammad Bashir Khan, Advocate, for Petitioner. Syed Muhammad Anwar-ul-Haq, Advocate, for State. Date of baring : 3.3.1996. judgment The sister of Allah Ditta co-accused of Haq Nawaz petitioner and Muhammad Iqbal co-accused was married to Muhammad Raees complainant. Unfortunately the relations between the spouses became strained. Muhammad Raees contracted the second marriage. Due to that on 7.2.1995 at 7.30 P.M. Haq Nawaz petitioner and Muhammad Iqbal coaccused alongwith Allah Ditta co-accused (released on bail) are said to have surprised Amin, Taj Muhammad and Muhammad Raees complainant. At that time Haq Nawaz petitioner and Muhammad Iqbal co-accused were allegedly armed with 7 mm rifle and .12 bore gun . Allah Ditta raised a lalkara. The Ineffective firing was made. There was grappling. The barrel of the rifle was hit by Haq Nawaz petitioner-accused on the nose of Muhammad Raees complainant. Allah Ditta caught hold of Taj Muhammad PW in his Jappha. Haq Nawaz petitioner and Muhammad Iqbal co-accused are further alleged to have given the butt blows. The persons of the Chak arrived at the spot after hearing the firing. Thereafter the accused persons made good their escape on the motor-cycle. About the occurrence FIR No. 34 dated 8.2.1995 stands registered at Police Station Mitroo, District Vehari under section 324/34 PPG and under section 13(i) of the Arms Ordinance, 1965. On 28.6.1995 the bail plea of Haq Nawaz petitioner was dismissed by this Court. He filed applications before the lower Courts for his admission to bail but remained unsuccessful. He has filed this petition in this Court to be admitted to bail. 2. I have heard the learned counsel for the petitioner as well as learned State counsel and gone through the record before me. The only ground agitated by the learned counsel for the petitioner is that this petitioner was arrested on 14.2.1995 while today is 3.3.1996 and that the continuous period of detention of Haq Nawaz petitioner has exceeded one year. According to him under Clause (a) proviso 3 to sub-section (1) of section 497 Cr. P. C. an accused of any offence not punishable with death is entitled to be admitted to bail if the continuous period of his detention exceeds one year and whose trial for such offence has not concluded. It is mentioned in proviso 4 to sub-section (1) of section 497 Cr. P. C. that the provisions of 3rd proviso to the said section are not applicable to a previously convicted offender or to a person who in the opinion of the Court is a hardened, desperate or dangerous criminal. It has been canvassed by the learned counsel for the petitioner that the petitioner has earned a valuable right in view of the aforesaid aspect of the matter On the contrary the contention of the learned State counsel is that the petitioner is directly involved in the occurrence whose name is mentioned in the FIR and that he is not entitled to he admitted to bail. My view is that the assertion raised by the learned counsel for Haq Nawaz petitioner has to be given the weight. Due to the lapse of the statutory period of one year about his continuous detention it is held that the petitioner has earned a valuable right for his admission to bail as there is nothing before this Court to make out that he is a previously convicted offender or is a hardened, desperate or dangerous criminal. The reasoning adopted by the learned State counsel cannot be given the weight in view of this aspect of the matter that the petitioner, as expressed above, has earned the valuable legal right for the purpose of his admission to bail on the statutory ground of his continuous detention for a period of one year and whose trial has not yet started, even after the submission of the challan which is the admitted fact. 3. For what has been said above, I accept this application and admit Haq Nawaz petitioner to bail in the sum of Rs. 15,000/- (rupees fifteen housand) with one surety in the like amount to the satisfaction of the Additional Sessions Judge, Mailsi, District Vehari. Copy dasti subject to payment of usual charges, if desired. (K.K.F.) . Bail allowed

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 786 [ Multan Bench] Present: riaz hussain, J. Mst. WAZIRAN MAI-Petitioner versus GHULA HASHI-Respondent Cri. Misc. 78/H-95 dismissed on 22.2.1995. Criminal Procedure Code, 1898 (Act V of 1898)— —-S. 491--Recovery and production of a married girl-Girl states that she is living a happy marital life and, therefore, allegation that she is in illegal confinement is absolutely baseless-High Court is of the opinion that petitioner is treading on thin legal advice-Petition dismissed. [P. 787] A & B Mr. Kanwar Muhammad Younas, Advocate, for Petitioner. Mr. Hameed Azhar Malik, Advocate, for Respondents. Date of hearing: 22.2.1995. order This application has been filed by the petitioner, Mst. Waziran Mai, for the recovery and production of Mst. Haseena Mai. On 15.2.1995, respondent No. 1 was asked to produce Mst. Haseena Mai. He is present alongwith Mst. Haseena Mai. Her husband, Mulazim Hussain, is also present alongwith minor child born from this wedlock. Mst. Haseena Mai states that she is living a happy marital life with her husband Mulazim Hussain and, therefore, the allegation that she is in the illegal confinement is absolutely baseless. She further sates that she hates the idea to desert her husband against whom she has no grievance. In view of the above statement, I am of the opinion that the petitioner is treading on the thin legal advice. It is very sad that in our society, some parents unnecessarily interfere in the matrimonial affairs of the spouses for some petty interests, usually resulting in their separation. They gloss over the fact that their interference often proves to be perilous to the spouses. By as well as to themselves. This petition is hereby dismissed. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 787 [ Multan Bench] Present: muhammad naseem, J. RAO MUHAMMAD JAMIL KHAN-Petitioner versus STATE-Respondent Crl. Misc. No. 26-Q-95 dismissed on 6.3.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 561-A~Proceedings--Quashment of~When alternate remedy is available to an accused U/S 249-A Cr. P. C. resort cannot be had to provisions of section 561-A Cr.P.C.-High Court is of the view that in judicial hierarchy petition to obtain proposed relief has to be first of all moved before and disposed of by court of lowest grade-Wisdom behind is that on announcement of final order aggrieved party is not deprived of assistance of next Appellate/Revisional Court-Held: Petitioner has not moved trial court U/S 249-A, quashment petition U/S 561-A need not be further processed with, which is not maintainable-Petition dismissed. [Pp. 788&7S9] A & B Sardar Muhammad Latif Khan Khosa, Advocate, for Petitioner. Mr. Rizwan Rehmat Wasti, Advocate, for State. Date of hearing: 6.3.1996. udgment On the basis of registration of crime case No. 70 dated 28.10.1992 at Anti-Corruption Establishment Multan under sections 409/420/467/468/ 471 and 109 PPG and under section 5 of the Prevention of Corruption Act, 1947 the investigation was conducted by the competent police. The challan for the prosecution of Rao Muhammad Jamil Khan petitioner-accused alongwith his co-accused has been submitted before the learned Special Judge Anti-Corruption Multan. The trail was to be commenced. However, this petitioner filed this petition for the quashment of alleged illegal prosecution/proceedings against him pending in the aforesaid learned trial Court. 2. It has been narrated in the petition under disposal that the petitioner was working as the Chief Officer Municipal Corporation, Multan . Tameer-e-Watan Program was started and the defalcation in the budget was found. The averment of the petitioner is that he had no concern with the expenditure of the budget as the budget was awarded to the Member Provincial Assembly who utilized the same after preparation of the schemes which were carried out by the Engineering Branch of the Multan Corporation. He added that he had to work as Liaison Officer and the criminal liability could not be placed upon his shoulders alongwith his coaccused. This petition has been resisted by the State. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the file before me. The preliminary objection raised by the learned counsel for the State is that the efficacious remedy as provided under section 249-A Cr. P. C. is available to the petitioner-accused and that the extra-ordinary remedy under section 561-A Cr. P. C. cannot be availed by the petitioner forthwith. The answer made by the learned counsel for the petitioner to the aforesaid objection is that the matter was initiated at the direction c f Multan Bench of the Lahore High Court and thus it is an exceptional -,,'vr .nstance to further process with this petition directly before this Court. I am, however, of the view that the objection raised by the learned counsel for the State must prevail. Even if the FIR was got registered at the directions of the Lahore High Court, Multan Bench, Multan the mandatory provisions mentioned under section 249-A Cr. P. C. can neither be ignored nor violated. In the writ jurisdiction the First Information Report is registered at the directions of the High Court but the procedure has to take its course and no exceptional treatment can be granted to any criminal case in this regard. The case law is not bereft (lacking) to the effect that when the ternative remedy is available to an accused under section 249-A Cr. P. C. resort cannot be had to the provisions of section 561- Cr.P.C. Ruling published as Khushi Muhammad and 4 others vs. The State (1979 SCMR 94) is referred in this respect. I have to express my view that in the judicial hierarchy the petition to obtain the proposed relief has to be first of all moved before and disposed of by court of the lowest grade who in the instant case is non else than the learned Special Judge Anti-Corruption, Multan . The trial Court has to apply his mind to the aspects of the matter agitated in this quashment petition in the first instance if the application u/s 249-A Cr.P.C. is moved and decide whether the petitioner is entitled to be acquitted in terms of section 249-A Cr. P. C. The wisdom behind is that on the announcement of the final order the aggrieved party is not deprived of the assistance of the next Appellate/Revisional Court . The objection raised by the learned counsel for the State is sustained and I hold that in view of the admitted position that the petitioner has not moved the trial court under section 249-A Cr. P. C. this quashment petition under section 561-A Cr. P. C. need not be further processed with which is not maintainable. 4. For what has been said above, I dismiss this petition in the aforesaid terms. The petitioner can proceed in accordance with law under Section 249-A Cr. P. C. before the learned Special Judge Anti-Corruption, Multan if advised thereof and desired by him. 5. Now the Special Judge Anti-Corruption, Multan can start the trial of the case. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 789 Present: DR. GHOUS MUHAMMAD, J. SAEED FAROOQ-Petitioner versus STATE and 2 others-Respondents Criminal Misc. Application No. 42 of 1995, accepted on 30.10.1995 (i) Criminal Law Amendment Act, 1958 -—Schedule read with Criminal Procedure Code, 1898, Sections 265-K and 561-A-Public servant-Commission of scheduled offence by-Proceedings before Additional Sessions Judge-Quashment of-Prayer for-Whether scheme of 1958 Act requires commission of offence by a public servant in his capacity as a public servant and not in his private capacity-Question of-Through use of expression "by any public servant as such", Parliament has intended to make offences mentioned in clause (b) of chedule exclusively triable by a special Judge only when public servant allegedly commits those offences in his capacity as a'public servant and not in his private capacity or in his capacity which would have no nexus with his official functions and duties-Held : A public servant is exclusively triable by Special Judge only in respect of offences which are alleged to have been committed in his official capacity. [P. 795] A PLD 1981 Lahore 505, PLD 1975 Kar. 239,1985 P. Cr.LJ 2701 and PLD 1987 SC 250 rel. PLD 1968 Lahore 1124 dissented from. (ii) Remand- —-Public servant-Commission of scheduled offence by-Proceedings before Additional Sessions Judge-Quashment of~Prayer for-From facts of case stated in application, impugned order and F.I.R., it is not altogether clear as to in what capacity applicant had committed alleged offences-It cannot be decided as to whether applicant is to be tried in normal course or whether nature of offences alleged against him, warrant trial by a special Judge under 1958 Act-In normal course of events, a remand order is only to be passed in highly exceptional circumstances-Held : In cases of present nature where very jurisdiction of matter is to be determined after recording further evidence by trial Judge who has omitted to do so, a remand would become inevitable-Appplication accepted and case remanded to Additional Sessions Judge to record preliminary evidence and determine whether applicant has committed alleged offence in his official capacity or private capacity. [Pp. 797 & 798] B, C & D 1992 ALD 281(2) rel. Sardar Muhammad Ishaq, Advocate for Applicant. Muhammad Iqbal Chaudhry, Advocate for State. Date of hearing: 21.6.1995. judgment The applicant has moved the instant Criminal Misc. Application under section 561-A of the Cr.P.C. impugning order passed by Third Additional Sessions Judge, Karachi East, (Mrs. Akhtar A. Chaudhry), (hereafter referred to as "the A.D.J.") dated 15.1.1995 in Sessions Case No. 795 of 1994. 2. The essential facts to crystallize the controversy in issue are that one Ghulam Sabir Khan while in custody disclosed that he alongwith his companion Sardar alias Takar had been involved in sale, purchase, and dealing in stolen motor vehicles. In this respect it is alleged that they were assisted by Saeed and flyas both employes of Excise and Taxation Department to forge necessary documentation. In view of this disclosure, an F.I.R. was lodged against all concerned including Ilyas and Saeed, while charging all the accused under Sections 420, 468, 471, 411, 412 and 34 of the P.P.C. Subsequently, cognizance of the matter was taken by the A.D.J. 3. The accused, Saeed who is an employee in the Excise and Taxation Department as stated above moved an application for acquittal under Section 265-K of the Cr.P.C. before the A.D.J. on grounds that the said court had no jurisdiction to proceed with the case and it was only the Special Judge (Anti Corruption), who had the jurisdiction to take cognizance of the matter inasmuch as that the applicant was a public servant within the meaning of the Pakistan Criminal Law Amendment Act, 1958 (hereafter referred to as "the 1958 Act"), being a clerk in the Excise and Taxation Department. The contention of the applicant was that he was charged with offence specified in the schedule to the 1958 Act and as such the said offences were exclusively triable by the Special Judge. The application moved by the applicant under Section 265-K was dismissed on grounds that the applicant had allegedly forged the documents while acting in his private capacity and not in his capacity as a public servant, hence the instant application for annulment of proceedings before the A.D.J. under Section 561-A of the Cr.P.C. 4. I have heard the arguments advanced by both sides. Mr. Sardar Muhammad Ishaq v the learned counsel for the applicant, has vehemently contended that the learned A.D.J. had materially erred in dismissing the application under Section 265-K as the applicant is admitted a public servant and the offences with which he has been charged with are spelt out in the schedule to the 1958 Act. As such the applicant is triable by the Special Judge (Anti-Corruption), while the proceedings before and cognizance by the A.D.J. are completely bereft of jurisdiction void ab-initio and of no legal effect. The counsel for the applicant has submitted a list of cases at paragraph 3 of the memo of his application and has relied upon the same at the time of arguments as well, which are as under : (i) Mst. Neelam Nawaz v. The State reported in (1994 P.Cr.L.J. 1922); (ii) Mubarak H. Siddiqui v. Sajjad Hassan Khan reported in (PLD 1992 Karachi 167); (iii) Khanzada Hidayat Ali Khan v. Mazhar Ali Khan reported in (1985 P.Cr. L.J. 2871); (iv) Abdul Sattar v. The State reported in (1987 P.Cr.L.J. 344); (v) Hamdard Co-operative Society v. Govt. of Sind reported in (1990 MLD 1060); (vi) The State v. Abdul Rahim Khan reported in (PLD 1988 Lahore 802); (vii) Allah Warayo v. The State reported in (1972 P.Cr.L.J. 585); (\m)Ghulam ullah v. The State reported in (1993 P.Cr.L.J. 1307 = NLR 1993 Cr.L.J. 285). 5. In the first case referred by the learned counsel for the applicant, Mst. Neelam Nawaz v. The State, a division bench of the Lahore High Court has dilated upon the term 'coram non Judice' while holding that any idictment or sentence passed by the court which has no authority to try the accused of an offence is clearly a violation of law and would be coram non judice and a nullity. In the second case cited above, i.e. Mubarak Hussain Siddiqui v. Sajjad Hassan Khan a learned single J udge of this Court held that a Chairman of a Cooperative Society was a "public servant", and when charged with offences which were spelt out in the schedule to the 1958 Act, he was exclusively triable by the Special Judge (Anti-Corruption). Accordingly, proceedings before the Magistrate warranted quashment. In the third case Khanzada Hadayat All Khan v. Mazhar All Khan, complaints were lodged against members and secretary of a cooperative society in respect of cheating, forgery and embezzlement committed by them in the course of their duties, in the court of Senior Special Judge (Anti-Corruption). Although the case touched upon the question as to whether the Senior Special Judge had correctly acquitted the accused under Section 249-A Cr.P.C., Sardar Muhammad Ishaq, the learned counsel for the applicant has made an attempt to use this case a precedent for the fact that public servants who are charged with scheduled offences under the 1958 Act are exclusively triable by the Special Judge, (Anti Corruption). In the fourth case i.e, Abdul Sattar v. The State, a learned single Judge of this Karachi High Court quashed proceedings pending before the Magistrate in respect of noncognizable offences under the Co-operative Societies Act, 1925, which lacked proper sanction in accordance with the prescribed procedure. In the fifth case, Hamdard Cooperative Society v. Government ofSindh, a division bench of this Karachi High Court dismissed a Constitutional Petition against issuance of notice by the Anti-Corruption Establishment on grounds that the purported cognizance was in respect of offences under the Prevention of Corruption Act, 1947, allegedly committed by officers of a Cooperative Society who were public servants. The offences were exclusively triable by Special Judge (Anti Corruption) and as such the cognizance was in order. In the sixth case cited by the learned counsel for the applicant, i.e. The State v. Abdul Rahim Khan, (???) it was held that employees of a Cooperative Bank of all categories were public servants within the meaning of section 21 of the PPC. Accordingly, in case they were charged with scheduled offences under the 1958 Act they were exclusively triable by the Special Judge (Anti Corruption). Accordingly, proceedings before the Magistrate were declared illegal and without lawful authority in the exercise of constitutional jurisdiction. In the seventh case, i.e. Allah Warayo v. The State, (???) a single bench of this Karachi High Court held that where a statute prescribed a forum or procedure for trial that ought to be adopted and not the ordinary procedure. In this manner it was held that offences committed under the Customs Act were exclusively triable by the special Judge (Customs and Taxation). In the last case cited i.e. Ghulam ullah v. The State, a learned Single judge of this Karachi High Court had expressed the view that proceedings without jurisdiction warrant quashment under section 561-A of the Cr.P.C. 6. On the other hand, Chaudhry Muhammad Iqbal, learned counsel for the State has supported the impugned order while contending that the offences in issue were committed by the applicant in his private capacity and as such there was no justification to press for e trial by the Special Judge. 1. I have given a serious thought to the matter and considered the arguments and cases cited by the learned counsel for the applicant. There is absolutely no cavil with the proposition that where a particular procedure is prescribed for doing a particular thing that thing has to be done according to that procedure. In case the prescribed procedure is not followed it would taint the entire proceedings with illegality or irregularity as the case may be. It is also a settled proposition of law that where a particular court or forum has an exclusive jurisdiction to proceed with a case, any attempt by any other forum to take cognizance of the matter or institute proceedings would render the cognizance and proceedings void ab-initio and of no legal effect. 8. At this juncture it would be pertinent to observe that the learned A.D.J. in the impugned order has assumed that the applicant is a public servant, the 1958 Act requires the offences to be committed by the accused in the capacity of a public servant, and that the applicant has conducted himself while committing the alleged offences in his private capacity and not in his capacity as a public servant. In order to resolve the controversies in issue the following points and issues have to be dilated upon :- (i) Whether the applicant is a public servant; (ii) Whether the applicant has been charged with offences which are spelt out in the schedule to the 1958 Act; (iii) Whether the scheme of the 1958 Act requires commission of offences by a public servant in his capacity as a public servant; 9. The first issue as to whether the applicant is a public servant hardly calls for any further scrutiny as the same is an admitted position. In State v. Abdul Rahim Khan (PLD 1988 Lahore 802), the Court held that employees of a Cooperative Bank of all categories were public servants. Following the ratio it is held in this case that the employees of Excise and Taxation Department of any category would be public servants. 10. The second issue as to whether applicant is charged with all the offences spelt out in the schedule to the 1958 Act is now being dilated upon. As per the F.I.R. the appellant is charged with sections 420, 468, 471, 411, 412 and 34 of the P.P.C. Clause (b) to the schedule of the 1958 Act includes sections 408, 409, 417 to 420, 465 to 468, 471 and 477-A of the PPC. As most of the offences to which the accused is charged are mentioned in the schedule of the 1958 Act I would hold this issue in the affirmative i.e. the applicant is charged with the offences spelt out in the schedule of the 1958 Act. Such was also the approach taken by the Lahore High Court in the State vs. Abdul Rahim Khan mentioned above, which was cited with approval and applied by this Karachi High Court in Mubarak Hussain Siddiqui versus Sqjjad Hussain Khan (PLD 1992 Karachi 167). A. In order to decide the third issue stated in para 8 above it must first be borne in mind that the object of the 1958 Act, which was essentially n amendment to the operative criminal laws of the country was to create a Tribunal of special jurisdiction laying down special procedure for control of offences committed by public servants with a view to provide a speedy trial and effective punishment of offences spelt out in the schedule of the said Act. The reasons for simplifying and short-circuiting the normal procedure and appointing special judges to deal with offences committed by public servants is not difficult to comprehend. The philosophy behind enacting such a special law was to primarily check the growing incidents of corruption amongst public servants which were desired to be controlled and curbed by a special machinery so that it may be effective also. Once again the wisdom of law was a realisation that public servants in their capacity can use their contacts and influence to under-mine investigation and process of law illegally to go scot free. Be that as it may, the jurisdiction of a special judge appointed under section 3 of the 1958 Act is to try and punish offence specified in the schedule thereto. This jurisdiction is exclusively conferred on the special judge by virtue of sub-section (1) of section 5 of the said Act which through a nonobstante clause excludes any thing contained in the Criminal Procedure Code or any other law in force. As regards the cognizance of offences the much referred schedule to the 1958 Act contains clauses (a), (b) and (c) alongwith clause (b) thereto are of relevance in the instant case which is reproduced for the sake of convenience as follows : "(b) Offence punishable under sections 408, 409, 417 to 420, 465 to 468, 471 and 477-A of the Pakistan Penal Code, and as attempts, abetments and conspiracies in relation thereto or connected therewith, when committed by an public servant as such or by the person acting jointly with or abetting or attempting to abet or acting in conspiracy with any public servant as such." In the course of examination I have been able to lay hands on a decision of a learned single judge of the Lahore High Court reported as Ashfaque v. The State (TLD 1968 Lahore 1124). In this case while dilating upon clause (b) to the schedule of the 1958 Act, the learned judge expressed his view as under: "The construction sought to be placed by the learned counsel on the expression 'by any public servant as such' obviously purported to mean that a public servant would be tried for such an offence only if it was relatable to and was committed in the course of normal discharge of his official functions. Reliance was placed in this regard on Mukhtar Ahmed v. The State (PLD 1965 Lahore 266) and Saeed Hai v. The State (PLD 1967 Karachi 768). The argument seem wholly mis­ conceived. The interpretation sought to be placed by the learned counsel on the expression 'by any public servant as such' cannot be spelt out either from the statutory provision nor has it any warrant from known principles of interpretation." The learned single judge in that case was of the view that if a distinction was drawn between offences committed by public servant in his official and private capacities it would lead to an arbitrary distinction between the two kinds of offences committed by public servants, namely, offences relatable to the discharge of their official duties and those not so related. The Court was of the view that this would result in an absurd consequence and the distinction would be completely unreasonable inasmuch that the 1958 Act was meant to advance the remedy and prevent the mischief. Respectfully, I am not inclined to agree with the view expressed by the learned single judge in Ashfaq Ahmed vs. The State, as referred above, essentially for two reasons, firstly, the referred clause (b) admittedly uses the expression by "any public servant as such". Any attempt to sanction the interpretation offered by the learned single Judge in Ashfaq Ahmed's case would render the words "as such" to be redundant. It is a settled proposition of law that while interpreting statutes redundancy to any word or expression has to be avoided. Secondly, if there were to be no distinction between functions of a public servant relatable to his official duties and not so relatable thereto the consequence would lead to absurdity. Through use of the expression "by any public servant as such" the Parliament has intended to make the offences mentioned in the said clause (b) exclusively, triable by a special judge only when the public servant allegedly commits those offences in his capacity as a public servant and not in his private capacity or in his capacity which would have no nexus with his official functions and duties. This proposition can be further demonstrated by an illustration that supposing a customs official whose official function is to assess import and export duties commits offences of mis-appropriation and forgeries in respect of a piece of land owned by some-one else he could hardly be seen as committing the alleged offence in his capacity as a public servant or in the exercise of discharge of his official duties. It would be completely absurd to try the said customs official through the special procedure under £he 1958 Act. In this respect, I am further fortified in arriving at the conclusion that clause (b) to the schedule of the 1958 Act dearly stipulates a distinction between functions of a public servant in his official capacity as opposed to private capacity and it is only in respect of the offences which are alleged to have been committed in the official capacity that a public servant is exclusively triable by the special Judge, as further laid down by the following decisions :- (i) Ganhwar v. The State (PLD 1975 Karachi 239) (ii) Pir Manzur Alt v. Secretary, Ministry of Interior (PLD 1981 Lahore 505) (iii) Muhammad Usman Khan v. Muhammad Arif Qureshi (1985 P.O.L.J. 2701) (iv) S. MahmoodAlam Shah v. The State (PLD 1987 Supreme Court 250). Ip the first case, Ganhwar v. The State a learned single judge of this Karachi High Court was called upon to adjudicate upon a controversy arising out of section 5 (l)(d) of the Prevention of Corruption Act, 1947, (hereafter referred to as the 1947 Act). According to the said section 5(l)(d) of the 1947 Act a public servant commits an offence of criminal mis-conduct if he by corrupt or illegal means or otherwise abuses his position as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage. The learned single judge in this case was of the view that the words "as public servant" assume importance and would imply that a public servant acts as a public servant only when he patently or at least ostensibly acts as a public servant. Writing for the Court Abdul Hayee Qureshi, J.-, (as he then was) expressed the view that the expression "as public servant" would necessarily entail that the public servant committed the alleged act in relation to his office or the alleged act bore a nexus with his office or his status as a public servant. The learned judge went on to hold that a public servant can discharge his duties only as a public servant and not otherwise or in any other manner, while the moment he does an act in a different capacity he could not by any interpretation be said to be discharging his duties. The test as to whether person acted "as a public servant" was whether he expressly or ostensibly committed an offence or did an act in the garb of his office and whether the act bore any relation or semblance to the performance of his official duty. In the second case, Pir Manzoor Ali v. Secretary, Ministry of Interior, the matter concerned an Inspector of the Central Excise Department who was also an Assistant Manager of a Fair Price Shop brought about by the Welfare Committee constituted by the employees of the Central Excise Department and where the said shop had nothing to do with the government. The Court held that the said Inspector while acting as an Assistant Manager of the Shop did not act as a public servant. In the third case Muhammad Usman Khan vs. Muhammad Arif Qureshi a. learned single judge of this Karachi High Court proceeded on the assumption that section 5 of the 1958 Act stipulates the distinction between the private and official capacity of a public servant when he discussed the facts of case before him while stating that the petitioner in that case allegedly persuaded the complainant and his friend to deliver their allotment orders while promising them allotment of alternate plots, in the capacity of Secretary of a Housing Society while committing offences as Secretary of that society and as such was exclusively triable by a Special Judge (Anti-Corruption). In the fourth case, S. Mahmood Alam Shah versus the State a full bench of the Honourable Supreme Court while approving and applying Ganhwar versus The State interpreted clause (b) to the schedule of the 1958 Act as follows : "Clause (b) of the schedule to the aforesaid Act (i.e. the 1958 Act) clearly lays down the offences included therein or triable by the special judge only when committed by a public servant 'as such'. Similar is the position in regard to the section 5(l)(d) of the Prevention of Corruption Act. However, the facts of the present case admittedly are that the appellant was merely acting as an agent of his wife for purposes of collection of arrears of her salary. Therefore, although at the relevant time he was a public servant the transaction in which the alleged offences were committed was by no stretch of imagination a cuiirse of conduct while had any nexus with the duties performed by the appellant in his capacity as a public servant. He was clearly acting in his private capacity." In the light of the pronouncement of the Hon'able Supreme Court I am not inclined to follow the decision of the Lahore High Court in the case of Ashfaque Ahmed as stated above. It appears that clause (b) of the 1958 Act clearly stipulates a diarchy between the functions of a public servant in his official capacity and functions in his private capacity. In my opinion whether a public servant has acted in his capacity as such so as to warrant invocation of clause (b) to the schedule of the 1958 Act the test that is to be employed is whether the transaction in which the alleged offence is committed is by any stretch of imagination a course of conduct which had any nexus with duties performed by the accused in his capacity as a public servant. What is necessary to be seen is that the offence must be in respect of an act done or purported to be done in execution of duty that is in the discharge of an official duty. It must be purported to be done in the official capacity with which the public servant pretends to be clothed at the time, that is to say under the cloak of an ostensibly official act though, of course, the offence would really amount to a breach of duty. An act cannot purport to be done in execution of duty unless the offender professes to be acting in pursuance of his official duty and conveys to the mind of any other the impression that he is so acting. 12. From the facts of the case as stated in the memo of the application as also in the impugned order and the F.I.R. attached, it is not altogether clear as to in what capacity the applicant had committed the alleged offences. I am of the view that the learned A.D.J. has materially erred in not recording preliminary evidence and scrutinizing the record so as to ascertain this point nor has discussed the same in the impugned order. From the facts that are before me I am unable to decide as to whether the applicant is to be tried in the normal course or whether the nature of offences alleged against him warrant trial by a Special Judge under the 1958 Act. In the normal course of events a remand order is only to be passed in highly exceptional circumstances since an order of remand exposes litigant to yet another round of cumbersome proceedings. However, the instant set of proceedings before me are of a highly exceptional nature and would warrant a remand order purely on the ground that the trial judge or even the learned counsel for either sides have not been able to disclose the capacity in which the applicant has committed the alleged offences. I may point out at this stage that where cases are brought either of civil, criminal or fiscal nature against individuals and citizens of the state they should be done so after thorough investigation and after entertaining proper evidence in accordance with prescribed procedure. There has been a growing tendency to remand cases where the functionaries of the state through their own mistakes institute cases against individuals without basis, evidence and upon conjectures. A remand order in such cases is highly objectionable and results in escalated harassment to individuals who are penalised to face a further set of cumbersome proceedings for no fault of their own. Also where during the course of investigation, scrutiny or examination the state officials invite replies by citizens and individuals against whom they are proceeding and those citizens and individuals comply with the requirements and submit whatsoever is required from them, a further remand order would be completely out of place and would constitute an abuse of process of court. However, in cases as the present one where the very jurisdiction of the matter is to be determined after recording further evidence by the trial judge who has omitted to do so, a remand would become inevitable. Such was also the approach taken in Rashid Ahmed versus the State (1992 ALD 281 (2)). 13. The upshot of above discussion is that I set-aside the impugned order, and remand the case back to the learned A.D.J. with the direction to record preliminary evidence and scrutinize the necessary record and to apply the test dilated above to determine whether the applicant has committed the alleged offence in his official capacity or in his private capacity. The entire process is to be complete after giving proper opportunity, reasons and findings within one month of the receipt of the instant order. In case the learned A.D. J. is of the view that is, of course, after applying the test dilated above, that the applicant has committed the alleged offences in his private capacity he/she may proceed with the matter while in case the conclusion is otherwise necessary steps are to be followed in accordance with the law and procedure to make arrangements to remit the matter to the Special Judge (Anti-Corruption) who is to be lawfully possessed of the matter. This of course would not shut the doors of a further appeal in case the order passed by the learned A.D.J. once again suffers from any illegality or material irregularity of either law or fact. 14. Before parting with the judgement I may underscore another aspect of this case. The applicant in his memo of application has stated as ground No. 4 the argument that since the applicant had been charged with a non-cognizable offence, no investigation could be conducted without the permission of the Magistrate under Section 155(2) of the Cr.P.C. which is lacking in this case. Incidentally this point was neither raised nor pressed at the time of arguments. Also no record is available to determine the validity of this argument which leaves me with no other option but to assume that the applicant and his counsel have abandoned this ground. However, in the interest of justice I would not like to close the doors to the applicant to this ground who can raise the same before the trial Judge at the time when the above issue that whether the applicant has committed the offence in his private or official capacity is adjudicated. (ZB) Application accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 799 [ Bahawalpur Bench] Present: MUHAMMAD NASEEM, J. MUHAMMAD AZAM-Petitioner versus STATE-Respondent Cr. Misc. No. 380-B of 1995/BWP admitted on 2.7.1995. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 497 read with Ss. 420/468/471/380 PPC--Bail--Sections 468/471 PPC are non-cognizable-Police have not obtained any warrant from Area Magistrate to register case--An offence under Section 420 PPC is bailable, whereas Section 380 PPC is not attracted due to alleged act of petitioner about removal of documents-It is admitted fact that case stands registered after institution of suit for specific performance of agreement of sale by petitioner-Civil court has better footing for determination of disputed property-Held: Case has been taken to police to put pressure upon petitioner-Bail allowed. ' [P. 800] A 1991 P. Cr. L. J. 2418 Lahore ref. Malik M.H. Zafar Hussain, Advocate, for Petitioner. Mr. M.A. Hameed, Advocate, for State. Mr. Mumtaz Hussain Bazmi, Advocate, for Complainant. Date of hearing: 2.7.1995. judgment F.I.R. No. 7 dated 6.1.1995 stands registered at Police Station City Bahawalnagar under Sections 420/468/471/380 P.P.C. at the instance of Mst. Noor Jahan who alleged that Muhammad Azam petitioner-accused alongwith Muhammad Rafique, Qasim Ali and Muhammad Ali entered into an agreement of sale with her for the purchase of land in consideration for Rs. 500 ,OOO /- (Five lac) on 2.5.1994. She alongwith her many relatives went to civil courts Bahawalnagar. Muhammad Anwar Petition-Writer executed the agreement and an amount of Rs. 108,000/- was to be paid in ca^ii while Rs. 50,000/- were to be paid by cheque at the request of the petitioneraccused and his co-accused. The cash amount and cheque were to be handed over immediately. She signed the document. However, thereafter immediately the accused took away agreement of sale as well as cheque and also did not pay the cash amount. Afterwards on the order of the Magistrate 1st Class concerned the Bank authorities reported that the petitioner was not maintaining P.L.S, Account No. 36 with the bank. This petitioner has been arrested whose bail plea has been rejected by the lower Courts mainly on the ground that there is allegation of forgeiy against the petitioner and his co-accused. He has filed this petition for his admission to bail. 2. At this stage I would express that a notice for contempt of Court was issued to Liaqat Hayat ASI Police Station City Bahawalnagar as he did not produce the file on 18.6.1995 even though he was present in the court on 13.6.1995. He has tendered the apology and the same is accepted with the advice to be careful in future. 3. I have heard the learned counsel for the petitioner as well as learned counsel for the State and gone through the record before me. I am in full agreement with the learned counsel for the petitioner that Section 380 PPC is not attracted to the instant matter due to the alleged act of the petitioner and his co-accused about the removal of the documents. Sections 468/471 PPC are non-cognizable. The Police have not obtained any warrants or permission from the Area Magistrate to register or investigate the case under these Sections. An offence under Section 420 PPC is cognizable but is bailable. Thus this bail application is to be accepted. Reliance is placed upon Ghulam Qasim alias Muhammad Qasim and another vs. The State (1991 P.Cr.L.J. 2418 Lahore ) while expressing this view. Keeping in view the admitted fact that the case stands registered after the institution of the suit for specific performance of agreement of sale by Muhammad Azam petitioner and his co-accused obviously and legally the civil court has better footing for the determination of the dispute revolving around the alleged status and character of the parties to the disputed property. Without prejudice I am tempted to express that the case has been taken to the police to put the pressure upon the adverse party which i.e. the plaintiffs of the suit for specific performance of agreement of sale. In the circumstances I do not agree with the learned counsel for the complainant as well as the learned counsel for the State that it is not a fit case for the admission of the petitioner to bail. 4. Considering it to be a fit case I admit Muhammad Azam petitioner to bail in the sum of Rs. 20,000/- (Rupees Twenty Thousand only) with one surety in the like amount to the satisfaction of the Area Magistrate Bahawalnagar. (MYFK) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 801 [ Multan Bench] Present: SYED ZAHID HUSSAIN BOKHARI, J. Syed MUHAMMAD NADEEM ABBAS-Petitioner versus STATE-Respondent Criminal Misc. No. 246-B-1996 decided on 12.2.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 498-Offence of Zina (Enforcement, of Hudood) Ordinance--(VII of 1979), S. 10(3)(2)-Interim pre-arrest bail-Grant of-Court while admitting Pre-arrest bail application, fixing it for regular hearing after 21 days declined to grant interim pre-arrest bail—Held: Trial court erred declining to grant interim bail after admitting the application for bail before arrest for regular hearing-On scrutiny of application if the court was not satisfied about merits it should have rejected it instantly, or the matter should have been fixed at the earliest possible date, because in cases of bail before arrest the accused should not be permitted to remain at large for a long period and the "sword of democle" should not be kept hanging on the petitioner's head for a long time, especially when the interim bail is refused-However, ad-interim bail was granted to enable the petitioner to move Session Court. [Pp. 802 & 803] C,D,E (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 498-Pre-arrest bail-Object of--The very purpose of grant of pre-arrest bail is to avoid the humiliation of being arrested by police-Grant of bail before arrest is rare but the courts do grant bail where it is felt that the petitioner has probably been falsely involved in the case and is likely to suffer irreparable injury to his dignity, respect and reputation. [P. 802] A (iii) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 498-Pre-arrest interim bail-Grant of-Once an application for bail before arrest is admitted by a court for regular hearing, it should be, in the fitness of things, to grant interim bail to the petitioner so that he is not arrested meanwhile because otherwise there will be no fun in entertaining and admitting the application. [P. 802] B PLD 1974 Lah. 493 and 1970 P.Cr.L.J. 188 rel. Malik Muntazir Mehdi, Advocate, for the Petitioner. Date of hearing: 12.2.1996. order Petitioner Syed Nadeem Abbas sought interim pre-arrest bail till such time the matter is finally heard and disposed of by learned Addl. Sessions Judge, Multan on 22.2.1996, in Case FIR No. 389/95 dated 28.11.1995, P.S. Gulgashat, Multan offence under section 10(3)(2), Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979. The petitioner was granted interim pre-arrest bail by the learned Addl. Sessions Judge, Multan. The petition was dismissed on 6.2.1996 on account of absence of the petitioner from the Court. 2. It is submitted that absence of the petitioner at the time of hearing on 6.2.1996 Was not intentional or wilful but as a matter of fact the petitioner had to go to the toilet to meet the call of nature. 3. Subsequently an other petition for grant of pre-arrest bail was moved on 7.2.1996 before the learned Sessions Judge, Multan which was entrusted to the same learned Addl. Sessions Judge, and the learned Addl. Sessions Judge admitted the petition to hearing and issued notice to the State for 28.2.1996. According to the learned petitioner's counsel the interim pre-arrest bail was not granted by the Court. Being aggrieved, this petition has been filed. 4. Learned petitioner's counsel contended that the very purpose of application for bail before arrest is defeated if the interim bail is not granted, as the petitioner is likely to be arrested by the police before the next date of hearing. 5. There is much force in the contention of the learned counsel. The very purpose of the application for grant of pre-arrest bail is to avoid the humiliation of being arrested by the police. The grant of bail before arrest is rare but the courts do grant bail before arrest where it is felt that the petitioner has probably been falsely involved in a case and is likely to suffer irreparable injury to his dignity, .respect and reputation. As such once an I application for bail before arrest is admitted by a court for regular hearing, it should, in fitness of things, grant interim bail to the petitioner so that he is B not arrested in the meanwhile, because otherwise there is no fun in entertaining and admitting the application. Reliance is placed on PLD 1974 Lahore 493 and 1970 P.Cr.L.J. 188. 6. I am of considered view that the learned Addl. Sessions Judge has erred in not granting interim bail to the petitioner, after admitting his application for regular hearing. The learned Addl. Sessions Judge on (| scrutiny of the application, if was not satisfied about its merits, should have rejected the petition instantly so that the applicant can seek his remedy in the Superior Courts without any let or hindrance. 7. It is strange enough that the learned Addl. Sessions Judge after declining the grant of bail to the petitioner, fixed the petition for regular hearing after about 21 days. In such cases, the matter should have been fixed for final hearing at the earliest possible date, because in cases of bail before arrest the accused persons should not be permitted to remain at large for a long period and the "sword of damocles" should not be kept hanging on the petitioner's head for a long period, especially when the interim bail is not granted. For what has been stated above, I grant interim pre-arrest bail to the petitioner till 28.2.1996 provided he furnishes bail bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned Addl. Sessions Judge who is seized of the matter. The bail petition stands disposed of. (MAA) Ad-interim bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 803 Present: AHMAD SAEED awan, J. SULEMAN-Petitioner versus FATEH NASEEB and others-Respondents. Criminal Revision No. 441/1994 accepted on 17.4.1995. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- -—S. 156~Re-investigation-There is no statutory prohibition in Criminal Procedure Code for police nor any bar can be imposed upon them relating to investigation-Police can investigate a case as many times as they choose even has ample powers to withdraw challan and submit a fresh one. [P. 806] A . PLD 1965 (W.P.) Lah. 734, AIR 1963 Pat. 268, 1972 SCMR 335, PLD 1987 SC 13, 48 Cr.L.J. 774 and 1972 SCMR 33 rel. (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 173-Cancellation of challan-Once police submits final report (challan) 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 inquiry or trial as case may be-Court has no power to delete the offence but is bound to proceed with case. [Pp. 806 & 807] B & D 1993 MLD 2402,1995 P.Cr.LJ. 313 ref. (iii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 156—Defective, Irregular and illegal investigation~Any defect, irregularity or illegality in the investigation would not vitiate trial unless it is shown to have prejudiced accused in any manner and similarly no objection regarding any flaw in investigation or trial Court prevail at appellate or revisional stage unless it is proved to have brought about a miscarriage of justice or occasioned a failure of justice. [P. 807] C 1995 P.Cr.L.J. 313 ref. (iv) Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 439 read with Ss. 440, 447, 452, 336, 148 & 149 Pakistan Penal Code, 1860 and Offences Against Property (Enforcement of Hudood) Ord., 1979, S. 17--Petition filed under Section 561-A Cr. P. C. as prayed later was allowed to be converted into revision petition-Contention, on application under section 265-K, Additional Sessions Judge deleted the offence under section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and remanded the case to Illaqa Magistrate for trial-The said offence was included by a DSP Crime Branch after conducting investigation under directions of High Court-Held: Police was competent to re-investigate case and submit a challan-Additional Sessions Judge had erred in deleting offence under Section 17 (6) 79 remanding the case to Magistrate-Consequently impugned order was set aside and Additional Sessions Judge was directed to proceed with case according to law. [P. 807] E PLD 1965 (W.P.) Lah. 734, AIR 1963 Pat. 268, 1972 SCMR 33, 1993 MLD 2402, 1972 SCMR 335, 1995 P.Cr.L.J. 313, PLD 1987 SC 13, 48 P.Cr.L.J. 774 ref. Mr. Abid Saqi, Advocate for the Petitioner. Mr. Abdul Baqi, Advocate for the Respondents. Mr. Muhammad Mansha, A.S.I. Date of hearing: 4.4.1995. judgment The petitioner under Section 561-A, Cr.P.C. sought setting aside the order dated 3.2.1994 passed by the learned Additional Sessions Judge, Kasur while exercising the jurisdiction under Section 265-K Cr. P. C. deleted the added offence under Section 17(6)79 and remanded the case to the Illaqa Magistrate for trial. The petitioner, later on prayed that the petition under Section 561-A Cr.P.C. be allowed to be converted into revision petition as the impugned order dated 3.2.1994 passed under Section 265-K Cr.P.C. by the Additional Sessions Judge could be challenged under Section 439 of the Cr.P.C. which was allowed and converted into the present petition vide order dated 11.10.1994 by the learned Judge Mr. Justice Mian Nazir Akhtar. 2. Briefly, facts of the case are that case F.I.R. No. 210/87 dated 12.8.1987 Police Station Raiwind District Kasur registered against the respondents No. 1 to 23 under Sections 440, 447, 452, 336, 148, 149 P.P.C. and 14(6) 79 and later on 17(6)79 offence was added. 3. The petitioner being aggrieved and dissatisfied with the investigation, filed Writ Petition No. 3585/87 in which direction was given to Crime Branch for honest and impartial investigation vide order dated 29.10.1988. 4. That, during investigation of the case accused-respondents were acquitted by the Illaqa Magistrate under Section 249-A, Cr.P.C. on 14.9.1988. The petitioner assailed acquittal order passed by the learned niaqa Magistrate by filing a Writ Petition No. 594/89 in which the petitioner was advised to file revision petition against the acquittal order, hence on 3.2.1990 the learned Additional Sessions Judge, Kasur in revision petition ordered further recording of evidence. The petitioner iled another Writ etition No. 1614/90 for the obtaining fresh order from the High Court for investigation as previously directed in Writ Petition No. 3585 of 1987 on 29.10.1988. On 12.3.1990 Writ Petition No. 1614/90 a direction was issued to he Crimes Branch for completion of investigation within two months. In compliance to the order in Writ Petition No. 3585/87 and Writ Petition No. 1614/90 13.S.P, Crimes Branch investigated the matter and submitted the challan under Sections 440, 447, 336, 452, 149, 354 P.P.C. and further added the offence under Section 17(6)79 instead of Section 14(6)79. The investigation conducted by the said D.S.P was also confirmed by the. Inspector General of Police, Punjab. 5. The challan was referred to the learned Additional Sessions Judge, Kasur, but after some time respondents No. 1 to 23 filed Writ Petition No. 3584/90 for quashment of the investigation conducted by the D.S.P, Crimes Branch whereas the same respondents filed another Writ Petition No. 3585/90 for quashing of remand order passed by the learned Additional Sessions Judge vide his order dated 3.2.1990. On 17.11.90 in the said writ petitions the remand order passed by the learned Additional Sessions Judge was upheld. 6. After the dismissal of the above mentioned writ petitions challan under the amended Section 17(6)79 alongwith remaining section was submitted in the Court of learned Additional Sessions Judge, Kasur who took the cognizance of the supplementary challan. The respondents again filed Cii. Misc. No. 114/Q/92 for the quashment of supplementary challan which was disposed of on 25.7.1992 as withdrawn with the permission to file application under Section 265-K Cr. P. C. before the learned Additional Sessions Judge, Kasur. 7. The respondents thereafter filed an application under Section 265-K Cr. P. C. which was accepted and offence under Section 17(6)79 was deleted and the case was remanded to the Dlaqa Magistrate, hence this petition. 8. I have heard the arguments of learned counsel of both the sides at length and have gone through the record with their able assistance. 9. The question arising out of the writ petition is whether the police is authorised to re-investigate the case after submission of challan and whether the learned Additional Sessions Judge was justified in deleting the offence under Section 17(6)79 without recording the evidence of the petitioner. It was held in case Atta Muhammad vs. Inspector-General of Police, West Pakistan, Lahore and others (P.L.D. 1965 (W.P.) Lahore 734) that there is no statutory prohibition or bar in the Criminal Procedure Code for the police to the investigation by the police after the submission of final report under Section 173 Cr. P. C., nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case. Similarly, it was held in case Raghunath Sharma and others vs. The State (A.I.R. 1963 Pat. 268):- "The Superintendent of Police, who is an officer superior in rank to the Officer Incharge of the Police Station, as the authority to direct the submission of a charge sheet when the Officer Incharge of the P.S. has already submitted the final report under Section 173 Cr.P.C.; and a Magistrate is competent to take cognizance of an offence on the basis of such a charge sheet. There is no bar to the investigation by the police after the submission of a final report under Section 173 Cr.P.C." 10. Considering the case from all angles, I am of the view that there is no statutory prohibition or bar in the Code of Criminal Procedure for the police to the investigation by the police nor any bar can be imposed upon the police to investigate a case as may times as they choose even has ample power to withdraw the Challan and submit a fresh challan. It was held by their Lordships in case Muhammad Akbar vs. The State and another (1972 S.C.M.R. 335) as under:- "That there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one, either on his own initiative or on the direction of the superior police officer. 1. It is 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 inquiiy or trial, as the case may be as it was held in case Murid Hussain vs. The Stat and another (1993 M.L.D. 2402 F.S.C.). In case Muhammad Ashraf Khan Tareen vs. The State (1995 P.Cr.L.J. 313) the learned Judges after discussing the issue at length observed that "any defect, irregularity or even illegality in the investigation would not vitiate the trial unless it is shown to have prejudiced the accused in any manner and similarly no objection regarding any flaw in the investigation or trial can prevail at appellate or revisional stage unless it is proved to have brought about miscarriage of justice or occasioned a failure of justice." 12. As for the first point raised by the learned counsel is well settled by the Supreme Court of Pakistan in case Aftab Ahmad vs. Hassan Arshad and 10 others (1987 P.S.C. 11) wherein it has been held that" the law on the first point raised by the learned counsel is settled. The first case, coming to ur notice in which the previous law was also discussed is Muhammad Niwaz vs. The Crown (48 Cr.L. J. 774) wherein a Division Bench of the Lahore High Court held that the number of investigations into a crime by a police officer is not limited by law and when one has ben completed, another may be begun on further information received. And this was also possible even after the submission of the challan report, when the Court has already taken cognizance of the case. This Court also in Muhammad Akbar vs. The State and another (1972 S.C.M.R. 33) held that there is nothing in the Code of Criminal Procedure to prevent the Investigating Officer from submitting a subsequent report in supersession of his earlier one either on his own initiative or on the direction of the superior police officer." 13. So far as the second issue is concerned as held in case Murid Hussain vs. The State and another (1993 M.L.D. 2402 F.S.C.) a Court has no power to delete offence but is bound to proceed in accordance with law by initiating proceedings of the case as there is no incriminating material and PWs had not appeared and made their depositions before the Court. Unless and until the PWs appear and make their statements before the Court and a full-fledged trial is conducted and on the basis of such evidence the Court could deleted a section or convict a person or discharge him. 14. In the present case in hand, there is sufficient evidence on the record as after the investigation the section was added and the Court itself cannot delete it. I am of the opinipn that the police is competent to reinvestigate the case and to submit challan. The learned Additional Sessions Judge has erred in deleting the offence under Section 17(6)79 and remanding the case for trial; consequently the petition is accepted and the learned Additional Sessions Judge, Kasur is directed to proceed with the case in accordance with law. (MAA) Petition accepted.-

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 808 Present: ahmad saeed awan, J. MUHAMMAD SHAHEEN TARIQ--Appellants versus STATE-Respondent Criminal Appeal No. 302-89 accepted on 24.4.1995. (i) Pakistan Penal Code 1860 (Act XLV of 1860)-- —Ss. 409/34-Conviction-Challenge to-Material discrepencies in state­ ments of Raiding Magistrate and prosecution witnesses,, rather they support defence version-Trial Court not placing case in justa position as the paramount duty of eveiy Court is to separate grain from chaff in a careful manner and scrupulous analysis and if that is not possible; must give benefit of it to accused lest innocent be convicted-Sentence based on surmises, conjectures and suspicion was set aside. [Pp. 810 & 811] A, B, E,H (ii) Pakistan Penal Code 1860 (Act XLV of 1860)-- —S. 409--Proving charge of criminal breach of trust-To establish a charge of criminal breach of trust, prosecution must prove not only entrustment of or dominion over property but also that accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. [P. 811] C PLD 1956 SC (Pak.) 417 and 1980 SCMR 402 ref. (iii) Pakistan Penal Code 1860 (Act XLV of 1860)-- —409-/34~Circumstantial evidence-In order to base conviction on circumstantial evidence, it must be such as to be wholly incomputable with innocence of accused, and should be of such conclusive nature as to exclude eveiy hypothesis except the one proposed to be proved. [P. 811] D (iv) Pakistan Penal Code 1860 (Act XLV of 1860)-- —S. 409/34-Appreciation of evidence-Suspicion by itself, however, strong it may be; is not sufficient to take place of proof and warrant a finding of guilt of accused. [P. 811] F (v) Criminal Trial- —It is settled principle of criminal jurisprudence that prosecution has to succeed on its own merits and has to prove case against accused beyond reasonable doubt and every doubt is to be resolved in favour of accused. IP- 811] G Sardar Muhammad LatifKhan Khosa, Advocate, for the Appellant. Malik Muhammad Aslam, Advocate for the State. Date of hearing: 24.4.1995. judgment Muhammad Shaheen Tariq, Javaid Akhtar and Ahmad Shujjah have filed respectively Criminal Appeal Nos. 302/89, 284/89 and 356/89 against the judgment dated 15.4.1989 passed by the Special Judge, Anti- Corruption, Sargodha under Sections 409/34 P.P.C; whereby the accused/ appellants have been convicted under Sections 409/34 P.P.C. and sentenced to two years R.I. and a fine of Rs. 25,000/- each; in default of payment of fine further to undergo six months R.I. All the three criminal appeals arise out of the same occurrence and have been convicted and sentenced by the same judgment; hence the appeals will stand disposed of jointly by this order. 2. Briefly the facts of the case are that a technical raid was to be conducted by Anti-Corruption Establishment, Faisalabad Region Faisalabad and on 21.1.1986 Hamid Nawaz (PW-4) Assistant Director/ACE Faisalabad gave an application Ex. PA to the Additional Deputy Commissioner Sargodha for deputing a Magistrate to supervise the raid. Mian Maqbool Ahmad (PW-1) then MIC was deputed to conduct the raid. Hamid Nawaz (PW-1), Zahoorul Hassan Farooqi (PW-6), Malik Tilla Muhammad (PW-5) of the ACE went to Mian Maqbool Ahmad (PW-1) and informed him that raid is to be conducted at Asianwala P.R. Centre. In the official vehicle the raid party went to the Centre where accused Muhammad Shaheen Tariq, Food Inspector and Javaid Supervisor and deceased Malik Ahmad Sher Assistant Food Controller were present. The record of the stock of wheat was sought and deceased Ahmad Sher Assistant Food Controller produced the record comprising registers Ex. PD/1, Ex. PD/2, Ex. PD/3, Ex. PD/4 and Ex. PD/5 and these were secured vide memo. Ex. PE. The deceased accused Ahmad Sher pointed out that the stock of wheat purchased during 1983 and 1984. The godown was opened. Large number of bags of wheat were lying and wheat was also lying in bulk in open. The labour was not available. The godown was sealed and the raid party again visited the godown on 22.1.1986, 23.1.1986 and 26.1.1986. During these days the wheat was filled in bags and according to the record there should have been 7461 wheat bags in the stock and on counting in the presence of all accused and Deputy Director Food, it was discovered that number of wheat bags in stock was 7132. Thus there was shortage of 329 bags of wheat. 16 bags of wheat were weighed at random and average weight was found to be 95.281 K.g. per bag. Hamid Nawaz (PW- 1) then submitted his report Ex. PC in which he determined the shortage of 36719 K.g. of wheat. On the basis of this report Ex. PC, formal F.I.R. Ex. PC/1 was recorded by Ashiq Hussain ASI (PW-2). After necessary investigation, the sanction orders Ex. PE, Ex. PF and Ex. PG were obtained and the challan was submitted in the Court on 31.5.1986. 3. The prosecution examined as many as 6 witnesses to prove its version while appellants/accused produced in their defence two witnesses. 4. The prosecution witnesses Maqbool Ahmad Magistrate 1st Class; Ashiq Hussain A.S.I.; Miraj Din Deputy Director Food, Hamid Nawaz Assistant Director ACE; Malik Tilla Muhammad and Zahoor-ul-Hassan Farooqi in their statements supported the prosecution version with one voice. 5. All the accused/appellants in their statements admitted that they were responsible for keeping the stock of wheat at th.e centre but denied the allegation of misappropriation. The main defence of the accused/appellant is that the stock of wheat remained in open space for 3 years and due to natural causes; the weighing wheat was reduced and no misappropriation was committed by any of the accused. The defence witnesses being official of the department have fully supported the defence version of the appellants/accused. 6. I have heard the arguments of learned counsel of both the parties at length and have perused the record with their able assistance. 7. Admittedly, the accused/appellants were responsible for keeping the stock of the wheat at the centre; in their presence the members of raiding party counted the bags of wheat and shortage of 329 bags of wheat was detected. Admittedly District Food Controller through report Ex. PJ recommended the case for shortage; wherein percentage of shortage was shown as 0.34 percent to be written off. 8. There are material discrepancies in the statements of PW-1 Maqbool Ahmad, Magistrate 1st Class and PW-3 Miraj Din, Deputy Director which are fatal to the prosecution version rather the aforementioned witnesses have supported the version of accused/appellants. Sheikh Hamid Nawaz PW-4 admitted in cross-examination that all the bags of the wheat were not weighed and it is not possible to give exact finding as to the quantity of wheat which was short because out of 7132 bags only 16 bags were weighed. In cross-examination the Assistant Director PW conceded that Ex. PJ was written by the District Food Controller wherein he recommended for writing of the shortage from the Finance Department 9. The learned trial Judge while convicting the accused/appellants observed firstly that the Department has not so far written of the godown shortage regarding the wheat in the charge of the accused; secondly it is not necessary that in every case the margin of 0.5 per cent is given for godown losses; thirdly no steps were taken after raid by any of the accused to get written of the loss detected by the raiding party; as it was the duty of the accused to have taken up the matter immediately after the raid with the Department. 10. The learned trial Judge did not place the case in juxtaposition as the paramount duty of every Court is to separate the grain from the chaff in a careful manner and scrupulous analysis and if that is not possible; must give benefit of it to the accused lest the innocent be convicted. The learned trial Judge convicted the appellants merely on the circumstantial evidence as there is nothing on record to prove the case of embezzlement directly, as laid down in case Shakir Hussain vs. The State (P.L.D. 1956 S.C. (Pak.) 417) and in case Nadir Shah vs. The State (1980 S.C.M.R. 402) that in order to establish a charge of criminal breach of trust, the prosecution must prove not only entrustment of or dominion over property but also that the accused either dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. As lready observed nothing has been brought on the record that the wheat in dispute has been misappropriated by the appellant/accused. 11. It is well settled that circumstantial evidence, if made the basis for conviction, must be such as to be wholly incomputable with the innocence of the accused, and should be of such conclusive nature as to exclude every hypothesis except the one proposed to be proved. 12. As the sentence passed by the learned Special Judge is based on surmises, conjectures and suspicion; it is well settled principle that suspicion by itself, however, strong it may be is not sufficient to take place of proof and warrant a finding of guilt of the accused. It is also settled principle of criminal jurisprudence that prosecution has to succeed on its own merits and has to prove the case against accused beyond reasonable doubt and every doubt is to be resolved in favour of the accused. 13. Taking into consideration the evidence on record there is nothing in the statements of prosecution witnesses that the accused have misappropriated the wheat and the observation of the learned trial Judge that efforts were not made by the appellants for writing of loss by the Department as it was their duly is misconceived. 14. In view of the above discussion, I am of the view that the prosecution has failed to prove its case beyond any shadow of doubt; hence the sentence and conviction of the appellants is set aside; since the appellants are on bail, their bail bonds stand discharged. The appeals are accepted accordingly. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 817 [Multan Bench] Present: rana muhammad arshad, J. altaf'hussain etc.-Appeiiants versus STATE-Respondent Criminal Appeal No. 91/1993 accepted on 12.2.1995. Pakistan Penal Code, 1860 (Act XLV of I860)- —S. 302-Conviction--Challenge to-Motive not proved-Immediate cause of death shrouded in mystry~Medical evidence contradicts prosecution story as disclosed in FIR, and in statements of prosecution witnesses-No blood stained earth on spot-No crime empty was found present at place of occurrence, hence recovery of firearm at the instance of accused cannot be used as corroborative evidence—Prosecution witnesses closely related to deceased and appellant but having animosity against appellant-Eye­ witnesses making deliberate improvements in order to bring their evidence in line with Medical evidence—Dark night occurrence- Identification doubtful-Prosecution miserably failed to prove its case- Appellant was acquitted giving benefit of doubt. [Pp. 822, 823 & 824] B, C, D, E, F, G, & J Motive- —-S. 302--0nee motive is alleged it must be proved through reliable evidence. [P. 822] A Criminal trial- -—Mere mention of names in F.I.R. does not constitute corroboration of ocular evidence against accused persons-Rule of prudence requires that discrepant and untrustworthy evidence should not be believed qua appellant particularly when evidence has been disbelieved by the trial Court qua accused persons. [Pp. 823 & 824] H, I, Mr. AsifMahmood Chughtai, Advocate, for Appellant. Malik Ghulam Hussain, Advocate, for State. Date of hearing: 24.1.1995. judgment Altaf Hussain, Riaz, Muhammad Afzal and Ashraf were sent up to face the trial for causing the murder ofMst. Shamim Akhtar, aged 30 years, in case FIR No. 289/90 dated 24.8.1990, under section 302/34 PPC registered with police station Haveli, Tehsil Depalpur at the instance of Subah Sadiq, for an occurrence which took place on 24.8.1990 at 2.00 a.m. in the Behni Dakhli of the complainant within the area of Mouza Mathelo Dona situated at a distance of 18-KM from the police station Haveli. The learned Additional Sessions Judge, Depalpur vide judgment dated 31.1.1993 convicted the appellants under section 302/34 PPC and sentenced them to life imprisonment with a fine of Rs. 10,000/- each in default whereof to further undergo two years R.I. It was directed that if the fine is recovered, the same shall be paid to the legal heirs of the deceased whereas, Riaz Hussain and Muhammad Afzal were acquitted by giving them the benefit of doubt. The benefit of section 382-B Cr.P.C. was also extended to the appellants. 2. The appellants have assailed the judgment through this appeal. 3. The prosecution story in brief, as disclosed in the FIR Ex. PD, was to the effect that on the night between 23/24.8.1990, Subah Sadiq, resident of Ruperwali Behni, Dakhli Mauza Mathelo Dona, woke up on the noise and saw Altaf Hussain, armed with "dang", in the light of electric bulb, standing very close to his cot who pressed him with his "dang" against the bed. Bashir, his servant whose cot was also along side him, met with the similar treatment by Muhammad Afzal, armed with "dang". Riaz Hussain and Muhammad Ashraf were also seen while standing near the cot of Mst. Shamim Akhtar, his daughter. The complainant raised alarm and within his view Muhammad Ashraf and Riaz Hussain armed with .12 bore pistols fired one shot each on Mst. Shamim Akhtar hitting on her chest, while she was sleeping. The occurrence was witnessed by aforesaid Bashir Mst. Amtal Begum and Mst. Nawab Begum, who were also sleeping in the same courtyard. Since his Behni was situated at a considerable distance from Mouza so on his hue and cry nobody could attract the place of occurrence. 4. The motive behind the occurrence as narrated was the Mst. Shamim Akhtar deceased was married to Altaf Hussain accused 10 years back. Due to strained relations she had deserted her husband and had been living with her father for the last about eight years. Since the complainant has no male issue, therefore, Ghulam Qadir and Niaz Ahmed, real brothers inter-se, father and real Uncle of Altaf and Ashraf accused/appellants respectively, wanted Subah Sadiq to transfer his land to his real brothers. Mst. Shamim Akhtar had been opposing it, resultantly it had led to her murder at the hands of present appellants and acquitted accused persons. 5. After recording the FIR, Ext. PD, Muhammad Khaliq, S.I/SHO assumed the investigation and proceeded to the place of occurrence, where he prepared injury statement Ext. PF and inquest report Ext. P.G. He handed over the dead body of Mst. Shamim Akhtar to Lai Khan constable for taking the same to the mortuary at Depalpur and after having conducted the postmortem the said constable had produced the last worn clothes of the deceased, shirt P. 1, Shalwar, P. 5 and banyan P. 6 which were secured vide emo Ex. PC. He secured blood-stained chaddar P. 1, Pillow P. 3 and Matress P. 2 vide Memo Ex. PA and Ex. PB respectively. The statements of the witnesses were also recorded under Section 161 Cr.P.C. on the same day. Altaf was arrested by him on 3.10.1990, and pistol P. 7 was recovered from him and was taken into possession vide Memo Ex. PH. Muhammad Afzal, Riaz Hussain and Muhammad Ashraf were arrested on 18.1.1992 by Faqir Hussain, S.I. PW. 7. 6. On the accomplishment of usual investigation, challan was submitted only against Altaf Hussain. Feeling aggrieved, the complainant of the case filed a private criminal complaint titled Subah Sadiq vs. Altaf ussain etc. He reiterated his version given in the FIR. The learned trial court had also summoned the remaining three accused who were named in the FIR and were not challaned by the police on the basis of preliminary evidence recorded by the court. Meanwhile, a supplementary challan was also submitted which was prepared on the basis of investigation conducted D.S.P. Range Crime Lahore in which all the four accused were challaned. The challan case previously submitted, private complaint and subsequent challan were ordered to be consolidated by the learned trial court. The formal charge was framed against the accused persons who refuted the charge and claimed trial. The prosecution evidence was summoned thereafter. 7. The prosecution, in order to substantiate its case, produced eight witnesses in all. Subah Saidq complainant as PW. 1 supported the FIR and gave the ocular account. He also signed the recovery Memo Ext. PA, PB and PC prepared by the Investigating Officer on 24.8.1990 while taking into possession last worn clothes of the deceased, blood-stained matress and a pillow from the cot of the deceased. Mst. Amtal Begum (PW. 2) also gave ocular account of the occurrence. Bashir Ahmed and Mst. Nawab Bibi were given up as being unnecessary. Muhammad Hassan, Muhammad Zaman son of Noor Samand and Muhammad Zaman son of Faiz were given up having been won over. The postmortem of the body of the deceased was conducted by Dr. Muhammad Afzal, PW. 3, who was posted as M.S. THQ Hospital Depalpur. He found the following injuries on her body:- 1. A firearm wound 3^ cm X 2^ cm on the front of left chest about 3% cm inner to middle of right nipple between 2-3 O'clock position. Margins of the wound were irregular and inverted with black staining of gun powder around the injury in 8 cm x 5 cm area. The wound was going deep down wards and backward direction more toward the left side. 2. Multiple small irregular abrasions and cuts on the front of chest between the two breasts from mid line to right side in 8 cm x 6 cm area as result of broken pieces of a glass vial found in the brazzier. Word 'Voicroy' made could be made to read on broken glass pieces. 3. A bruised area 4 cm x 4 cm on the outer aspect of lower part of left chest close to rib margin and a hard foreign body (pellet) was palpable in its centre where bruise was darker. 4. A bruised area 10 cm x c on the outer aspect and front of eft flank with two darkish area where pellets were palpable under each and shown in the diagrame. 5. A triangular brusied area 5 cm X 1\ cm area on the outer aspect of left hip and upper and outer part of buttock where one pellet was palpable under skin. 6. An irregular bruised area just above left groin and one darkish spot under which pellet was palpable. The measurement of the area was 5 cm x Z\ cm. 7. A fire arm wound 5 cm diameter on the front and lower part of left abdomen in front of injury and lower part of left abdomen in front of injury and lower part of left abdomen in front of injury No. 6 with everted margins and bruised area around. .n his opinion, death had occurred due to shock and haemorrhage as a result )f injuries to the vital organs. Injury No. 1 was sufficient to cause death in

rdinary course of nature. Ghulam Sarwar ASI, (PW. 4) on 28.6.1990 •eceived a sealed parcel containing blood-stained earth from SHO which was ;ept in safe custody in Malkhana and was transmitted by him on 28.8.1990 o the office of Chemical Examiner. Abdul Khaliq, SI/SHO PW. 5 ivestigated the case and gave the details of his investigation. He submitted the incomplete challan against Altaf Hussain only. Farooq Ahmed PW. 6 proved the site plan PI and PI/1. Faqir Muhammad SI, PW. 7 arrested Muhammad Afzal, Riaz and Ashraf on the direction of Ch. Muhammad Hussain DSP Crime Range Lahore. The said DSP, PW. 8 stated that the investigation was entrusted to him under the order of the DIG Range Crime Lahore. After conducting the investigation thoroughly he found all the four accused persons involved in the above said crime and he directed the local police to prepare challan against all of them, named in the FIR, after effecting the recoveries of crime weapons. Muhammad Ishaque Sandhu DSP Crime Branch was given up as being unnecessary. 7. After submitting the report of the Chemical Examiner Ex. PJ and that of Serologist Ex. PK, the evidence of prosecution was closed. 8. On the conclusion of the prosecution evidence, the same was put to the accused persons and their statements were recorded under Section 342 Cr.P.C. They refuted the allegations levelled against them and total denial and false implication was pleaded by them. Muhammad Afzal, Riaz and Ashraf stated that they were found innocent during the investigation conducted by the local police. The same was verified by the DSP/SDPO Circle Depalpur. Altaf Hussain in answer to a question stated as follows:- "I am innocent. I have been falsely involved due to enmity. Mst. Shameem Akhtar deceased was of immoral character and I had kicked her out from my house due to her immorality long before the occurrence. She used to reside in village Daililkey and she had come to village Methela Dona only 2 days before the occurrence. She was murdered by some unknown culprit. It was a blind murder and due to this fact the complainant had been tracing the culprits by tracing tracks of the culprits with the help of the trackers. PWs have made false statements due to enmity. None of them was present at the time of occurrence in the Ihata. There was no electric supply in the village Methela Dona or in the Ihata of the complainant in those days." None of the accused person entered appearance to make a statement on oath under Section 340(2) Cr.P.C. in disproof of allegations levelled against them and no defence witness was produced in their favour. 8. Learned counsel for the appellants vigorously contended that it was a dark night occurrence and nobody had seen it; that the appellants have been falsely implicated and there is no such evidence against the appellants on the basis of which the conviction can be ordered. Learned counsel further argues that the trial could has believed the evidence qua the acquitted accused persons and on the same evidence qua the appellants had convicted them. This is an unseen murder and the appellants have no motive at all to cause the murder of Shamim Akhtar. 9. Conversely learned counsel for the State vehemently argued that the appellants have committed a heinous crime while killing a young lady. It is a cold-blooded murder and the evidence is very much on the record to prove their guilt. 10. Prosecution in order to prove its case has relied upon ocular account furnished by Subah Sadiq complainant and Mst. Amtal Begum PW. 1 and PW. 2 respectively and sought corroboration from the evidence of the motive; recovery and medical evidence. As far as the motive in the instant case is concerned it was that Ghulam Qadir and Niaz Ahmed father of Altaf and Ashraf respectively wanted the land of Subah Sadiq their real brother, who had no male issue, transferred in their name, and Shamim Akhtar deceased had been resisting to do so. Mst. Shamim had been deserted by her husband who had been living in her father's house for the last about eight years. Civil and criminal litigation was already going on between the parties for the last many years. In this view of the matter, no land could have been I got transferred by the father and Uncle of the appellant. Once the motive is 'I alleged, it must be proved through reliable evidence. The prosecution could I not bring on the file any independent evidence to establish the motive, so the prosecution has failed to prove the motive. The immediate cause of murder A of Mst. Shamim Akhtar had also not been proved which is shrouded in "> mystry. Even otherwise, Abdul Khaliq, PW.5 stated categorically that the murder of Mst. Shamim had taken place due to her immorality. 11. So far as the medical evidence is concerned, it contradicts the prosecution story as disclosed in the FIR and in the statement of the witnesses recorded u/s 161 Cr.P.C. prosecution case, at the initial stage, was that Muhammad Ashraf, Riaz Hussain, accused fired one shot each with their pistols. The fire of Ashraf had hit on the chest of the deceased whereas fire of Riaz Hussain had hit below the Umbilicus on the left side of the abdomen and in support of it, similar statement was made by Mst. Amtal PW. 2. On the other hand Dr. Afzal PW. 3 stated that there was only one entry wound on the dead body of the deceased. He very categorically opined that injury 3, 4, 5 & 6 were entry wounds. Further stated that injury No. 1 was the result of a shot and injury No. 7 was the exist wound of said injury, but some of the pellets remained in the body. He further opined that the assailants must have been on the head side when the injury No. 1 was caused. Therefore, the medical evidence instead of corroborating the ocular account contradicts it especially when PW. 6, Feroze Ahmed, Draftsman pointed out that two shots were fired from different sides. 12. Now coming to the question of recoveries, pistol P. 7 was recovered from Altaf vide Ext. PH dated 3.10.1990. Previously the role ascribed to Altaf was to the effect that he had a "dang" and had pressed the complainant against the cot on which he was sleeping. Muhammad Ashraf and Riaz fired shots sticking Mst. Shamim Akhtar deceased. Muhammad Afzal was also armed with "dang". During the investigation Muhammad Afzal, Ashraf, Riaz were declared innocent. The recovery of pistol P. 7 could be nothing except a false one. Abdul Khaliq, SI/SHO stated that no bloodstained earth was available at the spot and as such the same was not taken into possession. No crime empty was found present at the place of occurrence. In this view of the matter, the recoveiy of firearm at the instance of appellants cannot be used as corroborative piece of evidence. The recovery of pistol simplicitor cannot establish that it was used in the commission of crime. 13. So far as the ocular account is concerned, it was furnished by Subah Sadiq and Amtal Bibi PW. 1 & 2 respectively Subah Sadiq is the father of the deceased and Mst. Amtal PW is the real sister of Mst. Shamim deceased. Civil and criminal litigation was already pending in different courts. The eye-witnesses are close relations and are also inimical towards the appellants and interested witnesses. It is stated by the complainant that the accused were identified in the light of electric bulb whereas there was no electric supply available in that abadi at the relevant time. The eye-witnesses have attributed the role of firing to Ashraf and Riaz, who were found innocent during the investigation and no recoveiy as also affected from them. They were not even arrested by the police. Dr. Muhammad Afzal had found only one firearm injury and the same was not ascribed to appellant Altaf. Muhammad Hassan DSP Range Crime Lahore, PW. 8 categorically stated that Subah Sadiq had admitted before him during the investigation that they had been tracing the tracks of the culprits so as to find the real assailants. Had they been tracing out the tracks of the accused they would„ have not been sure about the assailants. 14. Keeping in view the circumstances as discussed above, the motive as alleged was not proved which has adversely affected the prosecution case as a whole. The nature and manner in which the deceased had sustained injuries suggest that the occurrence had not taken place in a manner as narrated by the prosecution. 15. It was unseen murder and the witnesses came to know after the murder had already taken place and the assailants had left the place of occurrence. This was a dark night occurrence and there was ample reason to mplicate the appellants falsely. A deliberate improvements in the testimony of the eye-witnesses" statements have been made to bring their evidence in line with the medical evidence. During the investigation, out of four persons named as accused in the FIR ascribing them specific role, Riaz, Ashraf and Afzal, were found innocent which indicates that the complainant had the tendency of involving innocent persons. 16. Mere mention of names in the FIR does not constitute corroboration of ocular evidence against accused persons. This type of evidence must be a very reliable, cogent, and corroborative and in the absence of it, the conviction would render unsafe especially when the accused had chosen the time of night to kill a person it would be against the natural conduct of the human being that first they will make a witnesses awoke up and then commit the crime. It is astonishing that on hue and cry all inmates of the house had awoken up hut the victim remained sleeping. The evidence adduced is not only discrepant but also untrustworthy to place reliance for conviction. The rule of prudence requires that this type of ocular evidence should not be believed qua the appellants particularly when the evidence has been disbelieved by the trial Court qua the acquitted accused persons. This evidence does not inspire confidence unless and until there is an independent corroboration of the prosecution version available on the record which is missing in this case, because I have been unable to find any corroboration which could have supported the ocular evidence. 17. In sequel to the above, the upshot is that due to infirmities pointed out above, the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt. 18. I, therefore, accept the appeal, set aside the conviction and sentence and acquit the appellants of the charge framed against them by giving the benefit of doubt. The appellants shall be released from the jail forthwith, if not required to be detained in any other case. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 830 [Multan Bench] Present: syed zahid hussain bokhari, J. MANZOOR-Petitioner versus STATE-Respondent Criminal Appeal No. 104 of 1986 returned on 16.10.1995. Offences of Zina (Enforcement of Hadood) Ordinance VII, 1979- —Ss. 10/11/18/20 read with Pakistan Penal Code S. 354- Zina-bil-jabr- Offence of~Conviction for-Challenge to-Appellate jurisdiction-Question of-If trial is held in Court of Sessions Judge for an offence falling in the ambit of this Act, appeal shall lie to Federal Shariat Court-Offence with which appellants are convicted is not important-Determining factor for appellate jurisdiction would be forum of trial. [P. 832] A & B Mr. Ch. Abdul Ghani, Advocate, for Appellants. Mr. Sh. Muhammad Rahim, Advocate, for Respondent. Date of hearing: 16.10.1995. judgment Manzoor and Kalu appellants through separate appeals have challenged their conviction. They were convicted under Section 354 PPC and sentenced to undergo R.I. for a period of one year each by learned Addl. Sessions Judge, Vehari vide his order dated 12.5.1986. As both the appeals arise out of the same judgment so I shall dispose of these two appeals by this single judgment. 2. Brief facts of the prosecution case are that Mst. Parveen alongwith her mother Mst. Aisha and Nazar s/o Hasan were returning to their houses on a cart after visiting the tomb of Sakhi Muhammad Yar situated within the area of chak No. 176 G.B. All of a sudden Kalu appellant armed with pistol, Manzoor appellant armed with sota and Khadim acquitted co-accused armed with sota, who were sitting ambush near the bridge of sukh bias drain, came out. Khadim co-accused of the appellants caught hold of companion of Mst. Parveen, i.e. Nazar P.W. Kalu appellant threatened Nazar PW and asked him to come down from the cart. Then both Manzoor and Kalu forced Mst. Parveen to accompany them. On her refusal she was dragged towards the fields and her shirt was torn by the accused. Her mother Mst. Aisha raised hue and cry. On hearing the alarm Anwar and Billu PWs were attracted. They also saw the occurrence. On arrival of Anwar and Billu PWs the accused ran away. Mst. Parveen approached the police alongwith her mother on 13.6.1985. Sefat Hussain SI met them near Adda. Bhikki More. Fard Bian Ex. PA on the statement of Mst. Parveen was recorded by him and he sent the same to P. .S. Saddar Vehari for registration of the case under section 354 PPC. FIR Exh. PA/1 was recorded by Muhammad Safdar H.C. on the basis of Fard Bian Exh. PA. 3. During investigation the offence under Suction 354 PPC was deleted and offence under Sections 10/18, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 was added. Consequently the challan was sent to the Court of learned Sessions Judge, Vehari. The trial was conducted in the Court of Ch. Abdul Sat as ASJ, Vehari who framed the charge under Section 11 of Offence of Zina (Enforcement of Hudood) Ordinance VII 1979. After recording the evidence of prosecution, vide impugned order and judgment dated 12.5.1986, he held that no offence under Section 11, 10/18 Offences of Zina (Enforcement of Hadood) Ordinance VII, 1979 was made out. The trial Court was of the opinion that Section 354 PPC was proved against Manzoor and Kalu accused. Khadim Hussain was acquitted by giving him benefit of doubt. Manzoor and Kalu were convicted under section 354 PPC and sentenced to R.I. for a period of one year each. Hence this appeal. 4. At the start of the arguments the learned counsel were asked if this Court has jurisdiction to hear the present appeals. The learned counsel for the State submitted that in view of Section 20 of the Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979, this Court has no jurisdiction to hear these appeals. Learned counsel for the appellants submitted that as the appellants have been convicted under Section 354 PPC, also the appeals shall lie to the High Court because the offence for which the appellants have been convicted is triable by a Magistrate 1st Class. 5. I have heard the learned counsel appearing on behalf of the appellants and the State and have gone through the record with care. Section 20 of Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 provides that the offence punishable under this Ordinance shall be triable by a Court of Sessions and not by a Magistrate authorised under Section 30 of the Code and the appeal from the order of the Court of Sessions shall lie to I the Federal Shariat Court." A bare perusal of this Section makes it crystal clear that if the trial is held in the court of Sessions Judge for an offence falling in the ambit of this Act, the appeal shall lie to the Federal Shariat Court. In this case the trial was conducted by a learned Addl. Sessions Judge, Vehari, who vide impugned order and judgment held that no offence under Articles 10/11/18/VII, 1979 was made out. Consequently he did not convict the appellants for these offences. Rather he drew the conclusion that offence under Section 354 PPC was made out from the evidence produced by the prosecution. I do not agree with the learned counsel for the appellants that as the offence for which the appellants were convicted, constitute the offence under Pakistan Penal Code, the appellate jurisdiction will automatically revert back to the High Court. The offence with which the appellants are convicted is not important. The determining factor for the appellate jurisdiction would be the forum of trial. The trial was held by a | Sessions Judge acting as a Qazi and a Session Judge will hold a trial for the offence which falls under Ordinance VII, 1979 is fully competent to punish the accused. Article 20 of Act VII also provides that "if it appears in evidence that the offender has committed a different offence under any other law, he may if the court is competent to try that offence and award punishment, therefore, be convicted and punished for that offence." I will not deal with the question, whether offence under Section 354 PPC was triable by a Sessions Judge or not because it will prejudice the case of the either side. 6. As discussed above, I have least doubt in my mind that the appeal against the impugned order and judgment would lie to the Federal Shariat Court which is also a special creature of the Constitution of Islamic Republic of Pakistan, 1973. It is note worthy that revisional jurisdiction in such like cases has also been conferred upon the Federal Shariat Court as provided under Article 203 DD of the Constitution. 7. Learned counsel further requested that I should take a lenient view and pass an order convicting the appellants for a period already undergone. I am afraid I cannot pass such order. This Court has no jurisdiction to hear the case or pass an order passed by a Sessions Judge or Addl. Sessions Judge while deciding a case under the Hudood Ordinance. Once this Court came to the conclusion that it has no jurisdiction to hear the present appeals, no further order touching the merits or quantum of punishment can be considered by this Court. For all these reasons the criminal appeals No. 104 of 1986 and 102 of 1986 are ordered to be returned to the appellants or their counsel to present the same before the competent Court, if so desired. 7. Both the appals are disposed of in the above terms. 8. The appellants are on bail. The bail orders are withdrawn. Nonbailable warrants of arrest of Manzoor and Kalu appellants are directed to be issued against them to be executed through the learned Sessions Judge, Vehari, immediately. He shall inform the Deputy Registrar (Judicial) of this Court about the execution of warrants within a period of one month of the receipt of warrants by him. (K.A.B.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 833 Present: ahmad saeed awan, J. ATIYA NASIR and another-Petitioners Versus S.H.O. POLICE STATION, BADNA and another-Respondents Writ Petition No. 2827/95 accepted on 6.4.1995. (i) Constitution of Pakistan, 1973-- -—Art. 199-Writ Jurisdiction-Writ jurisdiction is a judicial discretion and has to be exercised reasonably, fairly and properly-Proceedings under Article 199 of Constitution will he competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by Constitution or it violates some other Law or is motivated for mala fide reasons. [P. 836] B & C PLD 1987 SC 139,1989 P.CrX.J. 1921,1995 P.CrJLJ. 94, 1995 P.Cr.L.J. 401 ref. (ii) Muhammadan Law-- -—Contract of marriage-Proof of--In Islamic Law contract of marriage need not to be proved through a written document; If Nikah is not registered then either two witnesses can be produced in support of factum of Nikah or man and woman i.e. husband and wife may together certify factum of marriage. [P. 8336] A (iii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979-- —-S. 11 read with Pakistan Penal Code 1860, S. 109--Constitution of Islamic Republic of Pakistan 1973-Art. 199--Quashment of F.I.R.--Petitioner No. I/accused has admittedly contracted marriage with Petitioner No. 2/Coaccused two month prior to lodging F.I.R.~She (Petitioner 1) has openly contradicted version of F.I.R. by stating that she had married Petitioner No. 2/co-accused of her own accord and free will-Proceedings against petitioner No. 2/co-accused and his family members in their case will amount to un-necessary harassment--On such evidence petitioners and others cannot he convicted on charges levelled against them--F.I.R. quashed. [P. 837] D, E & G (iv) Offence of Zina (Enforcement of Hudood) Ordinance, 1979-- -—It is not intention of law that accused should necessarily be subjected to trial irrespective of fact that case is made out or not-The inference by this court in exercise of its extra-ordinary jurisdiction under Art. 199 cannot be refused merely case is under investigation as the whole purpose is to secure ends of justice; therefore, a person if facing ground less charge in criminal proceedings cannot be refused under Art. 199 as is privileged right of a citizen. [P. 837] F Ch. Naseer Ahmed Bhutta, Advocate, for Petitioners. M. Muhammad Hanif Khatana, Advocate, and Ch. Naseem Ahmad, Advocate, for Respondents. Mr. Khurshid Ahmad Sodi, Advocate, for Complainant. Date of hearing: 4.4.1995. judgment Ahmad Saeed Awan, J.-Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners seek, quashment of case F.I.R. No. 30 dated 14.2.1995 under Sections 11 of offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 109 P.P.C. registered with Police Station, Badana, Teshil Pasrur, District Sialkot being illegal and mala fide, without jurisdiction and abuse of process of law. 2. The brief facts of the case are that the petitioner No. 1 being sui juris entered into marriage with petitioner No. 2 on 12.12.1994 in accordance with Muslim rites and the Nikah Nama was duly registered with the Nikah Registrar. The father of the petitioner No. 1, respondent No. 2 felt annoyed and started pressurizing and threatening the spouses of dire consequences; ultimately got registered a case after a lapse of more than a period of two months against the petitioner No. 2 and his family members including his father, sisters etc. 3. Learned counsel for the petitioners in support of the petition contended that Mst. Atiya Nasir is sui juris of 20 years of age, a student of B.A. final class and is well aware of all her decisions; has entered into marriage with the petitioner No. 2 in accordance with muslim rites with her own accord and free will. Further contended that the F.I.R. was lodged with un-explained delay of more than two months. 4. The learned counsel for respondent No. 2 contended that petitioner No. 1 was forcibly put in the car by the accused persons and was kidnapped on 8.2.1995; since then she was being illegally detained by the accused persons as mentioned in the F.I.R. against her wishes and the case is under investigation. Further contended that the documents relating to the petitioner's Nikah Nama are also under scrutiny as the Nikah is fabricated one and relied upon the statement of Nikah Registrar recorded on 21.2.1995 by the Investigating Officer. 5. I have heard the arguments advanced by the learn d counsel for the parties and given my anxious considerations to the arguments. I have also gone through the material placed on record. 6. Admittedly, the petitioner No. 1 is sui juris of 20 years age and is student of B.A. final residing in the hostel at Sialkot; the Nikah Nama as per report of the Secretary Ward No. 33, Green Town, Lahore has been registered in accordance with the law in the said Union Counsel and has been found genuine vide report dated 20.3.1993 by the D.S.P., Pasrur. It is also admitted fact that the Investigating Officer request the Illaqa Magistrate to record the statement of the Nikah Registrar vide application dated 23.2.1995. The learned Magistrate after hearing the arguments of the learned counsel from both the sides observed that the case diary No. 7 dated 21.2.1995 compiled by Fazal Khan Inspector D.S.P. Office, is comprehensive and self explanatory, hence no need to record the statement of the Nikah Registrar under Section 164 Cr.P.C. and directed the Investigating Officer to proceed in the light of the investigation and statement recorded under Section 161 Cr.P.C. On the other hand, the affidavit of the petitioner No. 1 dated 12.12.1994 is also part of the police record wherein she deposed that neither she was eloped nor kidnapped by any one and intends to marry with her own free will and accord with the petitioner No. 2. Another affidavit dated 14.12.1994 of the petitioner No. 1 is also part of the record wherein she deposed that she being educated lady has entered into marriage with her own free accord and will with the petitioner No. 2 on 12.12.1994; both the affidavits aforementioned are attested by the Oath Commissioner and Notary Public, Lahore, respectively; hence the genuineness of the Nikah Nama is proved beyond arly shadow of doubt. 7. The learned counsel for the petitioner was directed to produce the petitioner No. 1 in Court; Mst. Atiya Nasir petitioner No. 1 in the open Court stated that neither she was eloped nor kidnapped by the petitioner No. 2 or his family members as alleged in the F.I.R; rather on her own accord and free will entered into marriage with the petitioner No. 2. An effort was made by the Court to reach a compromise between the parties; in the larger interest of family; an opportunity was provided to the mother of the petitioner No. 1 for 30 minutes to have a meeting with her daughter and they had a talk for about 30 minutes; in spite of the meeting; the petitioner No. 1 reiterated her stand in the open Court in the presence of her parents and other relatives. 8. The contention of the learned counsel for the respondent that the case is under investigation and the Nikah Nama is still to be verified at this stage, the writ petition is not competent and relied upon well known case of Shahnaz Begum (P.L.D. 1971 S.C. 677); has no force, as firstly the Nikah Nama has been found genuine by the D.S.P., Pasrur and the Secretary Union Council Ward No. 37, Lahore has confirmed it as aforementioned. So far as the statement of the Nikah Registrar is concerned seems to be an after though, otherwise the learned Magistrate would have not declined to record he statement under Section 164 Cr.P.C. of the said Nikha Registrar and directed the Investigating Officer to proceed in the light of statement ecorded under Section 161 Cr.P.C. In the case of Muhammad Bashir vs. The State (N.L.R. 1983 Cr.C. 501, Lahore) it was held that in Islamic Law contract of marriage need not be proved through a written document; if Nikah is not registered then either two witnesses can be produced in support of facutm of Nikah or man and woman i.e. husband and wife may together certify factum of marriage; as in the case factum of Niakh which was not written and did not stood proved according to law; on the basis of dictum laid by the Court, the benefit of doubt was given to the accused and acquitted under Section 10 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The learned counsel for the respondent contended that writ jurisdiction is a judicial discretion and has to be exercised reasonably, fairly and properly; true the exercise of writ jurisdiction by the High Court is discretionary; in this regard their Lordships in case Karamat Hussain and others vs. Muhammad Zaman and others (P.L.D. 1987 S.C. 139); it was held that:- "The writ jurisdiction conferred upon the High Court by the Constitution is discretionary but the right to apply for a writ is certainly not a privilege on the contrary, it is of the most valuable rights that can be conferred upon a citizen". Further in the case of Adamjee Insurance Company vs. Assistant Director (1989 P.Cr.L.J. 1921) it was held by their Lordships of the Supreme Court that proceedings under Article 199 of the Constitution will be competent even against inquiry/investigation if it encroaches upon any fundamental right as guaranteed by the Constitution or it violates some other law or is motivated for mala fide reasons and the same view has been followed by this Court in case Muhammad Banaras vs. S.H.O. and other (1995 P.Cr.L.J. 94 LHR) and case reported as Mst. Bushra Bibi vs. S.H.O. (1995 P.Cr.LJ. 401 LHR). 9. According to Article 35 of the Constitution of Islamic Republic of Pakistan, it is the duty of the State to safeguard the fundamental rights of the marriage. 10. Mst. Atiya Nasir petitioner No. 1 has admittedly entered into marriage with the petitioner No. 2, two months prior to lodging of the F.I.R.; she has openly contradicted the version of F.I.R. by stating that she had married with petitioner No. 2 of her own accord and free will. 11. For all that has been stated above, the continuance of proceedings against the petitioner No. 2 and his family members in case under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 will amount to unnecessary harassment. The result is obvious and no Court on such evidence can convict the petitioners and others on the charge leveled against them. It is not the intention of law that accused should necessarily be subjected to trial irrespective of the fact that the case is made out or not. The inference by this Court in exercise of its extraordinary jurisdiction under Article 199 cannot be refused merely the case is under investigation as the whole purpose is to secure the ends of justice; therefore, a person if facing groundless charge in criminal proceedings cannot be refused under Article 199 as is the privileged right of a citizen. 12. The result is that writ petition succeeds and is allowed; consequently F.I.R. No. 30 dated 14.2.1995 under Sections 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and 109 P.P.C. registered with Police Station, Badana Tehsil Pasrur, District Sialkot is hereby quashed with no order as to costs. (M.K.R.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 837 Present: ahmed saeed awan, J. WALAYAT-Petitioner versus STATE-Respondent Criminal Misc. No. 820/B/1995 dismissed on 21.9.1995. Bail- —Ban-Grant of--Prayer for--0ffence U/S 380 PPC read with Sectton 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979-- Petitioner is involved in many cases of theft-Co-accused of petitioner is proclaimed offender-Petitioner is a hardened criminal and is involved in as many as ten cases of theft-Allowing of bail on technical ground would amount to giving premium to accused who is history sheeter-Bail dismissed. [P. 838] A Mr. Muhammad Shahid Nisar Khan, Advocate, for Petitioner. Mr. Badar Munir Malik, Advocate, for State. Date of hearing: 21.3.1995. order The petitioner is accused in case FIR No. 54 dated 30.3.1994 under Section 380 PPG registered with Police Station Satghara district Okara. 2. Learned counsel for the petitioner argued that no recovery has been affected from the petitioner as such the case is false; there is no eye witness of the occurrence and that the petitioner is behind the bar for the last eight months. On the basis of above submissions, it is submitted that the petitioner is entitled to the concession of bail. 3. Learned counsel for the State has opposed the petition. It has, however, been conceded that no recovery has been affected from the petitioner. It was next contended that co accused of the petitioner is proclaimed offender and that the petitioner is involved in many theft cases. 4. After hearing learned counsel for the parties, I am not inclined to extend the concession of bail to the petitioner. He is a hardened criminal and \A is involved in as many as ten cases of theft. Allowing of bail on technical ground would amount to giving premium to the accused who is history sheeter. Dismissed. (K.A.B.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 838 [Bahawalpur Bench] Present: MUHAMMAD NASEEM, J. ALLAH BAKHSH-Petitioner versus STATE-Respondent Criminal Misc. No. 447/B-1995 dismissed on 20.7.1995. Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 497 read with Ss. 302/148/149 Pakistan Penal Code, 1860 (Act XLV of 1860) Bail-Grant of--Prayer for-Occurrence took place at 5.30 p.m. in March-It could not be darkness at that time-Eye-witnesses were accompanying deceased-Accused has been named in FIR and specific role has been attributed to him—Accused involvement in present occurrence prima facie stand proved-Held: Offence of murder with which appellant is charged fall under prohibitory clause, as such appellant is not entitled to grant of bail-Bail Application dismissed. [P. 830] C Criminal Procedure Code, 1898 (Act V of 1898)-- —Second round of recording of statements of Complainant and eye­ witnesses by SHO shows that as he himself was holding a trial which definitely is not his jurisdiction and function-In SHO opinion he has not mentioned the discrepancies in statements of P.Ws. and has passed a general remark thereof-There is no provision in Criminal Procedure Code that a person would be declared as accused or he would be considered as an innocent in case adverse party would not state on special oath. [P. 829] A Related witness- —-Mere relationship of P.Ws. is no ground to establish the innocence of accused-This is job of trial court before whom weapon of crossexamination has also to be used by adverse party-Without prejudice, in some cases closed relations may be reliable witnesses. [P. 829] B Sardar Ahmed Khan, Advocate, for Petitioner. Muhammad Afzal Cheema, Advocate, for State. Date of hearing: 18.7.1995. judgment Sajwar Khan complainant got recorded FIR No. 88 dated 7.3.1995 at P.S. Hasilpur, district Bahawalpur under sections 302/148/149 PPC about an occurrence which took place on 7.3.1995 at 5.30 P.M. within the area of police-station Hasilpur, district Bahawalpur. According to the complainant, his son Falak Sher (deceased of this case) had obtained on lease some landed property wherein he had sown the wheat. On 7.3.1995 his sons Falak Sher and Zahoor Ahmad and his nephew Irshad Ahmad set at work the tubewell. They closed the tubewell at 5.00 P.M. They reached Basti Kalsan. They were surprised by Allah Bakhsh petitioner-accused armed with rifle, Muhammad Yar accused armed with gun, Muhammad Amin accused armed with gun, Mumtaz and Riaz accused each armed with Sota. They threw the challenge. Allah Bakhsh, Muhammad Amin and Muhammad Yar fired upon them with their respective weapon which hit Falak Sher who fell down. Zahoor Ahmad and Irshad Ahmad P.Ws. went to the nearby "KhaT whereby they were saved. Falak Sher died at the spot. Due to the firing and the alarm raised by him and his companions Riaz as well as Allah Ditta arrived at the spot The accused persons fled away alongwith their respective weapon. The cause of occurrence is stated to be that Allah Bakhsh petitioner-accused suspected illicit relations of Falak Sher deceased with his sister Mst. Roshan. 2. The initial investigation was conducted by Maqsood Ahmad Laghari SI police-station Hasilpur. From 25.3.1995 Jamat Ali Bukhari Inspector/SHO police-station Hasilpur investigated the case. He joined many persons in the investigation who was informed that before the occurrence Falak Sher also fired with his 303 rifle and that Muhammad Amin co-accused fired at Falak Sher who expired. He examined Sajwar Khan complainant, Zahoor Ahmad and Irshad Ahmad eye-witnesses on 10.4.1995 for the second time. The method adopted by him was that he recorded the questions and answers. Afterwards expressing that the eye­ witnesses were closely related, that the complainant was not willing to get settled the matter on special oath, that there were discrepancies in the statements of the complainant and the eye-witnesses and that Allah Bakhsh, Mumtaz and Riaz agitated their innocence; he declared Allah Bakhsh as well as Mumtaz and Riaz as innocent. His investigation was verified by the D.S.P./S.D.P.O Hasilpur. Thereafter Allah Bakhsh, Mumtaz and Riaz have been placed in column No. 2 of the challan indictment submitted under Section 173 Cr.P.C. and put them at the mercy of the court. 3. The bail application of Allah Bakhsh petitioner has been rejected by the lower Court who has filed this petition to try his luck to be admitted to bail. 4. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record before me. Placing reliance on Muhammad Mumtaz and another versus The State (1988 S.C.M.R. 1452) learned counsel for Allah Bakhsh petitioner-accused argued that the Investigating Officers have declared Allah Bakhsh accused as innocent who has been placed in column No. 2 of the challan indictment and for that reason he is entitled to be admitted to bail. He laid the emphasis that Falak Sher himself was armed with a rifle who was notorious person of the area and lived at a distance of 15 miles from the place of occurrence and due to the firing effected by Falak Sher he was fired at by Muhammad Amin. On the contrary learned counsel for the State laid the emphasis that after recording the statements of the complainant and the eye-witnesses under section 161 Cr.P.C. there was no need on the part of Jamaat Ali Bukhari Inspector/SHO to damage the prosecution case by recording the statements of the complainant and the eye-witnesses in question and answer form which was a noval method adopted by him. He added that the inter se relationship of the P.Ws. and the deceased, the innocence canvassed by Allah Bakhsh, Mumtaz and Riaz and the non-settlement of the dispute through pecial oath cannot form the basis of the opinion during the investigation about the innocence of the accused persons. No doubt it has been held in the afore-said ruling published as 1988 S.C.M.R. 1452 that detailed comments on the police diary and on the working of the Investigating Officer cannot be made. In this regard I have to express that the circumstances of each case have to be kept in mind. After recording the statements of the complainant and the eye-witnesses by Maqsood Ahmad SI there was neither any need nor justification to record their statements in question and answer form which was done intentionally to damage the case of the prosecution. Such practice needs to be disapproved during these days when law and order situation is worsening. It is during the trial that after recording the statement of the witnesses the cross-examination is conducted by the adverse party. The second round of recording of statements of the complainant and the eye­ witnesses by Jamaat Ali Shah Inspector/SHO P.S. Hasilpur shows that as if he himself was holding the trial which definitely is not his jurisdiction and function. In his opinion he has not mentioned the discrepancies in the statements of the P.Ws. and has passed a general remark thereof. There is no provision in the Criminal Procedure Code that a person would be declared as accused or he would be considered as an innocent in case the adverse party would not state on special oath. The mere relationship of the P.Ws. is no ground to establish the innocence of the accused. This is the job of the trial Court before whom the weapon of cross-examination has also to be used by the adverse party. Without prejudice, in some cases the close relatives may be the reliable witnesses. The mere agitation made by Allah Bakhsh, Mumtaz and Riaz about their innocence is no ground to declare that they are innocent. Consequently I do not give the weight to the opinion of the Investigating Officers about the innocence of Allah Bakhsh petitioneraccused. The opinion based on their whims and figment of brain has to be discarded. 5. At this stage I agree with the learned counsel for the State that had the Falak Sher been armed with rifle the same would have been lying near his dead body especially when according to the accused party he lived at a distance of 15 miles from the place of occurrence. No rifle has been taken into possession and this aspect of the matter mentioned in the investigation need not be given the weight. 6. Learned counsel for the petitioner argued that Allah Bakhsh is alleged to have fired with rifle but no bullet was recovered by the Medical Officer during the post-mortem examination who recovered four pellets only and that there was no exit wound. Some bullets were taken into possession from the place of occurrence by the police on the first visit of the Investigating Officer. The deeper merits of the case cannot be analysed at this stage as rightly pointed out by the learned State counsel. 7. The occurrence took place at 5.30 P.M. on 7.3.1995. It could not be darkness at that time. The eye-witnesses were accompanying the deceased. Allah Bakhsh accused has been named in the FIR and specific role has been attributed to him. In the circumstances his involvement in the present occurrence prima facie stands proved and the offence of murder with which he is charged falls under the prohibitory clause who, as such, is not entitled to the grant of bail. 8. I, therefore, dismiss this application. (M.K.R.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 850 [ Bahawalpur Bench] Present: muhammad naseem, J. HASSAN MEHMOOD-Petitioner versus STATE-Respondent. Criminal Misc. No. 450/B-1995 dismissed on 20.7.1995. Bail- —Offence under section 302/324/148/149/P.P.C.--Bail--Grant of—Prayer for-Weapon of offence has been recovered from possession of petitioner-­ It is a day light occurrence-There was no previous animosity between petitioner and complainant party-There is no dispute about initial criminality of petitioner-There is no doubt about identification--F.I.R. was promptly lodged—Petitioner as a source of strength to co-accused and all of them wanted to show strength in Education institution-Role of ineffective firing cannot be taken lightly as vicarious liability of petitioner stands projected and established-petition dismissed. [P. 852] A Malik M. Sajid Feroz , Advocate for Petitioner. Sardar Muhammad Hussain , Advocate for Complainant. Malik Manzoor Ahmed Misson , A.A.G. for State. Date of hearing: 20.7.1995 judgment F.I.R. No. 6 dated 9.1.1995 stands registered at Poh'ce Station Saddar Rahimyarkhan under sections 302/324/148/149 P.P.C. at the instance of Mian Abdul Hye complainant with the allegation that his nephew Abdul Manam was a student of Commerce College Rahimyarkhan who complained to him that a day before yesterday Bashir Ahmad and Tahir Mehmood students of the college quarrelled with him and belaboured him as he did not hand over his motor-cycle to them. On the previous day (8.1.1995) he went to the Principal of the college to make the complaint who was not available. On that day (9.1.1995) at 11.00 a.m. he went in his suzuki jeep to the college to make complaint against the students. Abdul Manam , his ' Bhanja ' Abdul Manan his nephew Abdul Saboor and driver Munir Ahmad were with him. They alighted from the jeep. Amjad and Tahir Mahmood accused both armed with pistols, Bashir Ahmad and Muhammad Usman accused armed with ' Kharyars ' and Hassan Mehmood petitioner-accused armed with revolver arrived there and challenged them. Amjad accused fired which hit Abdul Manan . The second fire shot was given by Tahir Mehmood which also hit Abdul Manan . Bashir Ahmad accused gave a khanjar blow on the person of Abdul Saboor while Usman accused gave a kkanjar blow on the person of Munir Ahmad P.W. Hassan Mehmood petitioner-accused fired at him (complainant) directly but he hid himself and was saved. One student standing close by was also injured. The injured persons were removed to the hospital out of whom Abdul Manan expired. 2. The case has been investigated by different Investigating Officers and the final opinion expressed by them is about the involvement of all the accused persons. The challan indictment is said to have been submitted under section 173 Cr.P.C . for trial of the accused persons. Hassan Mehmood petitioner-accused filed his application for his admission to bail which has been dismissed by the Additional Sessions Judge and he has filed this petition before this Court to try his luck to be admitted to bail. 3. I have heard the learned counsel for the parties as well as learned Assistant Advocate General and gone through the record before me. First of all the learned counsel for the petitioner agitated the plea of alibi of Hassan Mehmood petitioner-accused who is said to be present in Karachi on 9.1.1995 at 11.00 a.m. where he was getting the religious education in a religious school. The police has thoroughly investigated in this regard and has not accepted the plea of alibi. In this view of the matter this plea shall have to be established by the petitioner-accused during the trial as it is not proper to express a contrary view to that already expressed by the Investigating Officer. 4. Learned counsel for the petitioner argued that only ineffective firing has been attributed to Hassan Mehmood petitioner-accused and in view of the case law in the country he is entitled to be admitted to bail whose involvement in the matter can be termed to be a question of further inquiry. My view is that the detail of occurrence and the role ascribed to the accused person(s) have to be analysed and dissected while disposing of a bail application in the peculiar circumstances of the each individual case. The admitted position is that the occurrence took place in Commerce College , Rahimyarkhan which is an educational institution. Hassan Mehmood petitioner-accused is admittedly not a student of Commerce College Rahimyarkhan . His presence within the precincts of the said institution armed with revolver cannot be taken lightly by this Court. He accompanied his co-accused to a place where his presence cannot be expected in the ordinary routine. It is enough to prima facie connect him with the occurrence keeping in view the principle of vicarious liability provided under section 149 Cr.P.C . in the instant matter as the accused are five in number. The law and order situation is worsening in the country as in the Executive and the Judicial field such desperate accused persons are granted the discretion who believe in kalashnikov culture and do not give any weight to the lives of others. Even if some affidavit has been given by one lecturer the same cannot be dissected and granted the weight while disposing of this bail application as in view of the opinion of the Investigating Officer this aspect of the matter can be considered during the trial. The involvement of petitioner Hassan Mehmood is not that of further inquiry as canvassed by his learned advocate in view of the dictum enunciated in Arbab AH v. Khamiso and others (1985 SCMR 195) referred to in Mst . Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 1990 Supreme Court 83) and relevant observation is reproduced as under : "There are certain other features also in this case which have not been attended in the High Court before giving a verdict that it was a case of "further inquiry". It needs to be clarified that bail can be allowed (in a case otherwise allegedly falling (1) of section 497) under subsection (2) of section 497 Cr.P.C . when there are sufficient grounds for further inquiry into the guilt of the accused but only on the condition when the Police Officer or the Court at any stage of investigation, inquiry or trial, as the case may be, comes to a definite conclusion that there are no reasonable grounds for believing that the accused had committed a nonbailable offence. Without this finding bail cannot be allowed under subsection (2) on mere ground that there are sufficient grounds for further inquiry. This aspect of the relevant law has also not been brought to the notice of the learned Judge of the High Court." The weapon of offence i.e. revolver has been recovered from the possession of the petitioner. It is a day light occurrence. There was no previous animosity between Hassan Mehmood petitioner and the complainant party. There is no dispute about the initial criminality of Hassan Mehmood petitioner. There is no doubt about his identification. The f F.I.R. was promptly lodged. He was a source of strength to his co-accused, and all of them wanted to show their strength in the educational institution. In the circumstances the role of ineffective firing cannot be taken lightly as the vicarious liability of Hassan Mehmood petitioner stands projected and established. In the circumstances Hassan Mehmood petitioner isprima facie liable under sections 302/324/148/149 P.P.C, and is not entitled to be admitted to bail. 5. For what has been said above, I di^nuss this application. (K.A.B.) Petition dismissed

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 853 [Multan Bench] Present: syed zahid hussain bokhari, J, MUHAMMAD SARWAR-Petitioner versus STATE-Respondent. Criminal Misc. No. 995/B-1995, accepted on 31.1.1996. Bail-- —Offence under sections 302/324/337-A-2 (ii)/148/149 PPC-Bail--Grant of~Prayer for-Prima facie there appears no reasonable ground for believing that petitioner has committed an offence punishable with death or imprisonment for life or for 10 years but there are sufficient grounds for further enquiry into guilt which would bring case of petitioner under section 497 sub-section 2 Cr.P.C.--Petition accepted. [P. 854] A Sahibzada Farooq Mi Khan, Advocate for Petitioner. Sh. Muhammad Rahim, Advocate for State. Malik Muhammad Latif, Advocate for Complainant. Date of hearing: 31-1-1996. judgement Muhammad Sarwar petitioner has sought post arrest bail in case FIR No. 299/94 dated 8-8-1994 under section 302/324/337-A-2(ii)/148/149 PPC of P.S. Jahanian Distt. Khanewal registered on the complaint of Muhammad Aslam against the petitioner and 7 others for an occurrence which took place on 8-8-1994 at 9 a.m. in the area of chak No. 137/10-R, 3 miles from the police station. It was alleged by the complainant in the FIR that petitioner alongwith 7 others having armed themselves with lethal weapons attacked the complainant party and as a result of which boota brother of the complainant died at the spot and complainant's sister Sajida, Farzana, Nazir Ahmad, Muhammad Akram and Mushtaq received injuries at the heads of the assailants. 2. Learned counsel for the petitioner argued that Zulfiqar and Muhammad Ayub sustained injuries during the occurrence and complainant with malafide did not named them in the FIR and during the investigation said Zulfiqar and Ayub were arrayed as accused. They were badly injured during the incident and were medically examined on the day of occurrence and that the petitioner was innocent and had not committed and offence ; that in the FIR it was stated that the petitioner was armed with a 7 mm rifle which was allegedly effectively used by the petitioner. Injury evidence by stating that as a matter of fact the petitioner was armed with a .12 bore gun at the time of occurrence and he inadvertently mentioned the same as a rifle. In my considered view this is an attempt to fill the lacuna of the prosecution case. The fact remains that post mortem report prima facie adversely reflected on the narration in the FIR. No empty of 7 mm was recovered from the spot and none of the PWs had received a rifle injury. Prima facie the participation of the petitioner in the commission of offence would be a serious question to be consider at the trial. Prosecution dis-honestly suppressed the injuries on the person of Zulfiqar and Ayub who were arrayed as accused during the investigation. They received as many as 23 injuries including a few grievous injuries. It cannot be determined at this stage which party was the aggressor and which party was the victim, of aggression. Prima facie there appears no reasonable ground for believing that the petitioner has committed an offence punishable with death or imprisonment for life or for 10 years but there are sufficient grounds for further enquiry into his guilt which would bring the case of the petitioner under section 497 Sub-section 2 Cr.P.C. For what has been stated above, the petition is accepted and the petitioner is directed to be released on bail provided he furnish bail bond in the sum of Rupees : One lac with two sureties each in the like amount to the satisfaction of Duty Magistrate/Trial Court, Khanewal. (K.A.B.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 855 [Bahawalpur Bench] Present : muhammad naseem, J. MUHAMMAD ISMAIL-Petitioner versus STATE-Respondent. Criminal Misc. No. 305/B -1995, dismissed on 19.7.1995. Bail-Delay in reporting matter to Police- —Offence under section 10(3) and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, VH of 1979--Bail»Grant of-Prayer for«In abduction cases where honour of family is involved people in country do not run to police and try to first exhaust all their sources towards locating whereabouts of abductees-Hence point of delay has no weight-Bail not allowed. [P. 856] A Ch. Shariful Hassan, Advocate for Petitioner. M. Afzal Cheema, Advocate for State. M. Farrukh Mehmood Malik, Advocate for complainant. Date of hearing: 19-7-1995 judgment Zafar Iqbal complainant a public servant who is resident of House No. 462 Ward No. 6 Yazman District Bahawalpur got recorded F.I.R. No. 2 dated 4.1.1995 at Police Station Yasman under Article 11 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 to which Article 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 has been added. He alleged that on 12.12.1994 he had gone to perform his duty while his wife has gone to the fields for cotton picking. Muhammad Ismail petitioner was related to him and due to that was on visiting terms. On 12.12.1994 he enticed away his daughter Ms?. Rizwana Kausar aged 12 years on the pretext that she was being called by her mother in the fields Suleman and Mukhtar Ahmad P.Ws saw Muhammad Ismail petitioner alongwith Mst. Rizwana Kausar and during the search they intimated Zafar Iqbal complainant. 2. Mst. Rizwana Kausar was "recovered from the custody of Muhammad Ismail at Kamalia. The Police recorded her statement under Section 161 Cr.P.C. and also got her examined form the Magistrate 1st Class under Section 164 Cr.P.C. In both of her statements Mst. Rizwana Kausar made the allegation that Muhammad Ismail enticed her away and committed zina-bil-Jabr with her. The Woman Medical Officer examined Mst. Rizwana Kausar. She obtained vaginal swabs and report of the Chemical Examiner is in the positive. Muhammad Ismail was also examined for potency and report of the Medical Officer is in the positive. Muhammad Ismail was arrested on 8.2.1995 whose bail plea has been rejected by the lower Court and he has filed this petition to try his luck to be admitted to bail. 3. I have heard the learned counsel for the parties as well as learned State counsel and gone through the record before me. Learned counsel for the petitioner has pointed out that there is considerable delay in reporting the matter to the Police, that the suit for jactitation of marriage was instituted by Mst. Rizwana Kausar and that the trial has not started in spite of the lapse of a period of more than six montl =>. In my view the aforesaid assertions are not enough to make him entitled to the grant of bail. It is a matter of common knowledge that in abduction cases where the honour of the family is involved the people in the country do not run to the Police and try to fist exhaust all their sources towards locating the whereabouts of the abductees. Hence the point of delay has no weight The institution of the suit for jactitation of marriage is also no ground for the admission of this petitioner to bail especially when it has been stated at the Bar by the learned counsel for the complainant that the said suit has been decreed on 22-6-1995 by the Court of competent jurisdiction. About the detention of the petitioner in the judicial lock up suffice it to express that the continuous period of his detention has not exceeded one year as contemplated under clause (a) to proviso III of sub-section (1) of Section 497 Cr.P.C. In view of the dictum enunciated in Mst. Nasreen versus Fayyaz Khan and another (PLD 1991 Supreme Court 412) referred to by the learned counsel for the complainant the case of the prosecution against this petitioner-accused cannot be held to be that of further inquiry. He is directly involved in the case being the only and principal accused. He has brought bad name to the family of the complainant and also shattered the confidence of the family being a relative of the complainant. It is a case of moral turpitude and cannot be taken lightly. In the circumstances of this case the petitioner is held liable for the offence falling under prohibitory clause and is not entitled to be admitted to bail. 4. For hat has been said above, I dismiss this petition. (K.A.B.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 857 (DB) Present: ahmad saeed awan and rao naeem hashim, JJ. MUHAMMAD AKBAR-Appellant versus STATE-Respondent Criminal Appeal No. 117-J-92 accepted on 18.2.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 103-Purpose of-Purpose of section 103 Cr.P.C. is to ensure that testimony given in court in regard to result of search should not depend upon police officers alone but also upon evidence of independent persons and all possibility of conviction in case of search be minimised by availability of independent persons. [P. 862] I 1995 SCMR 1793, PLD 1987 FSC 16 ref. (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —- S. 103-Offence U/S 302 PPC--Recovery-Courts should ordinarily insist on strict compliance with such requirements and view its non-compliance with suspicion unless failure to secure presence of respectable witnesses or to examine them in Court sufficiently explained; [P. 862] H PLD 1975 SC 607 rel. (iii) Criminal trial-- —It is not necessary that one should depose against another due to enmity, sometime other consideration do play its part; in such evidence, Courts must make an effort to disengage grain from chaff-It is an error to take an easy way by holding evidence as impeachable or discrepant but paramount duty of every court is to analyse evidence carefully and scrupulously and if that is not possible give benefit of it to accused so that an innocent may not be convicted. [P. 860] B (iv) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302~Conviction~Challenge to~Appreciation of evidence~Un-seen murder-No direct evidence-One of prosecution witnesses inimical towards deceased who conceded that his statement U/S 161 Cr.P.C. was not recorded by police, thus his statement is inadmissible and of no evidentiary value-Evidence of other prosecution witness is not reliable- Last seen evidence is a weak type of circumstantial evidence and is itself not sufficient to sustain charge of murder-Appellant arrested on 11.2.1989 and on his instance a hatchet and bicycle were recovered on 23.2.1989-House of appellant situated in thickly populated area, not inhabited by any family member of appellant, house open and was without any luggage except a bag lying inside beneath which axe was recovered-Investigation officer not even tried to join inhabitants of locality to witness recovery-Recovery was violative of S. 103 Cr.P.C.- Observations of trial Court for convicting appellants, are based on surmises and conjectures-Testimony of prosecution witness being un­ reliable liable to be ignored-Benefit of doubt given to appellant- Conviction and sentence was set aside-Appellant acquitted-Appeal accepted. [Pp. 860,861 & 862] A, C, E, F, G, J & K PLD 1978 SC 21, PLD 1956 F.C. 123, AIR 1927 Lah. 541, 1995 P.Cr.L.J. 985 ref. (v) Solitary Evidence- —Offence U/s. 302 PPC-No doubt, in criminal cases, conviction of an accused can be based on statement of one witness without corroboration but condition is that witness should be absolutely dependable. [P. 861] D 1995 SCMR 1789 ref. Muhammad Akbar, Appellant through Jail. Mr. Shahbaz Saeed Sajjad, Advocate, for State. Date of hearing: 23.1.1996. judgment Ahmad Saeed Awan, J.--Akbar son of Sakindar was convicted and sentenced to life imprisonment under Section 302 P.P.C. and a fine of Rs. 10,000/- was imposed; in default of payment of fine, he was to undergo further R.I. for 6 months; in case of realization of amount of fine; half of the same was ordered to be paid as compensation to the legal heirs of the deceased; the appellant/convict was acquitted of the charge under Section 404 P.P.C. by the learned Additional Sessions Judge, Faisalabad in case F.I.R. No. 45 dated 7.2.1989 under Section 302/404 P.P.C. registered with Police Station Jaranwala vide judgment dated 20.9.1990 ; hence this appeal by the said Akbar. 2. Briefly facts of the case according to the F.I.R. are that Mst. Fatima complainant reported that her son Muhammad Kamir deceased was employed as a Water-carrier in Government High School, Jaranwala who used to proceed for duty upon a bicycle in the morning and return back to his home after performing his duty. Last night i.e. 6.2.1989, Muhammad Kamir deceased did not return to his home. She started for his search at Fqjar Wela next morning and when came out of her home, co-villagers told her that a dead body within the area of Chak No. 128/G.B. was lying. In the meanwhile, Muhammad Akbar and Muhamm°d Anrver sons of Jamal Din caste Talli residents of the village also came there and told her that both of them were going last night at about Sham Wela in a personal affair to Sher son of Muhammad Akbar caste Kharal resident of Chak No. 128/G.B. and when they reached near Railway Crossing within the area of Chak No. 128/.B. Muhammad Kamir deceased and Akbar son of Sakindar caste Talli were going towards Kot Kabir from Chak No. 353/G.B. upon a bicycle which was being driven by Muhammad Kamir deceased and Akbar was sitting upon its carrier with an Axe in his hand. Thus, the complainant alongwith Muhammad Akbar and Muhammad Anwar went to Kacha path of Chak No. 128/G.B. for tracing out and when reached at a distance of one killa from bridge of Same Nala within the area of Chak No. 128/G.B., Muhammad Kamir deceased was lying dead and there were blows with a sharp edged weapon upon his head. Therefore, the complainant recorded that her son has been murdered by Akbar. 3. The motive as stated in the F.I.R. was that the appellant/convict asked the hand of the daughter of complainant PW-4 Fatima; namely Mst. Naziran who wrjs a virgin but Kamir deceased; brother of Mst. Naziran opposed the same; on that the appellant/accused had murdered the deceased. 4. After recording the F.I.R. Ex. P.C. PW-7 Zaheer Ahmad Sub- Inspector proceeded to the place of occurrence; whereafter examined the dead body and prepared the inquest report Ex. P.G. and injury statement Ex. P. H; sent the dead body to mortuary for post mortem examination; collected blood stained earth from the spot which was taken into possession vide recovery memo Ex. P.F; got prepared site plan Ex. P.B. and Ex. P.B/11; conducted the investigation; on the same day; took into possession the last worn clothes of the deceased vide recovery memo Ex. P.A. as produced by PW-2 Khalid Mahmood; arrested the accused on 11.2.1989 from his house; on 23.2.1989 on the pointation of the appellant/convict recovered and took into possession hatchet P. 5 vide recovery memo Ex. P.D. and cycle P. 6 vide recovery memo Ex. P. respectively; prepared site plan Ex. P.J. of the place of recovery; recorded the statement of the witnesses under Section 161 Cr.P.C. and after conducting investigation challaned the appellant/convict in the case. 5. At the trial, the prosecution examined as many as 9 witnesses to prove its version and gave up Anwar PW and tendered in evidence the reports of Chemical Examination P.L.M.P. and reports of Serologist Ex. P.N. and Ex. P.O. PW-1 Muhammad Iqbal, head constable; PW-2 Khalid Mehmood, constable; PW-3 Khalid Mahmood Patwari and PW-8 Munir Ahmad, Inspector/S.H.O. are the formal witnesses who have supported the prosecution version. 6. PW-9 Dr. Muhammad Akram, M.O. T.H.Q. Hospital, Jaranwala who performed the post-mortem examination of the deceased; PW-7 Zaheer Ahmad, Investigating Officer who conducted the investigation of the case, supported the version of prosecution. I. PW-4 Mst. Fatima Bibi complainant, mother of the deceased supported the contents of F.I.R.; while PW-5 Muhammad Akbar and PW-6 Muhammad Anwar, who are the last seen witnesses fully supported the prosecution version. 8. The statement of appellant/convict was recorded under Section 342 Cr.P.C. wherein he stated to be innocent and was involved as a result of enmity and stated that the murder of Kamir deceased was committed by PW-5 Muhammad Akbar and PW-6 Muhammad Anwar, who are real brothers who had concocted a false story against him, he did not produce defence evidence nor he appeared as his own defence witness under Section 340(2) Cr.P.C. 9. I have heard the arguments of learned counsel at length and have perused the record with his able assistance. 10. It is an admitted fact that the murder of deceased was not witnessed by any PW and there is no direct evidence in this case; the case of the prosecution as such hinges on the point of medical evidence; last seen; motive and recoveries; which pieces of evidence, as observed by the learned trial Court have been collected during the investigation of the case. L II. As indicated above, the deceased was last seen in the company of appellant/convict on 6.2.1989 as informed by PW-5 Muhammad Akbar and PW-6 Muhammad Anwar. The learned trial Judge considering the PWs as independent and disinterested persons and without any hesitation accepted their statements as correct as they were not inimically deposed of towards the appellant/convict and held that; "But it is strange that the defence has not put any specific enmity to the PWs nor the complainant and no crossexamination was conducted." 12. It is not necessary that one should depose against another due to enmity, some time other considerations do play its part; in such evidence, the Courts must make an effort to disengage the grain from the chaff. It is an error to take an easy way by holding the evidence as unimpeachable or discrepant but the paramount duty of every Court is to analyse the evidence carefully and scrupulously and if that is not possible give the benefit of it to the accused so that the innocent may not be convicted. 13. It is worth consideration that PW-4 Mst. Fatima complainant had conceded in cross-examination that after refusal to give hand of her daughter Mst. Naziran Bibi to the appellant/convict ; the deceased Kamir had restrained the appellant to visit his home and were not on visiting terms with each other thenceforth; further it is on record that the said Mst. Naziran, daughter of the complainant was given into Nikah to a nephew of Anwar PW and in lieu of that marriage the daughter of said Anwar PW was given into Nikah of Kamir deceased but both the marriages were dissolved due to strained relations and admittedly Muhammad Anwar PW-6 nourished enmity against the deceased. 14. It is also astonishing that PW-6 Muhammad Anwar conceded and deposed in cross-examination that:- "I did not record my statement before the police"; as the statement of PW-6 Muhammad Anwar was not recorded under Section 161 Cr.P.C. by the Investigating Officer; the statement of PW-6 is inadmissible and has no evidentary value and is not worth consideration at all. It shows that the PW- 7 Zaheer Ahmad, Investigating Officer had dishonestly investigated the case; in this view of the matter, the prosecution evidence has to be appreciated with care and caution. 15. The conviction of the appellant rested on the solitary statement of PW-5 Muhammad Akbar; real brother of PW-6 Muhammad Anwar who admittedly had strained relations with the deceased; his statement could not he relied upon without corroboration of unimpeachable witness. No doubt, :n criminal case the conviction of an accused can be based on the statement „ of one witness without corroboration but the condition is that the witness should be absolutely dependable as observed in case Gulistan and others vs. The State ( 1995 SCMR 1789). 16. For the reason mentioned above the evidence of solitary prosecution witness that is PW-5 Muhammad Akbar is not reliable and is to be scrutinized with care and caution. 17. In an unreported judgment Criminal Appeal No. 527/1976 titled Rehmat alics Rehman vs. The State decided on 5.4.1977 ; their Lordships observed that on the whole of evidence of the deceased having been last seen alive in the company of the accused was regarded as a weak typ of circumstantial evidence to base a conviction on it and this view was upheld, by the Supreme Court in case Nagib Ullah and another vs. The State (1978 SC 211. Similarly like the facts of case in hand, in cases Basunt Singh vs. Emperor (AIR 1927 Lahore 541); Siriy vs. The Crown (PLD 1956 FC 123) and Muhammad Hanif vs. The State (1995 P.Cr.L.J. 985 Lahore) the accused were in whom company the deceased were last seen alive, subsequent to their disappearance; the accused led the police to the place where the deceased were murdered and their dead bodies were recovered. It was held that though "grave suspicion" were attacked to the accused; but the circumstances were not sufficient to establish their guilt because of the possibility that the deceased might had been murdered by some one else. 18. On a balance of the decided cases; it appears that the circumstances of the deceased having been last seen in the company of accused is not by itself sufficient to sustain the charge of murder as has been done by the learned trial Judge in the present case. As there was no direct evidence of the murder, hence the conviction on the basis that he was the last person seen with the deceased is not maintainable in view of the dictum laid down in the supra cases. 19. The attending circumstances also cast doubt as to the genuineness of the recovery. PW-7 Zaheer Ahmad, Sub-Inspector/ Investigating Officer deposed that he arrested the appellant on 11.2.1989 rom his house and on 23.2.1989; the appellant led to recovery of hatchet P. 5 and bicycle P. 6 from his house from where he was arrested on 11.2.1989 which was not inhabited by any of the family members at the time of effecting the recoveries; conceded hat the house of the appellant was ituated in thickly populated area; neither he tried to join the local inhabitants at the time of recovery nor any one from the locality came there. PW Muhammad Akbar deposed that the house was open and empty at that time; there was no other luggage in the room except a bag lying beneath which the axe was lying and the bicycle; the learned trial Judge took the said recovery as proved by observing that "it is unbelievable as to why the police should plant anything as to have been recovered from the accused falsely. No mala fides or malice has been alleged against the police." 20. The manner in which the recoveries have been made on 23.2.1989 from the house of the appellant where from he was arrested on 11.2.1989, no prudent person will believe such recoveries. Further the recovery is in violation of Section 103 Cr.P.C., as their Lordships in case Muhammad Khan vs. Dost Muhammad and 17 others (PLD 1975 SC 607) observed that the Courts should ordinarily insist on strict compliance with such requirement and view its non-compliance with suspicion unless failure to secure presence of respectable witnesses or to examine them in Court sufficiently ex lained. In case Muhammad Shaft vs. The State (PLD 1987 FSC 16) it was observed while dealing with Section 103 Cr.P.C. that the provisions of Section 103 Cr.P.C. are designed to safeguard possible plantation of property and consequent false implication of an accused persons. The purpose of section 103, Cr.P.C. is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the police officer alone but also upon the evidence of independent person and all possibility of conviction in the case of search be minimised by the availability of independent person. As conceded by the Investigating Officer that the house of the appellant was situated in a thickly populated area, neither he tried to join the local inhabitants at the time of recovery nor any one from the locality came there is violative of mandatory provisions of Section 103 Cr.P.C. as observed in case Zakir Khan and others vs. The State (1995 SCMR 1793) it was observed that the object behind Section 103 Cr.P.C. appears to be to ensure that independent witnesses are associated with investigation of the accused and possibility of connoted evidence is ruled out 22. The observations of the learned Judge, on the basis of which, has convicted the appellant that it is strange that the defence has not put any specific enmity to the PWs nor the complainant no cross-examination was conducted and even did not produced his defence version is based on surmises and conjectures. It is well settled principle of law that the approach of the Court of appal would be to see the entire evidence and material before it if the case against the accused has been proved beyond any reasonable doubt. 23. In view of what has been discussed above, I am inclined to hold that the testimony of the prosecution witnesses is not reliable at all and is liable to be ignored without any hesitation, I, therefore, hold that this is case where the appellant is entitled to benefit of doubt. I allow this appeal and set aside the conviction and sentence of the appellant and direct that the appellant be released forthwith if he is not required to be detained in any other case. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 863 Present: DEEDAR HUSSAIN SHAH, J. MUHAMMAD RAFIQ-Petitioner versus STATE-Respondent Criminal Misc. Application No. 701/95 in Criminal Appeal No. 82/1995. accepted on 5.6.1995 Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 426(l)-Suspension of Sentence-Grant of Bail pending appeal-­ Complainant not implicating appellant at trial nor identifying in court- Sentence suspended in circumstances-Bail allowed. [P. 864] A & B NLR 1984 UC 346 rel. Mr. Shoukat Hussain Zubedi, Advocate, for Appellant. Mr. Atrdul LatifAnsar, A.A.G. for State. Date of hearing: 5.6.1995. order Mr. Shoukat Hussain Zubedi, learned counsel for the applicant, has contended that the appeal has already been admitted and further that the appellant may be released by exercising powers under Section 426(1) Cr.P.C., which is as under:- 426.-(l) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail on his own bond." Learned counsel for the appellant has referred on authority of the Hon'ble Supreme Court, reported in NLR 1984 UC 346 case of All Haider vs. The State. The Hon'ble Supreme Court has held as under: - "Notice was issued to the State. We have heard the learned counsel for the appellant as well as the learned State counsel. The appellant's counsel submitted that out of the three witnesses in the case, one namely, Abdur Rashid has stated that Ali Haider was not even present at the spot, while the other two have stated that he was present but have not attributed any role to him. He submitted that on this state of evidence the appeal qua him is likely to succeed. There is force in this contention. We, therefore, convert this petition into appeal and accepted the same, and grant bail to the appellant in the sum of Rupees Twenty Thousand and two sureties in the like amount to the satisfaction of A.C.R. Pasrur." Mr. Shoukat Hussain Zubedi has contended that in this case the prosecution was examined Mujahid Abbas Butt, complainant as PW-1, Exhibit 4 and the complainant has not implicated the appellant. He has drawn my attention to the evidence, recorded by the trial Court. Relevant portion of the examination in chief is as under: - "He further deposed that he cannot identify whether accused present in Court is same or otherwise as the incident took place suddenly and due to depression and tension he could not identify the accused." He has also drawn my attention to the cross-examination, relevant portion of which is reproduced as under:- "Lastly he deposed that he does not remember whether present accused has snatched taxi from him as he could not see the face of other person, who was sitting on the rear seat." Mr. Zubedi has submitted that on this state of evidence the appeal is likely to succeed. There is force in this contention of Mr. Zubedi. I have also heard Mr. Abdul Latif Ansari, A.A.G. for the State, who has opposed this application. However, in view of the authority cited above and the evidence so recorded by the trial Court, I allow this application and suspend the sentence of the appellant and order that he may be released on furnishing surety in the sum of Rs. 1,00,000/- (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the Naazir of this Court. (MAA) Sentence suspended.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 865 (DB) Present: FALAK SHER AND MUHAMMAD JAVED BUTTER, JJ. SHUJAT ALI--Appellant Versus STATE-Respondent Criminal Appeal No. 921/92, Murder Reference No. 382/91 decided on 11.3.1996. Pakistan Penal Code, 1860 (Act XLV of I860)-- —- S. 302-Conviction--Challenge to-Appreciation of evidence-Contention that on seeing deceased trying to outrage modesty of his sister, appellant lost self-control, and under grave and sudden provocation, at spur of moment, he injured deceased-Visualising prosecution version juxtaposition to appellant, defence stance does not manifest true confession for same being patently irreconcilable with adduced facts-No discovery of any blood within precincts of appellant's house as well as trail tending to connect the same place wherefrom dead body was recovered rather seems to be convenient after thought-Prosecution story stood proved by un-impeachable confidence inspiring testimony of complainant corroborated by witnesses-Motive remaining shrouded in mystry-Awarding of capital punishment not called for-Death Sentence not confirmed—Sentence altered to imprisonment for life with benefit of S. 382-B, Cr.P.C. [P. 869] C, D, E, F, G Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302-Plea of grave and sudden provocation-Counsel for state and complainant contend that plea of grave and sudden provocation is not available in view of amended law whereunder upon confession of Qatl-i- Amd, death sentence has to be visited in terms of S. 302 (a) read with S. 304 (l)(a) P.P.C.-Held: Supreme Court's pronouncement preserve right of self defence as laid down in 1992 SCMR 2037, and Lahore High Court taking into account plea of "Ghairat" has held, "the test that can be done in present stage of law is to convict such like persons, guilty of Qatl-e- Amd Committed on account of Ghairat under section 302 (C) PPC. [P. 868] A & B 1992, P.Cr.L.J. 1596, 1992 SCMR 2037, PLD 1994 Lah. 392 ref. SyedAfzal Haider, Advocate, for Appellant. SytdAli Raza, Advocate, for State. Mian Muhammad Yasin Khan Watoo and Subah Sadiq, Advocates, for Complainant. Date of hearing: 11.3.1996. judgment Falak Sher, J.--Shujat All appellant (23) assailing his conviction and sentence recorded by a learned Additional Sessions Judge Okara under section 302 PPC to death with a fine of Rs. 10,000/- or in default to serve one year RI in addition to paying Rs. 5,000/- compensation to legal heirs of Asghar Raza deceased (35) or to suffer another term of six months SI vide judgment dated 29.7.1991 seeking confirmation through Murder Reference No. 382/91 as preferred the captioned Crl. Appeal No. 921 of the same year and are disposed of as under. 2. Jafar Raza PW 3 brother of the deceased on 14/3/1990 at 10.30 p.m. lodged FIR Ex. PB with Rana Faqir Muhammad Inspector SHO Police Station City Depalpur PW 14. 3. Alleging that he was running a fertiliser shop at Grain Market Road Depalpur having the deceased as a partner and appellant accountant, who on the preceding day had an altercation over defalcation in the account to culminating into the latter's admonition whereafter he left the shop and showed up on the day of occurrence at 9/10 a.m. and invited the deceased to his place of abode for reconciliation of the accounts. Pursuant whereto the complainant accompanied by the deceased, Muhammad Yasin Sial PW 5 and Muhammad Yasin Qadri PW 6 called at the appellant's house around 9 p.m; who upon showing up went in on the pretext of opening the sitting room returned with a dagger and within their sight, in quick succession stabbed the deceased on the left side of the chest and flank who collapsed in the entrance of the house across that of the appellant. Whereafter the latter vanished away brandishing the dagger while the deceased in injured condition was removed to Tehsil Headquarter Hospital Depalpur enroute whereto his elder brother Akhtar Raza joined them and before approaching the same succumbed to the injuries. 4. Rana Faqir Muhammad Inspector PW 14 after recording the FIR proceeded to the hospital prepared the deceased's inquest report Ex. PH, injury statement Ex. PH/1, despatched the dead body to the mortuary with . Muhammad Sarwar FC PW 11 who later on tendered his last worn bloodstained clothes Shirt PI, Shalwar P2, Vest P3 reduced into possession vide memo Ex. PF, collected bloodstained earth from the venue vide memo Ex. PE, got site plant Ex. PA prepared from Muhammad Saleem Draftsman PW 2; on 25.3.1990 arrested the appellant who a day later i.e. 27.3.1990 led to the recovery of blood stained Churri P 4 digging it up by the WAPDA Transmission pole taken possession of vide memo Ex. PG attested by Riaz Hussain PW 10, Jarrar Haider PW 13. 5. Dr. Shahid Farooq PW 4 then Medical Officer Tehsil Headquarters Hospital Depalpur on 15.3.1990 conducted autopsy on the deceased's body brought by Muhammad Sarwar FC PW 11 identified by Muhammad Rafi PW 8 observing the following vide post mortem report Ex. PD :- "1. Stab wound measuring 4 cm x 1 cm x deep going on left side of front of chest. The wound lied 3.5 cm inferomedial to the left nipple (at 70' clock position from the left nipple). 2. Stab wound measuring 1.5 cm x 1 cm x muscle deep on the outer side of left side of chest, 18 cm below the left axilla. 3. Stab wound measuring 1.7 cm x 1 cm x muscle deep on the left side of front of abdomen, 1 cm below the margin of left rib cage. It lies 18 cm below the left nipple (at 6 O'clock position from the left nipple)." opined cause of death was cardiac shock due to injury No. 1 sufficient to cause death in the ordinary course of nature, all ante mortem of sharp edged origin. 6. Jafar Raza PW 3 testifying the prosecution story in crossexamination explained that they are running fertiliser shop since 1978 with a store situated 400/500 yards away, he was managing the shop while the deceased and the appellant were looking after the store maintaining separate accounts, according to the deceased the appellant had embezzled a sum of Rs. 53,587/- in a month's period, they had never visited the appellant's house preceding the incident, his clothes as well as that of the remaining two eye witnesses were slightly stained with blood while handling the deceased but were neither produced to the Investigating Officer nor were taken into possession; vehemently refuting the suggested out raging modesty of the appellant's sister Mst. Robina by the deceased. 7. He was corroborated on ail material particulars by Muhammad Yasin Sial PW 5 a neighbouring shop keeper in the same trade as well as - Muhammad Yasin Qadri PW 6 an employee of Depalpur Municipal ommittee, a latter's friend and daily visitor after office hours. Rest of the evidence was of formal nature. 8. Whereas the appellant denying the prosecution story recorded his version of the incident both in his statement under section 342 Cr.P.C. as well as on oath within the contemplation of section 340(2) ibid in the following terms:- "The PWs have given false evidence against me. I have been falsely involved in this case on the basis of false motive and concocted version. In fact my ailing father was admitted in Depalpur hospital. On the day of occurrence the deceased f visited him in the hospital after evening time, when my family members were also prtsent there except my sister Mst. Robina. Finding my family members there in the hospital the deceased left the hospital. In u.« ;meantime I also left for my house. As I reached in my house I saw the deceased inside my house, who was trying to outrage the modesty of my sister Mst. Robina, who was beseeching him. On seeing this I lost self-control and under grave and sudden provocation and at the spur of moment, picked up kitcheti knife and caused injuries to the deceased who tried to run away but fell injured in front of our house and died there. I had no intention to cause his death. None of the eye witnesses were present at the spot at the time of occurrence. I went to P.S. and narrated the occurrence there. The police fabricated a false story by setting up a false motive and then registered this case in collusion with the complainant party. I am innocent." examining his sister Mst. Robina (24) as DW 1 in support of his stance. 9. Whereupon the verdict under appeal was returned legality whereof has been assailed by the learned counsel for the appellant retierating the plea of sudden and grave provocation. 10. To which learned counsel appearing on behalf of the State as well as the complainant joined issue supporting the judgment stating that the banked upon plea is not available to the appellant in view of the amended law, whereunder upon confession of Qatl-i-Amd death sentence has to be visited in terms of section 302(a) read with section 304(l)(a) PPC placing reliance on the case of The State v. Abdul Waheed alias Waheed and another (1992 P.Cr.L.J. 1596). 11. Adverting to the legal proposition canvased by the learned counsel for the complainant before examining the factual aspect of the case, suffices it to observe that the same has been advanced in oblivion of the subsequent Supreme Court's pronouncements in the case of Manzoor and others vs. The State and others (1992 SCMR 2037), requiring the witness to stand the test of Tazkiy-tul-Shahood; in the following terms: ".. . that where proper Tazkiya-tul-Shahood was not done of an eye-witness, the conviction under Islamic Law could not be sustained. In the present case this requirement having not been satisfied, the conviction under injunctions of Islam could not be awarded." and preserving the right of self-defence with extended scope, relevant text whereof is reproduced herein below: - "even on seeing him and encountering him in spite of having weapons with them, they did not react violently immediately. These factors and such a conduct acts as a mitigation. In this background we maintain the conviction of the appellant sunder section 302 PPC but it shall be under clause (b) ..." as well as that of this Court in the case of Ghulam Yaseen and 2 others vs. „ The State (PLD 1994 Lahore 392) taking into account the plea of Ghairat:- "A Qatl committed on account of Gairat is not the same thing as Qatl-i-Amd pure and simple and the persons found guilty of Qati committed on account of Ghairat do deserve concession which must be given to them. The test that can be done in the present stage of law is to convict such-like persons, guilty of Qatl-e-Amd committed on account of Ghairat, under clause (c) of section 302 PPC, as such, a Qati cannot be said to be punishable with Qisas as per Injunctions of Islam." 12. Visualising the prosecution version juxta posed to that of the appellant's upon perusal of the entire evidence we are impelled to observe 'that the appellant's stance doesn't manifest true confession for the same being patently irreconcilable with the adduced facts, factum whereof remained uncontroverted viz. non-discovery of any blood within the precincts of the appellant's house as well as the trial tending to connect the same with the place wherefrom the dead body was recovered and the bloodstained earth thereunder Le., in the entrance of the house across the road; and rather seems to be a convenient afterthought urged at the trial for the first time without exposing it to the Investigating Officer for ascertainment of its veracity. 13. Conversely the prosecution story stands duly proved by the unimpeached confidence inspiring testimony of the complainant orroboration whereto has been furnished by Muhammad Yasin Sial PW 5 and Muhammad Yasin Qadri PW 6 save for the acclaimed motive remaining shrouded in mystery including possibility of the appellant's family honour because there was no occasion for the complainant and the deceased to visit the appellant's house for verification of the accounts, record whereof they were possessed of and secondly, being his employer they should have summoned him over instead of visiting him, therefore, awarding of capital punishment is not called for. 14. Consequently partly allowing the appeal, maintaining the appellant's conviction is awarded imprisonment for life as Tazeer availing the benefit contemplated by section 382-B Cr.P.C. and the entire fine in the event of recovery to be paid as compensation to legal heirs of the deceased. 15. As a necessary corollary of the aforegoing answering the Murder I Reference in the negative the death sentence is not confirmed. ' (MAA) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 870 [Multan Bench] Present: Muhammad Naseem, J. LIAQUAT ALI-Petitioner versus STATE--Respondent Crl. Misc. No. 323-B-1996 accepted on 10.3.1996. Bail- —-S. 497 Cr.P.C.--Bail--Grant of--Prayer for--0ffence U/S 13 Arms Ordinance 1965 and 3/4 Prohibition (Enforcement of Hadd) Order 1979 read with section 9-13/47/95 control of Narcotic Substances Ordinance-- From petitioner an unlicenced rifle was recover and a case was registered-He was under interrogation when he imparted information before Police that he has kept herein 101 grams in his possession in his shop another case was got registered-It was again during interrogation that petitioner imparted that he had kept heroin and 7 MM rifle in his house and a third case was registered-There is nothing on record to make out that any effort was made by Police to join any person from public in terms of section 103 Cr.P.C. as search was allegedly being ffected from house and shop of petitioner-No doubt police officials/Officers of any rank are respectable persons, but law of country has to be given weight-Police has by mistake applied Article 9-B of control of Narcotic Substances Ordinance, 1995 which infact should be Article 9-C, in view of weight of heroin recovered which allegedly was more than 100 grams-However, due to non-compliance of Article 22 of Prohibition (Enforcement of Hadd) Order 1979 and Article 18 of Control of Narcotic Substances Ordinance, 1995 according to which police has to btain permission from competent person/Authority to make search of shop/house of accused, involvement of petitioner can safely be held to be a question of further inquiry-During arguments it was admitted before registration of F.I.R. No. 406 dated 26.11.95 U/S 13 of Arms ordinance, 1965 no case of instant nature was registered/decided and pending against petitioner which is a salubrious circumstance in his favour to make High Court express that he has good case for his admission to bail-­ Bail granted. [Pp. 873 & 874] A, B & C Ch. Sardar Mahboob, Advocate, for Petitioner. Afr. Abdul Harmed Khokhar, Advocate, for State. Date of Hearing: 10.3.1996. order The facts giving rise to the filing of this Bail Application No. 323- B/96/Multan by Liaquat Ali petitioner-accused are as under:- 2. On 26.11.1995 at 5.25 p.m. Liaquat Ali petitioner was arrested by the police, Police Station City Shujabad, District Multan after an unlicensed rifle was recovered from him for the keeping of which he could not produce any licence and the same was taken into possession vide a memo. In this respect FIR No. 406 dated 26.11.1995 was registered at Police Station City Shujabad under section 13 of the Arms Ordinance, 1965. He was under interrogation when he imparted the information before the police that he had kept the heroin in his possession in his shop to make sale of the same. On 27.11.1995 at 9.15 a.m. he took the police party to his shop the lock of which was opened by him by his keys and led to the recovery of 101 Grams of heroin about which FIR No. 407 dated 27.11.1995 was registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under Article 9-B of the Control of Narcotic Substances Ordinances, 1995. He was arrested in that case as well. The physical remand of Liaquat Ali petitioner-accused was obtained from a Magistrate 1st Class Shujabad. While under interrogation of the aforesaid crime case No. 407 dated 27.11.1995 registered at Police Station Shujabad it was on 4.12.1995 at 11.5 a.m. that the petitioner allegedly imparted the information that he had kept the heroin and 7 MM rifle in his house. He took the police party to his house and led to the recovery of 500 grams of heroin which was taken into possession vide memo attested by two police officials. FIR No. 413 dated 4.12.1995 was registered in this regard under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under Article 9-B of the Control of Narcotic Substances Ordinance, 1995. He was arrested in this case as well.- His bail plea has been rejected by the learned Sessions Judge, Multan who has filed this petition before this Court to try his luck to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. Learned counsel for the petitioner has referred to Article 22 of the Prohibition Enforcement of Hadd) Order, 1979 according to which without the issuance of the search warrant by the Collector, Prohibition Officer or Area Magistrate the police could not enter the house of Liaquat Ali petitioneraccused. He also referred to Article 18 of the Control of Narcotic Substances Ordinance, 1995 wherein the powers to issue the warrants for the arrest of an accused and for the search in the matter are narrated. He maintained that the petitioner was arrested in a case registered under the Arms Ordinance and the investigation in the matter was simply uncalled for and that also for many days resulting in registration of two criminal cases. He maintained that no person from the public was joined to witness the alleged recovery from the house of Liaquat Ali petitioner as contemplated under section 103 Cr.P.C. which aspect of the matter has gone to the root of the alleged recovery. He added that the brother of Liaquat Ali petitioner is the publisher of some news-paper wherein some news against the police officers were published and to wreck the vengeance the false case was got registered on the basis of false investigation. On the contrary learned State counsel argued that the accused himself imparted the information in terms of section 40 of the Qanoon-e-Shahadat Order, 1984 and that the recovery has been effected in accordance with law. He added that no person from the public was willing to accompany the police to witness the recovery and that the police officers are good witnesses in the matter. 4. Before embarking upon the discussion on the merits of this application I would like to reproduce as under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979:- "22. Issue of Search Warrants.--If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. (2) Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provision of clause (1) of Article 12, arrest any person found in the place searched, if he has reason to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11." 5. Article 18 of the Control of Narcotic Substances Ordinance is reproduced as follows: - "18. Power to issue warrants.~-(l) A Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Ordinance, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Ordinance has been committed is kept or concealed". . 6. Article 40 of the Qanoon-e-Shahadat order, 1984 is reproduced as unde«:- "40. How much of information received from accused may be proi>e<l--When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, s relates distinctly to the facts thereby discovered, may be proved." 7. I have to express my view that after the recovery of the unlicensed rifle regarding which FIR No. 406 dated 26.11.1995 was got registered under section 13 of the Arms Ordinance, 1965 at Police Station City Shujabad, District Multan what was the necessity to put Liaquat All petitioner under interrogation. Article 40 of the Qanoon-e-Shahadat Order, 1984 cannot be used in routine. In a murder case the recovery of the weapon of offence is to be got effected from the accused under Article 40 of the Qanoon-e-Shahadat Order, 1984. It was not a case of the aforesaid type. Where the material is to be used as a corroborative piece of evidence the provisions of Article 40 of the Qanoon-e-Shahadat Order, 1984 are enforceable, applicable and helpful. On 27.11.1995 as well another separate case was registered and surprisingly the interrogation continued up to 4.1.2.1995. This aspect as well as the fact that it is mentioned in the FIR in the beginning that the interrogation was effected in the presence of Javaid-ul-Hamid SI/SHO, Saddar Din ASI, Muhammad Ikram H.C. Muhammad Chaman Hussain, Muhammad Arshad and Muhammad Arif Constables have made out that the police was out to further entrap the petitioneraccused. I am at a loss to understand as to why and how physical remand of the accused was granted by the Magistrate 1st Class. My view is that it happened so as there is the common complaint these days that the police and the Magistracy are in league. The Magistrate 1st Class who granted the physical remand acted in routine without any legal justification. Hence the relevant order in the matter is held to be illegal and liable to be set-aside regarding which I pass an order accordingly. Keeping in view this aspect of the matter as well, the alleged recovery can easily be termed to be doubtful even at this stage, the benefit of which has to be granted to Liaquat Ali petitioner-accused. The alleged recovery was effected on 4.12.1995 at 11.5 a.m. from Jalalpur Road, Shujabad City which was congested area. There is nothing on the record to make out that any effort was made by the police to join any person from the public in terms of section 103 Criminal Procedure Code as the search was allegedly being effected from the house of the petitioner-accused. This laxity and negligence on the part of the police officer concerned has made me to hold that the matter was being processed with illegally in routine and the legal benefit of the same shall have to be derived by and allowed to Liaquat Ah' petitioner. No doubt the police officials/officers of any rank are respectable persons, but the law of the country has to be given the weight. The alleged recovery was effected from the house of the accused and the mandatory provisions of section 103 Criminal Procedure Code should have been complied with. Without the use of the weapon of cross-examination the statements of the recovery witnesses who are the members of the police force have to be viewed with caution. It would be proper to express that with respect to the working of the police in our country the legislature has placed legal limitations. To exemplify the confession of any accused person before any police officer of any rank is inadmissible in evidence which cannot be proved against a person accused of an offence under Article 38 of the Qanoon-e-Shahadat Order, 1984. 8. The police has by mistake applied Article 9-B of the Control of Narcotic Substances Ordinance, 1995 which is fact should be Article 9-C of the said Ordinance, 1995 in view of the weight of the heroin recovered which allegedly was more than 100 grams. However, due to the non-compliance of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 and Article 18 of the Control of Narcotic Substances Ordinance, 1995 according to which the police has to obtain the permission from the competent person/Authority to make search of the shop/house of the accused and the aforesaid other reasoning, the involvement of Liaquat Ali petitioner-accused can safely be held to be a question of further inquiry and the alleged recovery would not prove to be a barrier for his admission to bail required and desired for his admission to bail required and desired by him. The plea of Liaquat Ali petitioner is that the alleged recovery is false and fictitious and thus it cannot be inferred and deduced that he gave his consent for entry in his house so as to make me hold that the aforesaid mandatory provisions about the search to be effected in his house stood eclipsed and thus liable to be ignored. Keeping in view the texture of the society, the complaints against the police working and the maintenance of the human rights for which all the regime(s) profess with heart and soul; the aforesaid free hand about the violation of the mandatory provisions of law cannot be allowed to the police. If the said violation is allowed, working of the police would be nothing but conjectural hypothesis taking the society towards judicial anarchy resulting in the administrative chaos. 9. During the arguments it was admitted that before the registration of FIR No. 406 dated 26.11.1995 under section 13 of the Arms Ordinance, 1965 no case of the instant nature was registered/decided and pending against Liaquat Ali petitioner-accused which is a salubrious circumstance in his favour to make me express that he has good case for his admission to bail. 10. For what has been said above, I hold that the involvement of Liaquat Ali petitioner-accused in this case is a question of further inquiry who is entitled to be admitted to bail. 11. I, therefore, accept this application and admit Liaquat Ali petitioner-accused to bail in the sum of Rs. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Multan with the direction to appear before the trial Court on every date of hearing failing which the trial Court may cancel his bail. 12. Copy dasti subject to payment of usual charges, if any. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 875 [Multan Bench] Present: syed zahid hussain bokhari, J. MUHAMMAD KHALID JAMSHED alias ZAFAR IQBAL-Petitioner versus MALIK GODHA-Respondent Crl. Misc. No. 99-H-1996 dismissed on 12.3.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 491--Recovery from illegal and improper custody-case of-Petitioner filed this petitioner for recovery otMst. Manzooran Maee from illegal and improper custody of Malik Godha (father of Mst. Manzooran Maee) respondent-According to petitioner Mst. Manzoor Maee, a sui-juris, contracted a valid marriage with him and she performed marital obligations in his house-Original Nikah-nama has not been produced in Court-Genuineness or otherwise of nikah-nama can be determined by a Judge Family Court-Petitioner may file a suit for restitutional of conjugal rights-At this stage it cannot be said with certainty that Nikahnama is genuine and executed without exercising undue influence and pressure-Issuance of notice to father of a girl would certainly bring humiliation and insult to family of girl-Petition is based upon malafide and has not be filed with clean hands-On one hand it is an attempt to harass and pressurise respondent and on other hand to circumvent normal law and get so-called marriage authenticated by High Court-­ Held: Presence of Mst. Manzooran Maee in house of her father can neither be termed illegal nor improper-Petition dismissed in limine. [Pp. 875 to 878] A, B, C, D, E, & F Ch. Faqir Muhammad, Advocate, for Petitioner. Date of hearing: 12.3.1996. order Petitioner Muhammad Khalid Jamshed alias Zafar Iqbal filed this petition under section 491-Cr.P.C. for the recovery of Mst. Manzoor Maee from illegal and improper custody of Malik Godha-respondent. 2. Mst. Manzoor Maee is the daughter of Malik Godha respondent and according to the petitioner Mst. Manzoor Maee, a sui-juris, contracted a valid marriage with him and she performed martial obligations in his house. B Learned counsel for the petitioner submitted that as a matter of fact, Mst. Manzoor Maee was engaged with the petitioner two years ago but thereafter respondent resiled from commitment and refused to marry M:.;t. Manzoor Maee with the petitioner. Also submitted that respondent was not happy over the marriage, solemnized by the petitioner and Mst. Manzoor Maee, Further submitted that on the intervention of the notables, petitioner agreed to send Mst. Manzoor Maee to the house of the respondent Malik Godha, who promised to make "Rukhsti" of Mst. Manzoor Maee to the house of the petitioner in a traditional manner. 2. The grievance voiced is that respondent is not allowing Mst. Manzoor Maee to visit the house of the petitioner and has also refused to accept the bondage of marriage of the petitioner with his daughter Mst. Manzoor Maee. Learned counsel submitted that Mst. Manzoor Maee is being mal-treated and is kept in illegal and improper confinement by the respondent. Also submitted that inspite of repeated requests of the petitioner, respondent has not allowed the petitioner to meet Mst. Manzoor Maee and he is bent upon to marry her with some one else against the wishes of Mst. Manzoor Maee. Learned counsel concluded that the detention of Mst. Manzoor Maee is quite illegal and there exists grave danger to her life. 3. I have anxiously considered the contentions raised by the learned counsel for the petitioner. 4. It is no where stated in the writ petition that the petitioner is a close relative of respondent Malik Godha. It is only mentioned in the writ petition that the petitioner belongs to the brothery of respondent. 5. The Courts of Pakistan are not being presided by foreign Judges, therefore, the Courts cannot ignore the social values, traditions, Pakistani culture and code of morality of the country. The arranged marriages are seen with respect in the society and the marriages contracted as a result of love affairs bring hatred and shame to the parents. The Courts do not function in vacuum and it must take due notice of social and moral norms prevailing in the Society. In number of cases it has been observed that Nikah-nama are fabricated and the girls continue living in the house of their parents. The socalled husband on his own choice on one fine morning informs the poor parents of the girl that he is their son-in-law and demands the hands of the so-called wife. This grave on-slaught sometimes cause severe shock to the parents and they become stunned. This state of affairs cannot be tolerated. Neither the father nor any close relative of the girl is a signatory of the nikah deed. The person nominated as Vakil of the bride in the nikahnama is a stranger and even not the caste fellow. The original Nikah-nama has not been produced in the Court and instead a photo stat copy of the Nikah-nama attested by Secretary Union Council has been shown for not producing the original Nikah-nama in the Court. The photo-stat copy produced ha snot even been prepared from the original Nikah-nama because in Annex and signatures of the bride groom and thumb impression of the bride do not exist. It would show that this Photostat copy has not been prepared from the original nikah-nama but from some attested copy of the so called nikahnama. The genuineness or other of the nikah-nama can be determined by a Judge Family Court. The petitioner may file a suit for restitution of conjugal rights and in case Mst. Manzooran acknowledges registration of Nikah and solemnization of marriage, she may file written reply and the Judge Family Court may pass a consent decree in favour of the petitioner. Further in case of the contest of the suit filed by the petitioner the Judge Family Court is duty bound to initiate conciliation proceedings. n PLD 1995 Lah. 364 "Syed Farman All vs. Mid Ali and others" it was held that:- "The manner and form in which a marriage is to be solemnized is unimbiguously decreed in Islam. The particular characteristic of Nikah is that it is performed publicly in the presence of witnesses and Ijab-o-Kabool has to be ascertained by the Nikah Khawan and brought to the notice of all present for their information. The girl whose hand is to be given in marriage should be major and ordinarily her marriage to be conduct by her guardian or Vakeel, appointed by her for that purpose. The Nikah, Islam lays down, should be performed in the presence of witnesses so that it attains distinction from an act performed without witnesses insecret. It loses its sanctity, if performed in a secret manner. The Muslim Family Laws Ordinance clearly prescribed the method of registering the Nikah. The violation of these procedures attract punitive action." At this stage it cannot be said with certainty Nikah Nama is genuine and executed without exercising undue influence and pressure. Issuance of notice to the father of a girl would certainly bring humiliation and insult to the family of the girl. This petition is based upon mala fide and has not been filed with clean hands. On one hand it is an attempt to harass and pressurize the respondent and on the other hand to circumvent the normal law and to get the so called marriage authenticated by this Court. , Famous principle of Islamic jurisprudence" The law changes with the change of circumstances, with the change of situation and with the change of environment. This principle is fully applicable to the facts of the present case. A sui-juris girl may contract valid marriage of her own accord but she should possess sufficient maturity and her decision of marriage should be in consance with the accepted norms of Society. In the case under review, admittedly the parents or relatives of the bride or bride groom did not participate in the Nikah ceremony. She is continuously living in the house of her father. Keeping in view all the circumstances of the case the presence of Mst. Manzooran Mai in the house of her father can neither be termed illegal nor improper. For what has been stated above, this petition has no merits which is dismissed in limine. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 878 [Multan Bench] Present: RAJA MUHAMMAD SABIR, J. MUHAMMAD SAFDAR and 4 others-Petitioners versus STATE and another-Respondents Crl. Misc. No. 72 Q-94 accepted on 19.3.1996 Jurisdiction- —-S. 561-A Cr.P.C.-Offence U/Ss. 448/451/380 PPC-Petitioner has challenged jurisdiction of Addl. Sessions Judge to entertain revision petition against order of acquittal passed in private complaint-Perusal of provisions of sub-section (2) of section 417 Cr.P.C. clearly indicates that against order of acquittal of accused remedy open to complainant is by way of petition for leave to appeal before High Court and as such revision petition before Sessions Court is not competent-Complainant thus approached wrong forum against order of acquittal of accused and as such impugned order is without jurisdiction-Held: High Court left with no alternative but to quash impugned order passed by Addl. Sessions Judge- -Proceeding quashed. [Pp. 879 & 880] A & B Sh. Muhammad Faheem, Advocate, for Appellant. Kanwar Intizar Muhammad, Khan, Advocate for Respondent. Date of hearing: 19.3.1996. judgment Through this petition under section 561-A Cr.P.C. the petitioners seek quashment of the proceedings pending before the A.C. Sub-Divisional Magistrate Kehror Pacca under sections 447/380 P.P.C. in pursuance to the impugned order dated 2.4.1994 passed by Mr. Muhammad Aslam Chaudhary Additional Sessions Judge Lodhran. 2. Brief facts are that Sh. Ijaz Ahmad, respondent No. 2/complainant filed a private complainant before Assistant Commissioner Kehror Paccka alleging that he and his mother are owners and have been living in house No. 146, Ward No. 9/12, Kehror Pacca. After the death of his father, he alongwith his other family members shifted to Kasur temporarily. On the night between 17/18-6-1991 accused-petitioners trespassed and forcibly occupied his house. They took away precious house hold articles therefrom. The matter was reported to the police and the case was registered under sections 447/380 PPG but subsequently police discharged that accused persons which necessitated the filing of the private complaint. 3. Preliminary statement of the complainant and other cursory evidence was recorded. The trial Court vide order dated 4.8.1992, summoned the accused person to face trial under sections 448/451/380 PPC. Subsequently the accused persons moved an application under section 249-A Cr.P.C. before the Assistant Commissioner/Sub-Divisional Magistrate Kehror Pacca for their acquittal which was accepted vide order dated 3.11.92. Said order was assailed by the complainant by filing a revision petition before the learned Additional Sessions Judge, Lodhran, which was opposed by the accused-petitioners. Learned Additional Sessions Judge vide impugned order held that there was no reasonable ground to believe that the complainant case was false and there was no occasion to acquit the accused persons without recording of the evidence. He set aside the order of acquittal of the accused and remanded the case to the trial Court directing the parties to appear before it on 11.4.1994. Hence this petition. 4. Learned counsel for the petitioners has challenged the jurisdiction of the learned Additional Sessions Judge to entertain the revision petition against the order of acquittal passed in the private complaint of the respondent. In this behalf learned counsel has relied upon the provisions of section 417 Cr.P.C. and Muhammad Sharif vs. Muhammad (1993 P.Cr.LJ. 2053). 5. Learned counsel for the respondent-complainant has defended- the impugned order by submitting that the accused are implicated with the commission of the offence and as such they are liable to be tried. 6. I have heard the learned counsel for the parties and have gone through the available record. It has been observed in the above referred judgment that the appellant in the said case instead of filing a petition for special leave to appeal as provided under section 417(2) Cr.P.C. filed a revision petition against the acquittal of the respondents before the learned Sessions Judge Vehari, who dismissed the revision petition being incompetent. The appellant thereafter filed a petition for special leave to ppeal before the High Court and the same after having been entertained was dismissed on merits. 7. Learned counsel for the respondent-complainant has relied upon Mst. Tasleem vs. Abdul Rashid Bacha (PLD 1989 Peshawar 28) to contend that the revision petition was competent before the learned Additional Sessions Judge. But the said judgment relates to dismissal of complaint and the comparison was made of the provisions of sections 202, 203 & 249-A Cr.P.C. It was observed that: "Consequences flowing from a mere dismissal of the complaint and acquittal of the accused are not only different but significant in their import. In the former case the scope for bringing the accused to book remains open whereas in the latter case the accused is finally and irrevocably subject to appeal, if any, absolved of the charges levelled against him." This judgment is clearly distinguishable as the question of competency of the revision petition was not considered therein. 8. Perusal of the provisions of sub-section (2) of section 417 Cr.P.C. clearly indicates that against the order of acquittal of accused the remedy open to the complaint is by way of a petition for leave to appeal before this Court and as such the revision petition before the Sessions Court is not competent. The respondent has not been able to show any reported judgment regarding the competency of the Sessions Judge to deal with the revision arising out of the order of acquittal of the accused from a complaint case. This being so, learned Additional Sessions Judge was not at all competent to entertain the revision petition filed against the acquittal of the petitioners. The complainant thus approached the wrong forum against the order of acquittal of the accused, and as such the impugned order is without jurisdiction. In this view of the matter I am left with no alternative but to quash the impugned order passed by the learned Additional Sessions Judge dated 2.4.1994. The petition accordingly succeeds and is allowed. (M.S.N) Proceeding quashed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 880 [ Multan Bench] Present: raja muhammad sabir, J. MUHAMMAD SHARIF-Petitioner versus STATE-Respondent Crl. Misc. No. 348/B/1996 dismissed on 27.3.1996. Bail- —-S. 497 Cr.P.C.-Bail-Grant of--Prayer for--Offence U/Ss. 10/16 (IIV) 79 Offence of Zina (Enforcement of Hadd) Ord. 1979--No doubt petitioner is not named in F.I.R. but he has been involved by Mst. Dani material prosecution witness when her statement was recorded U/S 164 Cr.P.C. and subsequently her statement was recorded on same date U/S 161 Cr.P.C.--Petitioner is attributed role to this extent that he drove car and taken her to Gujrat alognwith co-accused, who committed zina-bil-jabr with Mst. Dani repeatedly-Contention that petitioner has not committed zina is also correct-However, involvement of petitioner is based on evidence of prosecutrix alone, who has not been examined by prosecution as yet-Conduct of petitioner indicates that he is a desperate criminal who has attacked on father of prosecutrix after four days of first occurrence and prior to his arrest—In case he is released on bail he is likely to tamper with prosecution evidence which is yet to be recorded-Held: High Court is not inclined to release petitioner on bail since challan is pending in court of Addl. Sessions Judge-Bail refused, [P. 883] A & B Sardar LatifKhan Khosa, Advocate, for Petitioner. Mr. Tariq Zulfiqar Ahmad Ch., Advocate, for Complainant. Date of hearing: 27.3.1996. order This is a petition for grant of post arrest bail in a case registered under Sections 10/16 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, vide FIR No. 440 dated 22.9.95, at Police Station Sadar Arifwala, District Pakpattan Sharif, filed by Muhammad Sharif petitioner. 2. Brief allegations as stated in the FIR by Fazal Ahmad complainant father of Mst. Dani the alleged abductee is that she has been married by him two years ago to Muhammad Sadiq, has been abducted on 12.9.1995 by Muhammad Saghir, his brother Munir Ahmad, Yasin, Rasoolan Bibi, Sughran Bibi, Sultan and Surraya Bibi from his house situated in Chak No. 74/EB Tehsil Arifwala, District Pakpattan Sharif. He further stated that having failed to procure her back through his personal efforts, he lodged the above mentioned F.I.R. During the investigation Mst. Dani was recovered and her statements was recorded under Section 164 Cr.P.C. by the Assistant Commissioner/Magistrate 1st Class, Arifwala on 1.11.95, wherein she stated that while going towards her Dera, she was intercepted by Muhammad Saghir co-accused, who by force put herein a car which was sped away by the petitioner. She was taken to a Dera at Gujrat and kept in a house of Zahoor Ilahi co-accused where Saghir committed zina-bil-jabr with her. She also stated that she was taken to Gujrat Kutchery and forced her to thumb mark on some blank papers. She remained there for two months and Saghir accused repeatedly committed zina-bil-jabr with her. On 31. 10.95 father of Saghir accused came there and brought her to Chak No. 68/EB and she was handed over to Sharif Doghar, wh ^ ^rpd'tced her before the police and then she was taken in the Court of learned Assistant Commissioner, who recorded her statement under Section 164 Cr.P.C. 3. Learned counsel for the petitioner contends that neither the petitioner is named in the FIR nor any act of commission of zina is alleged against him. His role according to the prosecution is that he drove the car wherein she was seated by Muhammad Saghir accused. 4. Learned counsel for the complainant on the other hand stated that conduct of the accused after the occurrence dis-entitle him to the'grant of bail as he alongwith Muhammad Munir alias Bhutto brother of Muhammad Saghir co-accused and others attacked on Fazal Ahmad for getting the above mentioned case registered against them. Many injuries were caused to the complainant party in the said occurrence and the matter was reported to P.S. Arifwala City regarding this occurrence on 26.9.1995 by Muhammad Siddiq nephew of Fazal Ahmad vide FIR No. 302/95 under Sections 337 F(iv)/33F(ii)/337A(i)/148/149 P.P.C. It was alleged in the said FIR that while raising lalkara the accused instigated their companions that complainant be taught a lesson for having got a case registered under Hadood Ordinance against them and attacked with dagger blows etc., as a result of which Fazal fell down on the ground and accused disappeared from the spot thereafter. They are still threatening the complainant party and case is still under investigation. The challan of the present case FIR No. 440/95 has been sent to the Court where according to the learned counsel for the complainant and Muhammad Ismail ASI, who brought the record, trial has commenced. Order dated 14.2.1996 passed by the learned Addl. Sessions Judge, Arifwala, whereby the bail application of the petitioner was rejected recently reads as under (Not placed on record by petitioner):- "... . The present application has been repeated on solitary ground that the challan has not been submitted so far. Police file however shows that the challan was submitted by SHO Saddar Arifwala on 26.11.1995. It was forwarded by DSP on 5.12.1995. As per report dated 7.2.96, made by District Attorney Pakpattan, incomplete challan was directed to be sent to the court. Surprisingly the file is still lying with the SHO and has not been submitted to the court of Illaqa Magistrate. This tendency on the part of the local police reflects a sorry state of affairs in the submission of challan providing a ground to the criminals for moving repeated bail applications. After due scrutiny by the concerned agency there is no justification to keep the record in personal custody instead of submitting the same in the court of Illaqa Magistrate. Copy of this order be sent to the S.P. Pakpattan Sharif for information and necessary action." In view of the above learned counsel for the complainant submits that the release of the petitioner at this stage is likely to effect the prosecution case in which the evidence is likely to be recorded during the next few days. 6. I have heard the learned counsel for the parties and have perused the record. No doubt the petitioner is not named in the FIR but he has been involved by Mst. Dani the material prosecution witness when her statement was recorded under Section 1'64 Cr.P.C. on 1.11.95 and subsequently her statement was recorded on the same date under Section 161 Cr.P.C. The petitioner is attributed role to this extent that he drove the car and taken her to Gujrat alongwith Muhammad Saghir co-accused, who committed zina-biljabr with Mst. Dani repeatedly. The contention of the learned counsel for the petitioner that the petitioner has not committed zina with Mst. Dani is also correct. However, the involvement of the petitioner is based on the evidence of the prosecutrix alone, who has not been examined by the prosecution as yet. The conduct of the petitioner indicates that he^is a desperate criminal who has attacked on the father of the prosecutrix on 26.9.1995 after four days of the first occurrence and prior to his arrest. In case he is released on bail at this stage he is likely to tamper with the prosecution evidence which is yet to be recorded. 7. Learned counsel for the petitioner reiving upon Lai Bux and 2 others vs. The State (1979 P.Cr.L.J. 915) submits that involvement of the petitioner in another case does not dis-entitle him from the grant of bail. The aforesaid case relates to the offence under Section 156(1) Customs Act, 1969 and the pendency of a previous case against him was urged as a ground by the complainant for dismissal of his application and in that context it was observed in the said judgment that the petitioner being already involved in smuggling activities, adjudication proceedings resulting in confiscation of vehicle allegedly owned by him and proceedings being still pending in criminal court-held by itself no consideration for refusal of bail to the petitioner. The facts of that case are entirely different from those which are in the present case. The petitioner in order to deter the complainant has attacked and caused injuries to him and others. In case the petitioner is released on bail at this stage he is likely to terrorize to Mst. Dani and other prosecution witnesses. It will not be in the interest of justice to release the accused on bail at this stage as the challan has already been submitted in Court and the accused has already used his influence regarding delay in submission of challan to trial Court. 8. In view of the above, I am not inclined to release the petitioner on bail at this stage. Since the challan as stated by the police officer is pending in the Court of r. Zia-ur-Rehman Khan, Addl. Sessions Judge, Arifwala. He is directed to conclude the trial of the case expeditiously within a period of three months from today. 9. However, the petitioner may apply for grant of bail after the evidence of the public witnesses has been recorded by the trial Court. \Vith this observation this petition is dismissed. (M.S.N.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 884 [Multan Bench] Present: syed zahid hussain bokhari, J. REHMAT ALI--Petitioner versus STATE-Respondent Crl. Misc. No. 378-B-1996 accepted on 24.3.1996. Bail- —- S. 497(2)--Cr.P.C.-Bail-Grant of-Prayer for--Offence U/S. 302/34 PPC-- Petitioner had no independent motive to commit offence, although armed with 12 bore gun, did not use it, at all--Ocular account was not fully in line with medical evidence-High Court is of the considered view that petitioner has not committed a non-bailable offence but there were sufficient grounds for further enquiry which entitles petitioner for grant of bail-Question of applicability of section 34 PPC will be determined at stage of trial-Bail granted. [P, 885] A Mr. Muhammad Zawar Shah, Advocate, for Petitioner. Mr. Muhammad Sarwar Bhatti, Asstt. A.G. for State. Date of hearing: 24.3.1996. order Rehmat Ali petitioner filed this petition for the grant of bail after arrest in case FIR No. 153 dated 7.8.1995 under section 302/34 PPC of P.S. Malka Hans, Distt: Pakpattan Sharif registered on the statement of Muhammad Yar complainant against Rehmat Ali petitioner and his coaccused Muhammad Arhsad for an occurrence which took place on 7.8.1995 at 2.30 p.m. in the area of village Dhapai for the murder of his daughter Mst. Kalsoom Bibi wife of Muhammad Arshad co-accused, son of the petitioner. 2. It is mentioned in the FIR that Kalsoom Bibi was married to Muhammad Arshad co-accused about 6 months ago and the relations between the two were strained on the fateful day Rehamt Ali petitioner armed with 12 bore gun and Arshad co-accused armed with hatchet launched attack upon Mst. Kalsoom Bibi. Rehmat Ali petitioner allegedly raised lalkara that^Kalsoom Bibi be taught a lesson for the quarrel and wrapped a sofa around the neck of Mst. Kalsoom who fell on the ground and there-upon Arshad co-accused gave injuries on her chest with the wrong side of the hatchet. The occurrence was witnessed by Muhammad Ashraf and Muhammad Nawaz. 3. Learned counsel for the petitioner argued that petitioner is the father of the co-accused Muhammad Arshad and he has been falsely involved on account of enmity and that the petitioner is an old man of 65 years who did not use his gun at the time of occurrence and according to the learned counsel, there was no necessity of putting a sofa around the neck of the deceased as the gun could have been effectively used from a distance and it is yet to be seen whether the petitioner had common intention to kill Mst. Kalsoom Bibi. Further argued that in the post mortem report there was no ligature mark upon the neck of the deceased and the cause of death in this case was the blunt weapon injuries. 4. Learned Asstt. Advocate General argued that the petitioner is named in the FIR with a specific role and he not only raised a lalkara prompting his son to murder Mst. Kalsoom but also actively participated in the occurrence by putting a safa around the neck of the deceased and forced er to fall on the ground. 5. I have heard the learned counsel for the parties and have gone Through the record produced by the police. 6. The motive for the occurrence as stated in the FIR was the dispute between the husband and the wife. The petitioner has no direct connection with the alleged motive. It is stated in the FIR that petitioner was armed with 12 bore gun at the time of occurrence but admittedly, he did not use the same in the whole occurrence. Had he shared the common intention, he could have easily and effectively used his gun and there was no necessity to put & safa around the neck of the deceased in order to lay her down on the ground. The petitioner had no independent motive to commit the offence. The co-accused had his own independent motive to commit the occurrence, so, prime facie there was no necessity for the petitioner to raise lalkara and to ask his son Muhammad Arshad to teach a lesson to the deceased. The post mortem report does not indicate any ligature mark around the neck of the deceased. In the opinion of the doctor the injuries caused by blunt weapon ere sufficient to cause death in the ordinary course of nature. The ocular account nd the allegations levelled against the petitioner are not fully in line with the medical account. 7. The petitioner had no independent motive to commit the offence, although armed with 12 bore gun, did not use it, at all. The ocular account was not fully in line with the medical evidence. In my considered view, all these factors lead to the conclusion that there were no reasonable grounds for believing that the petitioner has committed a tion-bailable offence but there were sufficient grounds for further enquiry into his guilt which entitles the petitioner for the grant of bail under section 497(2) Cr.P.C. The question of applicability of section 34 PPC will of course be determined at the stage of trial by the trial Court. 8. For what has been stated above, the petition for the grant of bail is accepted and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of trial court/learned Sessions Judge, Pakpattan Sharif. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 886 Present : JALALUDDIN AKBARJI, J. SHAH JAHAN-Petitioner versus DR. ADNAN and STATE-Respondents Crl. Misc. No. 164 of 1995 dismissed on 11.1.1996. Bail- —S. 497 3rd Proviso sub-section (1) of Cr.P.C.-Bail-Grant of-Prayer for- Offence U/Ss. 302/324/120-B/109/34 PPC--Contention that petitioner is not entitled to bail on grounds of proviso to 3rd Proviso of sub-section (1) of section 497 Cr.P.C. and that special Court Syppression of Terrorist activities is governed by its own procedure of grant of bail U/S 5-A (8) of S.T.A. Act 1975-It was further contended that a hired assassin is dangerous criminal and is involved in terrorism-Confessional statement of petitioner is sufficient material in this respect-Confessional statement of petitioner will reveal that he is a hired assassin alongwith other hired assassins for murder of Gen Retd. Fazle Haq-Words "dangerous Criminal or "involved in terrorism" mentioned disjunctively in proviso to 3rd proviso to sub-section (1) of section 497 Cr.P.C. is an exception to section 497 Cr.P.C.-Conspiracy to murder deceased was hatched in tribal area wherein petitioner fully participated-There is likelihood of abscondence of petitioner like other proclaimed offenders in the case residing in tribal area in case petitioner is allowed bail on any ground whatsoever-Petitioner dismissed. [Pp. 887 & 888] A, B & C Mr. Muhammad Asif Khan, Advocate for Petitioner. Mr. Abdul Rauf Gandapur, Advocate for State. Date of hearing: 11.1.96 judgment Shah Jehan, petitioner herein, is accused on trial before the learned Judge of the Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) in case FIR No. 576 dated 3.10.1991 Police Station East Cantt. U/Ss. 302/324/34/120-B/109/427 PPC recorded on the report of Dr. Adnan son of deceased General (Rtd.) Fazle Haq. Learned counsel for the petitioner submitted that the petitioner was arrested on 8.1.1992 and the trial has not concluded so far. The petitioner has the legal right to be released on bail under the 3rd Proviso to sub-section (2) of Section 497 Criminal Procedure Code. On merits it was contended that the confessional statement of the petitioner is exclamatory. The judgments "Zahid Hussain Shah vs. The State (PLD 1995 SC 49), Ghulam Sarwar vs The State (1990 SCMR 1045) and Ishfaq Ahmad vs. The State (PLD 1990 Peshawar 156) were cited and referred for reliance on his contention of the right of the petitioner to be released on bail. Dr. Adnan, present in Court, stated that the application may be decided in accordance with law. Learned counsel for the State contended that the petitioner is not entitled to the bail on the grounds of Proviso to 3rd Proviso of sub-section (1) of Section 497 Cr.P.C. and that the learned Special Court is governed by its own procedure of grant of bail u/S. 5-A (8) of the Suppression of Terrorist Activities Act, 1975. It was further contended that a hired assassin is a dangerous criminal and is involved in terrorism. The confessional statement of the petitioner is sufficient material in this respect. The case was entrusted to Additional Sessions Judge, Peshawar on 22.3.1994 for trial and the charge against the petitioner was framed on 11.10.1994. Evidence in the trial was recorded form time to time and on 5.1.1995 on the basis of judgment reported in 1994 SCMR 717 the case was sent for trial to the Special Court under the Suppression of Terrorist Activities Act. The learned Judge of the Special Court framed the charge against the petitioner afresh on 19.9.1995 and thereafter recorded some evidence but as now the case file has been summoned, the trial once again is in abeyance. The learned Judge of the Special Court is yet to conclude the trial for the offence within 2 years. The perusal of the confessional statement of the petitioner will reveal that he is a hired assassin alongwith other hired assassins for the murder of Ge. Retd. Fazle Haq. The words "dangerous criminal" or "involved in terrorism" mentioned disjunctively in proviso to 3rd proviso to sub-section (1) of Section 497 Cr.P.C. is an exception to Section 497 Cr.P.C. The August Supreme Court of Pakistan in the judgment "Messrs East and West Steamship Company vs. Pakistan and others (PLD 1958 Supreme Court (Pak.) 41) the function of Proviso was interpreted as under:- "A proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. The words of a proviso are to be construed strictly and confined to the special case which its words enact; it would be wrong to construe those wordsjas being co-extensive with those used in the purview, particularly where the effect might be of bringing about a repeal of the purview." The purpose of arrest of a person in an offence is to secure his attendance at the time of trial and ensure that in case found guilty, the accused is available to receive the sentence. Refer to Para. 7 of the judg­ ment "Chaudhry Shukat Hussain vs. The State (1995 SCMR 1249). The confessional statement of the petitioner will reveal that the conspiracy to murder Gen. Retd. Fazle Haq was hatched in the tribal area wherein the petitioner fully participated. There is likelihood of abscondence of the petitioner like other proclaimed offenders in the case residing in tribal area in case the petitioner is allowed bail on any grounds whatsoever. This application is, therefore, dismissed. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 892 Present: deedar hussain shah, J. SHAIKH SHARIF AHMAD--Applicant versus STATE-Respondent Criminal Bail No. 544/95 dismissed on 15.6.1995 Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 497-Emigration Ordinance XWI, 1979, S. 18/A, 22/b~Passport Act XX 1974 S. 6 (i) (g)-Bail-Grant of-prayer for-Applicant after grant of bail by trial Court did not join investigation nor responding to notice issued by court for appearance rather remained absent for 3 years-­ Applicant misused concession of bail-Offence falls under Prohibitory clause of Section 497 Cr.P.C.-Do not deserve any Concession in circumstances-Bail refused. [P. 897] A 1981 SCMR 959, 1989 SCMR 1987, 1991 SCMR 322 ref, Mr. Saleh Muhammad G. Memon, Advocate for applicant. Mr. Ikram Ahmad Ansari, D.A.G. for the State. Date of hearing: 15.6.1995 order The accused/applicant has approached this Court with a prayer to recall NEWS issued against him and enlarge him on bail. The facts of the case are that complainant Safdar AM son of Sardar All, resident of House No. 110/17, Sector 11/D, New Karachi lodged his report/complaint stating therein as under :-- "I am resident of house No. 110/17, Sector 11/D, New Karachi. While I was searching for job, I came into contact with one Shaikh Sharif Ahmed in the month of October, 1991 who took me to his office i.e. Azhar & Co. at 130/D, Shop No. 5, Green View Apartments, "B" Market, Phase-I, D.H.A. Karachi, where Syed Ziauddin Shah was already present. Shaikh Sharif Ahmed introduced me with Syed Ziauddin Shah and told him about my employment in Saudi Arabia. They both gave me assurance and also told me to bring other desirous job seekers in Saudi Arabia and I was directed to bring Rs. 30,000/- for expenses etc. After about two days I reached the said office, where both the said persons were present and quite number of Passports were lying in the office. paid them Rs. 30,000/- for which no receipt was issued to me. They told me to attend their office after two weeks to proceed for employment in Saudi Arabia. I accordingly reached in the offices after two weeks but was again directed to come after one week on the pretext that telex from their Principal at Saudi Arabia is awaited. Since then I am being kept on false promises. Kindly take necessary legal action in this regard." Thereafter Inspector FLA Crime Circule-I, Karachi, lodged the FIR punishable under Section 6 (1) (g) of Passport Act, 1975, and Sections 18 and 22 B of the Emigration Ordinance, 1979 and started investigation. The accused-applicant after having come to know of the above case registered against him applied for pre-arrest bail, Interim pre-arrest bail was granted to the applicant in the sum of Rs. 50,000/- by order dated 21.5.1992 and subsequently the same was confirmed by order dated 16.8.1992. After about three years the complaint was filed by the FIA, CC-I, Karachi, under Section 6 (1) (g) of Passport Act, 1975 and Sections 18/A and 22 (b) of the Emigration Ordinance, 1979. On 9.1.1995 Challan was submitted in the Court of learned Special Judge, Central-I, Karachi. Diary of the case dated 9.1.1995 reads as under :-- "A.D. Mr. Khalique Zaman is present and filed complaint under Section 24 (6) E,O. 1979 alongwith sanction of prosecution for accused Sh. Sharif and Zia Hussain Shah. Accused Sh. Sharif is on bail from this Court while accused Zia Hussain Shah has been shown as absconding. Put of to 22.1.1995. Issue notice to accused Sh. Sharif and issue NEW against accused Zia Hussain Shah." I would also like to reproduce diary of the case dated 16.6.1992 which reads as under :-- "Applicant/accused is present on bail. Interim bail granted to applicant is hereby confirmed. Applicant/accused is directed to attend this court and I.O. of the case when called for investigation purpose. Surely papers received after verification are not proper as report. Applicant directed to furnish fresh surety within 7 days." Since 9.1.1995 the accused deliberately remained absent as such the Court issued notice for his appearance, which was not served. Thereafter notice to the surety was issued and the surety finally appeared in the Court and stated that he is not in knowledge of the whereabouts of the applicant and is not able to trace him out and finally on 10.4.1995 the learned trial court imposed a fine of Rs. 10,000/-, which was deposited by the surety in the Court vide receipt No. 73652. On 23.4.1995 accused Shaikh Sharif Ahmed was produced in the court in pursuance of NBWs issued against him and the accused was remanded to jail custody. On 15.5.1995 bail application of the accused was moved in the learned trial court, which was dismissed on 25.5.1985. Hence he has approached this Court for the relief as stated earlier. I have heard Mr. Muhammad Saleh G. Memon, learned counsel for the applicant, who hss contended (i) that the applicant/accused had voluntarily appeared before the Court of Special Judge Anti-Corruption (Central-I), Karachi and was granted pre-arrest ban on merits but thereafter he was never served with any notice to appear before the learned trial Court; (ii) that the aforesaid arrest of the applicant was sudden and surprising because before execution of the NBWs, he was not served with any notice to appear before the learned trial Court; (iii) that no proceedings or action under Sections 87/88 Cr.P.C. have been taken; (iv) that the accused/applicant having suffered from jaundice which is a fatal disease, was under the treatment of Dr. Tauseef of Umer Clinic. The learned counsel for the applicant has referred the following case law of the Hon'ble Supreme Court :-- (1) Fazal Muhammad vs. Muzaffar Hussain (1981 SCMR 959). In this case it has been held that "As for the alleged abscondence of the accused, there is nothing on the record to show that they had been declared proclaimed offender. It cannot, therefore, be said that they had 'absconded' merely because they were not readily available to the police." This authority of the Hon'ble Supreme Court is quite different and distinguishable from the facts of the present case. Here in this case, applicant Shaikh Sharif Ahmed was granted pre-arrest bail by the learned trial Court on 21.5.1992. Thereafter he himself had chosen not to attend the court and not to associate himself with the investigating agency, as a result of which, after a lapse of 3 years, the trial court has issued NBWs against him, for facing the trial. (2) Khan Mir vs. Amal Sherin (1989 SCMR 1987). In the above case it has been held that "In support of the present petition, the only ground urged is that the High Court has not given due consideration to the abseondence of the respondents. On a query made by us, the learned counsel for the petitioner frankly stated that no proceedings under Sections 87 and 88 Cr.P.C. were taken against the respondents in respect of their alleged abscondence." In my opinion this authority is also not applicable in view of the fact that the accused/applicant was allowed prearrest bail by the learned trial Court and on his own accord he remained absent from the Court. Therefore, proceedings under Sections 87 and 88 were not taken against him and the learned trial Court rightly issued notice for his appearance and when notice was not served and his whereabouts were not known, ultimately the trial court issued notice for appearance of the surety, who appeared in the Court and stated that he is not in the knowledge of the whereabouts of the applicant/accused and finally, as earlier pointed out, the surety was penalised. (3) The State vs. Mukhtar Ahmed Awan (1991 SCMR 322). In this case it was been held that "It is unnecessary to examine the contentions raised by the learned Advocate-General at any length, for, inview of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offences of which he was being accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail. It is matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the court of Session for pre-arrest bail before approaching the High Court. Considering the circumstances of this case it is not possible to hold that the High Court made an error, requiring interference by this Court, in directly entertaining the application of the respondent." This authority, in any case, is not favourable or applicable to the case of the present applicant. In the medical certificate produced by the learned counsel for the applicant, which is dated 21.4.1995, the Medical Officer has stated that Shaikh Sharif Ahmed remained under his treatment for the last 2 weeks for acute hepartitis and was advised for rest for 2 weeks more. The absence of the accused from the Court is for about 3 years. I have also heard Mr. Ikram Ahmed Ansari, learned D.A.G., who has opposed the bail application and stated that the accused/applicant has misused the concession of bail granted to him and is not entitled for any relief whatsoever. I would like to reproduce section 18 (a) (b) and Section 22 (a) (b) of the Emigration Ordinance, 1979 which are as under :— "18. Fraudulently inducing to emigrate, efe.-whoever-- (a) forges any document required for, or relating to, the emigration at any person, or has in his possession or under his control any instrument or article which may be used for the purpose of such forgery, or (b) by meaos of intoxication, coercion, fraud or willful misrepresentation, causes or induces, or attempts to cause or induce, any person to emigrate, or enter into any agreement to emigrate, or leave any place with a view to emigrating, shall be punishable with imprisonment for a term which may extend to fourteen years, or with fine or with both," 22. Receiving money, etc., for providing foreign employment.-- whoever, for providing or securing or on the pretext of providing or securing, to or for any person employment in any country beyond the limits of Pakistan- (a) being an Overseas Employment Promoter, charges any fee in addition to the prescribed amount, or (b) not being such a Promoter, demands or receives, or ttempts to receive, for himself or for any other person, any money or other valuable thing, shall be punishable with imprisonment for a term which extend to fourteen years, or with fine, or with both." I would also like to reproduce Section 6 (1) (g) of the Passport Act, 1975, which is as under :-- 6. Penalties for certain offences relating to Passport.-- (1) A person shall be punishable with imprisonment which extend to three years, or with fine, or with both if he- (g) is in wrongful possession/of passport not lawfully issued to him or allows his passport to be used by another person". I have gone through the material placed on record and the authorities cited by the learned counsel for the parties. Admittedly the accused/applicant was allowed pre-arrest bail on 21.5,1992 which was confirmed on 16.6.1992 with the direction to attend the Court and the Investigating Officer of the case when called for the investigation purpose. Thereafter, as earlier point out, on 9.1.1995 challan was submitted in the learned trial court and notice for appearance of the accused was issued and finally his surety was issued a notice and he was required to produce the accused/applicant in the Court. Surety of the accused appeared in the court0 ana stated in the court hat whereabouts of the applicant are not known to him and he was not able to procure his attendance. Therefore, the surety was penalized by the Court and NBWs were issued by the learned trial court and in pursuance of that he was arrested by the FIA and was remanded to jail custody by the trial Court. The authorities cited by the learned counsel for the applicant are not favourable to the case of the applicant, as discussed earlier, The accused has been charge sheeted for an offence under Sections 18/A and 22 (b) of the Emigration Ordinance, 1979, for which punishment is 14 years. R.I. or fine or with both and the offences for which the applicant is charge sheeted fall within the prohibitory clause of Section 497 Cr.P.C. The applicant/accused has misused the concession of bail by remaining absent for a period of about 3 years. After getting pve-arrest bail, he did not appear before the trial court and did not associate himself with the investigating agency as per directions of the learned trial Court, with the result that after submission of challan the accused/applicant, on Ms own accord, has remained absent without any proper intimation to the Court and prima facie, misused the concession of the bail, granted to him as such, he does not deserve any concession at all. Keeping in view the above reasons, by short order, bail application was dismissed and these are the reasons far the same. (MAA) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 897 Present: All MUHAMMAD baloch, J. MIR SHAH JAHAN and another-Appellants versus STATE-Respondent Criminal appeal No. 263/1993 partly accepted on 6.7.1995 (i) Criminal Trial- —It cannot be said that all witnesses must be produced by prosecution and non-production of two of injured persons render evidence of remaining four injured witnesses, as unreliable. [P. 899] A (ii) Pakistan Penal Code I860 (Act XLV of i860)-- -—S. 324/148/149—Conviction-Challenge to--Appreciation of evidence—Day time occurrence-Six persons victim of fire Arm injuries-Out of Six injured witnesses four produced at trial—Not necessary to produce all witnesses at trial-Witnesses implicitly implicating appellants-Nothing on record to show that injured would falsely implicate appellants and exonerate their real enemies-Dispute over possession of shop admitted, in a way by appellants at trial-Medical evidence certifying injuries resulted of firing, and corroborative to ocular evidence-Appeal merits no consideration-Appeal dismissed. [Pp. 899,900 & 901] B, C, D, E, F & G (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 327/148/149-Sentence-Quantum of-Father and son, together in Jail for 4 years had suffered privation from their family-Sentence already undergone, by appellants be treated as sufficient in place of seven years awarded by trial Court with enhancement of fine from Rs. 25,000/- to Rs. 50,000/- will meet ends of justice-Sentence altered. [P. 901] H Al-Haj Farid Gul Khan, Advocate for Appellants. Mr, Habib-ur-Rasheed, Advocate for State. Date of hearing: 4.7.1995. judgment The appellants were convicted and sentenced to undergo imprisonment for 7 years and pay fine of Rs. 25,000/- each, in default whereof they had to undergo further R.I. for 3 months. In case of the recovery of fine, it was to be given to injured Haji Jalil Khan under section 544 Cr.P.C. Benefit of section 382-B Cr.P.C. was also awarded to the appellants. 2. The appellants were charged for having formed unlawful assembly and committed the offence of Qatle-Amd by firing at and injuring P.Ws. Haji Jalil Khan, Ahmed Khan, Muhammad Afzal, Bakhtamir, Jalal Khan and Azam Khan when the appellants were trying to take over forcible possession of shops of a mosque. The case was tried by 6th Addl. Sessions Judge (South ) Karachi, who passed the judgment on 25.9.1995. 3. The prosecution story in nutshell is to the effect that P.W. Bakhtamir was present in his shop, which is adjacent to Ibrahimi Mosque when accused Mir Shah Jahan, Mir Than, Khursheed and Haji Gul, alongwith 3/4 other persons duly armed came and wanted to take over forcible possession of the shops of Ibrahimi Mosque. On resistance, the started firing from their weapons as a result of which Bakhtamir, Haji Jalil, Ahmed Khan, Muhammad Afzal and Azam Khan received fire arm injuries. Bakhtamir received injury on his spinal-cord, and has been rendered crippled for the rest of his life. Many persons of Mohalla had reached at the spot and the accused had to leave. The injured were brought to the hospital w.here the police reached and recorded the statement of Bakhtamir, which was transformed into F.I.R. After investigation, the present appellants were arrested. The case was challaned against the appellants as well as co-accused Haji Gul and Mir Nabi (Mir Than), who remained abscondors and case against them has been kept on dormant file. By this appeal the appellants have challenged the findings of the trial Judge and have prayed that conviction against them be set-aside. Learned counsel for the appellants raised many points but important for the purpose of discussion were: (1) that out of six injured persons, only four have been examined while the evidence of the two injured witnesses has been omitted, and that they were not tendered for cross-examination; (2) that the evidence comprised of ocular evidence only. It should not have been believed, the witnesses were interested and hostile to the accused; and (3) that there were material contradictions in the evidence, which rendered the evidence of the witnesses totally unbelievable. 4. Coming to the first point, raised by the learned counsel for the appellants, it cannot be said that all the injured witnesses must be produced by the prosecution and non-production of the two of the injured persons rendered the evidence of the remaining four injured witnesses as unreliable. Learned counsel could not carry out this point anymore and did not support it by any decided case. In all probability those two injured witnesses could not be made available for examination in the trial Court. The witnesses are all Pathans originally belonging to NWFP. Besides, there is no cogent reason to say that due to non-examination of the two injured witnesses the evidence of the remaining four injured witnesses becomes unreliable. The evidence of the fou injured witnesses holds the field of its own, and the Court has to see if they are truthful witnesses. Analysing their evidence under the principles of appreciation of evidence, the Court has to form its opinion in respect of the reliability or otherwise of these witnesses. I do not find any substance in this point raised by the learned counsel for the appellant. The evidence of the four injured witnesses is to be examined in the context of the facts and circumstances of this case and should be appreciated irrespective of the fact that two other injuried witnesses were not produced. The trial Judge has not committed any mistake in considering the evidence of these four injured witnesses independently for the purpose of deciding this case. Besides, there s nothing on record to suggest that these four injured witnesses had any reason to falsely implicate the appellants. They being injured, their presence on the spot is also proved. Therefore, the trial Court has rightly believed these witnesses. 5. The next point raised by the learned counsel for the appellants is to the effect that the evidence in this case comprised of only ocular evidence, thereby meaning that it required corroboration from circumstantial evidence or some other independent source. I do not agree with the learned counsel on this point as well. The 4 injured persons, who were present at the scene of offence, had received injuries at the hands of the appellant and two absconding accused. The reasons for this dispute have been spelt out from he evidence that there was an attempt on part of accused for taking over the possession of shops of the mosque. These P.Ws. have ot been shown by way of any evidence before the trial Judge to be so interested to implicate the appellants falsely. The four witnesses, who have been believed by the trial Judge are all injured, one of them Haji Jalil critically wounded, by a bullet at his spinal-cord resulting in his perpetual invalidity. He was brought on stretcher at the time of his examination before the trial Judge. All the four ; witnesses implicitly had implicated the present appellants to be those who .'had fired at them with fire arms. Nothing has been brought on record to |show as to why these injured witnesses shall implicate these appellants I iaisely, thereby exonerating their real enemies, who had tried to kill them. ,'The learned counsel tried to develop this point by arguing that the j appellants belonged to one ethnic group while the complainant party I belonged to another, and that there was fight on account of ethnic dispute. It is surprising that this contention is not borne out from any evidence on the record. No suggestion in cross-examination is put to the complainant j Bakhtamir or any of the other P.Ws. On the contrary, it was suggested in j cross-examination of P.W. Ahmed, that the disputed shop was in possession ! of the appellant Mir Shahjahan prior to the construction of Madarsa and that P.W, Ahjoaext P. W. Ji&kktassir w&ste^,^ t&ke fareiftk possession of the shop from appellant, Mir Shahjahan. Thus the dispute in respect of the possession of the sop has been admitted in a way, by the appellants at the time of trial. Now in order the wriggle out of the earlier stand, the contention of ethnic dispute has been raised. Even otherwise, there being no evidence on this point a lame attempt has been made to establish this point. Therefore evidence of the four injured P.Ws requires no further E corroboration, as each, witness has corroborated the other. 6. As regards the third point, I do not find any material contradictions in the evidence of the witnesses, who are victims of firing at the hands of the appellants and the narration of the incident given by each of them is in their own words and each one of them on the material aspect of the case has implicated the appellants to have fired at them at the time of incident and there can be no reason to suspect the words of the injured witnesses whose injuries have been certified to be the result of the fire arm njuries by the Medical Officer. Lastly, the learned counsel for the appellant insisted that time of occurrence has been given by some of the witnesses to be 3.30 p.m. while the others have given as 5.30 p.m. For this minor discrepancy, I do not consider the evidence of the injured eye-witnesses, who are otherwise disinterested and not inimical to the appellants to be nreliable. The witnesses may not have comprehension of telling the exact time of the incident as they appear to be not highly literate. 7. The learned counsel for the State Mr. Habib-ur-Rasheed has supported the judgment of the trial Judge but has suggested that the appellants are father and son and they have already undergone the sentence of 4 years and according to the learned counsel appearing for the State, the sentence undergone will be sufficient punishment for them in this case and will serve the interests of justice. 8. After considering carefully the arguments advanced by the two counsel, and having gone through the record of the case, I find that the appellants have failed to advance any cogent reason for setting aside their conviction and sentence. Therefore, the appeal merits no consideration and the same is, therefore, dismissed. However, coming to the point of sentence, I agree with the contention of the learned counsel for the State and feel that sentence already undergone which is about 4 years, is sufficient punishment for the appellants, who have also suffered the privation from their family, being father and son together in jail for about 4 years. Nonetheless, I would tike to enhance the amount of fine awarded to the appellants by the trial Court to meet the ends of justice. It is, therefore, ordered that the sentence already undergone by the appellants be treated as sufficient imprisonment, in place of the 7 years sentence awarded by the trial Court, and in addition to that each appellants is ordered to pay a sum of Us. 50,OQO/- (Rupees fifty thousand) as fine. In case of default in payment of fine, each appellant to further undergo imprisonment for 6 months. In case the fine is realised the entire amount of fine be paid to P.W. Haji Jalil Khan by way of compensation under section 544 Cr.P.C. With this alteration in the sentence, the appeal is dismissed. (MAA) Appeal partly accepted.

PLJ 1998 Cr PLJ 1998 Cr. C. (Lahore) 901 (Rawalpindi Bench) Present: ahmad saeed awan, J. ABDUL SATTAR and another-Appellants versus STATE-Respondent Criminal Appeal No. 93/1994 decided on 23,4.1995. Pakistan Pena! Code 1860, (Act XLV of I860)- —-S. 337-D, F-III, IV/324/34-Conviction--ChalIenge to-Appreciation of evidence-Motive as alleged unbelievable, not proved-During trial, I.O. stating one appellant (Abdul Sattar) was declared innocent with consent of parties, his this piece ol evidence remained un-challenged-- Complainant having knowledge about declaring appellant (Abdul Sattar) innocent during investigation neither moved hierarchy of police for reinvestigation nor filed private complaint or agitated at any stage—No recovery witness produced to prove recovery-Incriminating weapon not sent to Forensic Science Laboratory-Prosecution evidence of catch holding of two 20 years youth, by one, appellant aged 30 years, at a time, not believable-Occurrence taking place in front of mosque at 2 P.M. in a thickly populated area, non production of any independent witness by either party means concealing of facts by parties-Evidence to extent of appellant (Abdul Sattar) and acquitted co-accused not reliable-Appeal of appellant (Abdul Sattar) is accepted and acquitted of charges-Criminal Revision against acquitted co-accused is rejected-As observed by trial Court, it was a show of youth-Though recovery of Churri from appellant (Zubair) is not proved, it is evident he alone inflicted injuries to both injured PWs, hence was rightly convicted-No interference needed except all sentences shall run concurrently instead of consecutively-With this modification appeal to his extent was disposed of. [Pp. 907 to 909] E, F, G, H, I, K, L & M Ipse-dixit of Police- —Though report of Investigation Officer is not binding on Court, yet it cannot be ignored when made at trial stage under oath- [P. 907] C Criminal Trial-Witness- —It is not necessary that prosecution should produce each witness, but witness who is required to be produced to resolve issue involved if not produced damages version of party who withholds such witness [P. 906] B Motive— —Motive claimed was election rivalry between two groups—Uncle of injured prosecution witness contested election, against brother-in-law of one accused, before 2 years-Both election contestants were residents of same vicinity, nothing happened among groups during period of 2 years-Uncle of injured, who contested election was named as prosecution witness was not produced at trial, his non-production has demaged prosecution version-Motive in the circumstances was not believable. [P. 906] A Qanoon-e-Shahadat Order, 1984- —Procedure of swearing on Holy Quran (oath proceedings) is not applicable in criminal proceedings under Article 163 of Qanoon-e-Shahadat, 1984. [P. 907] D PLD 1990 SC 83 relied. Sh. Zamir Hussain, Advocate for Appellants. Rqja Muhammad Ayub Kiani, Advocate for State. Date of hearing: 9.4.1995. judgment -Abdul Sattar, Muhammad Zubair appellants sons of Alam Khan and Alam Khan son of Muhammad Hussain accused (since acquitted) faced trial under Section 337/324/34 PPC before the learned Assistant Commissioner/ Magistrate Section 30, Attock who vide judgment dated 25.7.94 convicted Abdul Sattar and Muhammad Zubair appellants as under : Abdul Sattar 1. He was sentenced for the offence under Section 337-D for enabling his co-accused Zubair to inflict two 'jurh jaifah' injuries on the person of Muhammad Rizwan to pay Rs. 58,537/- (two times) as 'arsh' or in default of payment of 'arsh' total amounting to Rs. 1,17,074/- and to undergo simple imprisonment till payment thereof and undergo five years R.I. for each offence as 'tazir'. 2. He was sentenced under Section 337-F (iv) for causing one jurh mudihah on the person of Muhammad Rizwan to pay 'daman' at the rate of Rs. 10,000/- or in default of payment of 'daman' to undergo S.I. till payment thereof and to undergo two years R.I. as 'tazir'. 3. He was sentenced under Section 337-F (iv) for causing 'jurh mudihah' on the person of Muhammad Zaheer and to pay Rs. 10,000/- as 'daman' or in default of payment to undergo S.I. till payment thereof and to undergo two years R.I. 4. He was sentenced under Section 337-F (iii) for causing 'jurh mutalahimah' on the person of Muhammad Zaheer to pay Rs. 10,000/- as 'daman' or to undergo simple imprisonment till payment thereof and to undergo one year R.I. as 'tazir. The sentences referred at (1) and (2) above shall run consecutively while the remaining sentences shall run concurrently. The amount Rs. 1,17,074 realized as 'arsh' and 'Daman' referred above shall be paid to Muhammad Rizwan injured while Rs. 20,000/- was ordered to be paid to Muhammad Zubair accused. The appellant was however given benefit of Section 382-B Cr.P.C. Muhammad Zubair 1. He was sentenced for the offence under Section 337-D for causing two jurh jaifah injuries on the person of Muhammad Rizwan to pay Rs. 58,537/- (on two counts) as 'arsh' or in default of payment of 'arsh' total amount to Rs. 1,17,074/- and to undergo simple imprisonment till payment thereof and to undergo five years R.I. for each offence as tazir. 2. He was sentenced under Section 337-F (iv) for causing one jurh mudihah on the person of Muhammad Rizwan to pay 'daman' at the rate of Rs. 10,000/- or in default of payment of 'daman' to undergo S.I. till payment thereof and to undergo two years R.I. as ' 3. He was sentenced under Section 337-F (iv) for causing 'jurh mudihah' on the person of Muhammad Zaheer and to pay Rs. 10,000/- as 'daman' or in default of payment to undergo simple imprisonment till payment thereof and to undergo two years R.I. as 'tazir'. 4. He was sentenced under Section 337-F (iii) for causing 'jurh mutalisMmafa on the person of Muhammad Zaheer and to pay Rs. 10,000/- as "daman" or to undergo simple imprisonment till payment thereof and to undergo one year R.I, astazir'. The sentences referred at (1) and (2) above shall run consecutively while the remaining sentences were ordered to run concurrently. The amount Rs. 1,17,074/- realized an 'arsh' and 'daman' referred above was ordered to be paid to Rizwan injured while Rs. 20,000/- shall be paid to Muhammad Zubair injured from the amount of 'arsh' and 'daman' realized from Zubair accused. He was also given benefit of Section 382-B Cr.P.C. However, Muhammad Alam son of Muhammad Hussain was acquitted of the charge. 2. Criminal Appeal No. 93 of 1994 has been filed by Abdul Sattar and Muhammad Zubair appellants challenging their conviction and sentence whereas Criminal Revision No. 88/1994 has been filed by Muhammad Zaheer injured PW1 complainant for the enhancement of sentences and against the acquittal of Akin Khan. This judgment will dispose of both these matters. 3. The allegations against the accused according to Muhammad Zaheer injured PW1 complainant of the case are that oa 20.9.1993 at 1.45 p.m. he alongwith his paternal cousin Rizwan was gjisj, to Mosque to offer; prayers. When they reached in front of tiie house; of Abdul Kfaaliq, all the three accused appeared. Alam Khan (accused since acquitted) raised lalkard to catch hold of Zubair and Rizwan. Alam Khan caught hold of Muhamma4 Rizwan from his front side and Muhammad Zubair appellant caused a churri blow on the belly of Rizwan. When Zaheer PW tried to rescue Zubair appellant inflicted a churn blow on the left shoulder of Zaheer, Then Abdul Sattar accused caught hold of Zaheer while Zubair appellant caused a churri blow on the back of Zaheer. Thereafter, Abdul Sattar appellant caught hold of Rizwan who was inflicted two churri blows on his right shoulder and left side of back by ubair appellant. On hearing noise raised by the injured PWs, Muhammad Saleem and Pervaiz PWs attracted to the spot and the accused left the spot. Motive behind he scene was stated to be the election rivalry between the two groups. 4. The prosecution in support of its case examined as many as six witnesses. Muhammad Zaheer injured PW1 is complainant of the case. PW2 Muhammad Rizwan is another injured eye witness. PWS Muhammad Pervaiz is also an eye witness who reached at the spot on hearing the noise raised by PW1 and PW2 in an injured condition. Doctor Muhammad Tufail PW4 medically examined Muhammad Zaheer PW1 and Rizwan PW2. Ghulam Shabbir PW5 ASI recorded the formal FIR Ex., PA/1. PW 6 Muhammad Riaz ASI recorded the statement of Muhammad Zaheer injured PWl Ex, PA in Civil Hospital Attock, prepared injury statement Ex, PG and PF of both the injured, prepared site plan Ex, PI, took into possession churri PI u ed in the occurrence vide Memo Ex, PJ, investigated the case and challenged the accused. During investigation, he found Abdul Sattar convict/appellant innocent and placed him in column No. 2 of the challan. The prosecution gave up Sarwar, Saleem and Muhammad Khan PWs as unnecessary. 5. The accused persons when confronted, denied the charge and claimed to be involved innocently. In their statements under Sections 342 and 340 (2) Cr. P.C. deposed that the victims are known for their quarrelsome and domineering conduct and that they have a quarrel with one Nadeem etc. in which they were injured. However, they did not produce any defence evidence. Learned counsel for the appellants contended that the order passed by the learned trial Court is based on surmises and conjectures; Alam Khan being father of the two appellants/convicts was innocently involved as is customary particularly in rural areas to involve whole male family members. Abdul Sattar was declared innocent by the police with the consent of both the parties; the eye witnesses are real cousins and the evidence of PWS is not confidence inspiring as admittedly he reached at the spot after the occurrence; the recovery of churri P/l has not been proved beyond any shadow of doubt and the Investigating Officer in examination-in-chief deposed that Abdul Sattar was declared innocent with the consent of both the parties during the investigation. Further contended that there are material improvements and contradictions in the statements of the PWs and the learned trial Judge without putting the evidence of both the sides in jaxta-position and without giving weight to the defence version illegally convicted the accused and the punishment awarded to the accused/convicts 7. On the other hand, learned counsel for the complainant vehemently contended that the manner in which Abdul Sattar convict during investigation was declared innocent is not approved by the superior Courts; the appellants have not come with clean hands; Muhammad Rizwan injured PW remained in hospital for more than 14 days; the injured PWs are the natural witnesses; FIR was promptly lodged without any delay; the evidence of PWS Pervaiz is relevant under Articles 19 and 20 of Qanoon-e- Shafaadat; the prosecution witnesses have fully supported the prosecution version; the sentence awarded by the learned trial Court is not in accordance with Section 337-W PPC as the ocular account has been corroborated by the medical evidence. 8. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record with their able assistance. 9. So far as the motive is concerned, the prosecution claimed it as election rivalry between two groups. Abdul Khaliq brother-in-law of Alam Khan (since acquitted) contested election against one Saleem uncle of the injured PWs about 2\ years prior to the occurrence belonging to the group of the complainant party. The candidates who contented election against each other also reside in the same vicinity and nothing happened among the groups prior to the occurrence after election during the period of 2 years. If there would have been any political rivalry based on election basis, the occurrence would have taken place much earlier. There seems no plausible reason to believe in the motive as mentioned in the FIR because Muhammad Saleem who lost election with Abdul Khaliq, brother-in-law of Lai Khan could have the grudge or vengeance against Abdul Khaliq and not the party of Abdul Khaliq have any grievance against Muhammad Saleem and his groups who lost election. Muhammad Saleem would have been the natural witness as he was cited as PW but he has not been produced by the prosecution though it is not necessary that the prosecution should produce each witness but the witness who is required to be produced to resolve the issue involved if not produced damages the version of party who with holds such witness. Hence, the motive is not proved. 10. So far as the injuries are concerned, Muhammad Zaheer PW1 sustained two injuries. Injury No. 1 was declared 'Jurh Mudihah' while injury No. 2 was declared 'Jurh Mutalihamah' whereas Muhammad Rizwan PW2 sustained one stab wound on his belly while another stab wound on his back and a wound with sharp edged weapon on right shoulder. Injury No. 1 and 2 were declared as 'Jurh Mudihah'. All these injuries were caused with sharp edged weapon. Abdul Sattar accused has been attributed the role of caught holding of the injured person to enable Muhammad Zubair convict to inflict the injuries to both the injured PWs. PW6 Investigating Officer stated in examination-in-chief that during investigation in the presenceof both the parties with their consent he declared Abdul Sattar appellant innocent and the fact was approved by the SHO as well as DSP concerned. Neither PW6 was declared hostile nor any question or suggestion was put to him by the prosecution. Though the report of the Investigating Officer is not binding on the Court yet cannot be ignored when made at the trial stage under the oath. The learned counsel for the complainant relied upon case titled Mst. Bibi Versus Nisar Ahmad Khan (PLD 1990 S.C. 83) wherein it has been ob served that procedure of swearing on Holy Quran (oath proceedings) is not applicable in criminal proceedings under Article 163 of the Qanoon-e- Shahadat (10 of 1984). 11. I am afraid, the law laid down in the aforementioned case is not applicable to the facts of the case in hand. As the observations were made by their Lordships during the proceedings of a bail matter while in case in hand the Investigating Officer made the statement during the trial being under oath; even the method during the investigation might be against the law at this stage firstly his evidence cannot be ignored when the prosecution neither raised any objection to his this piece of evid nce nor declared him as hostile. Even the learned trial Court did not put any question to the witness though the trial Court was competent to clarify the issue. The omplainant party knowingly that Abdul Sattar has been declared innocent neither moved hierarchy of the police for re-investigation nor filed private complaint under Section 200 PPC or agitated at any stage though the appellants moved an application for re-investigation of the case. 12. The occurrence took place on 20.9.1992 and the accused/appellants were arrested on 24.9.1992. Muhammad Zubair convict, as deposed by the PW6 Investigating Officer, during the investigation produced Churn P/l before him on 24.9.1992 which was taken into possession vide Memo Ex., PJ. The contention of the learned counsel for the appellant carries weight that the recovery of churn PI has not been proved beyond any shadow of doubt as neither any recovery witness was produced before the Court nor the report of Forensic Science Laboratory has been submitted that whether the incriminating weapon was ever stained with human blood or not This aspect of the case makes the recovery of churn doubtful. 13. According to the medical report and ocular account the two injured PWs sustained five injuries in total on their persons. Learned counsel for the complainant contended that one accused cannot inflict such five injuries to two PWs. Abdul Sattar appellant has been attributed the role of catch holding the injured persons to enable the principal accused Zubair to inflict injuries. Muhammad Zubair as well as Rizwan injured PWs are of 20 years age while Abdul Sattar is of 30 years. It is unbelievable that Abdul Sattar could have caught hold of both the injured PWs at a time; similarly, as alleged that Alam Khan caught hold of Rizwan when Zubair inflicted one njury to him is unbelievable. 14. It may be observed that the occurrence took place in a thickly populated area in front of a Mosque at 2.00 p.m. Neither the complainant party nor the appellants' party have produced a single independent witness in support of their version. The injured PWs as well as the accused/convicts appeared as their own witnesses though both the parties claimed to belong different political groups of the area but none cared in the area to support the version of any one of them, meaning thereby the facts of the case have been concealed by both the parties. 15. In case Zareen Shah and two others Versus The State (PLD 1974 SCMR 376) in the similar circumstances alleging that one accused caught hold of the deceased and the principal accused stabbed the deceased, on the fact of the case the accused was given benefit of doubt. 16 As already observed, the occurrence took place in front of the Mosque and thickly populated area, in the ordinary course most of the people were expected to be present at the spot; from the attitude of residents of the vicinity, it is necessary to bear in mind that in rural areas where such offence is committed as a result of existing fiction and duet, family fueds or merely in order to satisfy the proverbial age, independent villagers are always reluctant to come forward for evidence purposes. In such circumstances, the task of finding out as to which of the persons participated in the crime is difficult one but the Courts have always tried to swift the truth from the falsehood and I would also see that if there is a slightest doubt about the presence of any accused person, he must get the benefit thereof. 17. I have gone though the evidence on record and in the light of dictum laid down in case of Riaz Versus State (1960 S.C. 367), I am of the view that the evidence of injured PWs with regard to Lai Khan and Abdul Sattar cannot be relied upon without some sort of independent evidence as observed by their Lordships in supra case; corroboration has to be sought from other circumstances as the evidence should, however, be such which points to the inference that the accused whose case is being considered did not participate in the commission of offence I, therefore, hold that neither Alam Khan nor Abdul Sattar convict took part in the occurrence and have been involved in the case just to entangle the whole family. In fact, as observed by the learned trial Court it was a show of youth on both sises and the elders did not participate. So far as Muhammad Zubair convict is concerned, inspite of the fact that recovery of churn P/l from the convict has not been proved beyond any shadow of doubt and other short comings of the prosecution, I am of the considered opinion, as already observed, being a show of youth; the convict alone inflicted the injuries to both the injured PWs and the learned trial Court rightly convicted and sentenced him. The sentences awarded by the learned trial Judge to the extent are adequate and need no interference and are confirmed except all the sentences shall run concurrently instead of consecutively. Further, the convict shall be entitled to full relief under Section 382-B Cr.P.C. as ordered by the trial Court. 18. In view of what has been stated above, the appeal succeeds to the extent mentioned above and I find no force in the revision petition which is accordingly dismissed. Abdul Sattar appellant is on bail. His surety bonds shall stand discharged. <MAA) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. (Quetta) 909 (DB) Present: AMIR-UL-MULK MENGAL AND JAVEDIQBAL, JJ. STATE THROUGH DEPUTY DIRECTOR (FIA)-Appellant versus ZAHID NADEEM and 4 others-Respondents Criminal Acquittal Appeal No. 16 of 1995 decided on 17.10.1995 (i) Interpretation of Statutes-- —-It is duty of Courts to interpret different Sections and Sub-Sections in a Statute-It appears when Shariat was declared as governing law, government thought it proper to extend right of appeal to a person aggrieved against order of acquittal-Word "Person aggrieved" has been intentionally used so as to include agencies of Government." [P. 914] C (ii) Maintainability- —-S. 417 (2-A) Cr.P.C. read with Pakistan Penal Code, 1860, S. 420/467/ 468/47l/482/483/109~Appeal against acquittal-Preliminary objection toaintainability of-Whether Deputy Director (FLA) falls within ambit of aggrieved person" as mentioned in S. 417 (2-A) Cr.P.C.-Deputy Director (FLA) has jurisdiction to collect information and take legal action against persons indulging in anti-social activities, like manufacturing spurious drugs and selling in arket-When such a person is acquitted by rial Court naturally Deputy Director (FIA) would be aggrieved person- Appeal maintainable. [P. 915] E, F PLD 1955 FC 79, PLD 1966 SC 971, PLD 1979 Pesh 174, 1993 P.Cr. LJ 2285 ref. (iii) Words and Pharases-- —"Person"-Meanings of-Section 11 of Pakistan Penal Code, General Clauses Act, chamber's 20th Century Dictionary, Black's Law Dictionary "Aggrieved Person"-meanings of-A Person aggrieved contemplated by Federal rules : Governing standing to object to alleged illegal search and seizer is one who is victim of search and seizer as distinguished from one who claims prejudice only through the use of evidence gathered at search directed against some one else- [Pp. 913 to 915] A, B & D Black's Law Dictionary, 5th Edn. ref. Deputy Attorney General for the State. Sheikh Abdul Hameed, Advocate for Respondent No. 1. Sheikh Zia Ullah, Advocate for Respondents No. 2 to 5. Date of hearing 14.6.1995. judgment Amirul Mulk Mengal, J.--This appeal has been filed under section 417 Cr.P.C. by the Deputy Director (FIA) against the order dated 31.10.1994 passed by learned Sessions Judge, Quetta whereby he was pleased to acquit the accused persons. Brief facts of the case are that on receipt of certain information Assistant Director FIA conducted a raid on 21.10.1991 and thereafter recorded F.I.R. No. 4 of 1991 with Police Station FIA (Crimes) Quetta under sections 420/467/468/471/482/483 read with section 109 PPC. The case was investigated and after usual investigation challan was submitted under sections 420/467/468/471/482/483 read with section 109 PPC. Charge was read over to the accused persons on 18.12.1992 to which all the accused PLEADED NOT GUILTY and claimed trial. The prosecution led evidence and at the conclusion of trial learned Sessions Judge, Quetta in detailed order acquitted the accused persons. Resultantiy feeling aggrieved of the acquittal order this appeal has been preferred under section 417 Cr.P.C. in this Court. At the very outset Mr. Ziaullah Sheikh counsel for the acquitted accused strongly urged that the appeal is not maintainable as the same has not been competently filed. In order to support his objection learned counsel raised various legal questions as to maintainability of the present appeal. The gist of arguments as advanced may be summarised as under :-- (i) Under section 417 Cr.P.C. it is only Provincial Government which has been conferred a right to direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal. In the present case neither the Provincial Government has directed the Public Prosecutor to present an appeal against acquittal nor the appeal has been filed by Public Prosecutor therefore, the same is not maintainable. (ii) An appeal can be filed only if such a right has been expressly conferred by law. The only section under Criminal Procedure Code regarding a right of appeal against an order of acquittal is section 417. This right has recently been expanded to any person aggrieved of an order of acquittal. (iii) The Deputy Attorney General as a Public Prosecutor could file an appeal against an order of acquittal only when the Federal Government had the right to file an appeal. The counsel further submitted that any of the special laws or other laws where the right of appeal has been conferred upon the Federal Government it can direct Deputy Attorney General to file an appeal against acquittal but the present appeal has been filed under section 417 Cr.P.C. where no such right has been conferred upon the Federal Government, therefore, even if any direction had been made by the Federal Government, the same could not have been filed under section 417 Cr.P.C. Learned Advocate General Balochistan invited our attention to the fact that it is only the Provincial Government or now a private person i.e. the complainant who have got right to file an appeal against an order of acquittal. In this respect learned Advocate General referred to section 492 Cr.P.C. and submitted that it is again the Provincial Government who may appoint, generally, or in any case, or for any specified class of cases, in any local area, one, or more officers to be called Public Prosecutors. Learned Advocate General also out-lined the history of section 417 Cr.P.C. and argued that in case of Qadir Bakhsh vs. The Crown (PLD 1955 FC 79) a similar question arose when the Chief Court on an appeal filed by Advocate General Sindh entertained the appeal and set aside acquittal order converting it by conviction but the Federal Court held that since Advocate General of Sindh has not been appointed under section 492 Cr.P.C. as Public Prosecutor, therefore, the appeal had not been competently filed. On the contrary learned Deputy Attorney General argued as under: - (a) The Deputy Attorney General teas- been appointed as Public Prosecutor on behalf of the State, therefore, he is competent to file an appeal against an order of acquittal particularly in cases investigated by any Federal Agency like F.I.A. It was secondly argued that by Ordinance XXXIII of 1985 namely Central Law Officers (Amendment) Ordinance, 1970 (VII of 1970) was further amended in which section 4A was inserted which empowered a Deputy Attorney General to institute, file and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or Tribunal, including a Special Court constituted under any law. The counsel for the parties relied on several judgments while giving the history of the amendment made in Section 417 Cr.P.C. According to the respondents' counsel first amendment in 417 Cr.P.C. was made in 1937 under which the word 'Local Government' was substituted by the word 'Provincial Government'. The second amendment came in 1972 where complainant was introduced and procedure was laid down how the complainant after special leave to appeal granted, by the High Court, can file an appeal from the order of acquittal. The time limitation for such appeal was fixed as 60 days, which was further amended to 30 days and lastly Sub-Section (2) of Section 417 was amended by adding Section 2 (A) where legislature allowed a person aggrieved by the order of acquittal passed by any court other than a High Court to file an appeal within 30 days against order of acquittal. The respondents' counsel referred to PLD 1955 Federal Court 79, PLD 1966 SC 971, PLD 1979 Peshawar 174 and 1993 P.Cr.LJ. 2285. Similarly all the judgments cited by learned Advocate General are prior to the last amendment made in Section 417. Those are very pertinent but in these judgments the new Section 2 (A) had obviously not been discussed and Deputy Attorney General mostly relied on Section 2 (A). The thrust of the arguments was that it is only the Public Prosecutor who is competent under Section 417 Cr.P.C. to present an appeal to the High Court if so directed by the Provincial Government. The Deputy Attorney General referred to Central Law Officer (Amendment) Ordinance, 1970 (VII of 1970) and contended that by insertion of Section 4 (A) the Deputy Attorney General has been declared as Public Prosecutor on behalf of the Federal Government to institute, file and conduct any proceedings before any court or Tribunal including a Special Court constituted under any kw. Thus the Deputy Attorney General is declared as Public Prosecutor. However, the controversy still remains because the question requiring determination is who can file an appeal under Section 417 Cr.P.C. after addition of Section 2-A in the said section. From perusal of Section 417 as (embodied after insertion of Section 2-A) the right of appeal has been conferred against acquittal to 3 categories. (1) 417 (1) O.P.C. empowers to Provincial Government to direct the public prosecutor to present an appeal before the High Court from an original or appellate order of acquittal passed by any court other than a High Court. (2) Similarly 417 (2) Cr.P.C. describes the manner in which complainant is granted special leave by the High Court to appeal from the order of acquittal. (3) 417 (2-A) Cr.P.C. which .has been recently introduced confers a right to a person aggrieved by the order of acquittal passed by any court other than a High Court to file an appeal to the High Court. It is thus clear that the authorities cited are not apt because Section 2-A has been added to section 417 Cr.P.C. very recently by Act XX of 1994 and the authorities cited are much prior to the said amendment. From bare perusal of section 417 Cr.P.C. it appears that the right to file an appeal against the order of acquittal was originally limited only to the Provincial Government. This was described as extra ordinary remedy of appeal against acquittal which received a statutory recognition for the first time in 1872 in the interest of public safety peace and order (AIR ALL 439). Its scope was very narrow and it was based on the principle that an acquitted person by competent court should not undergo any further trial for the offence of which he has been acquitted, therefore, none else but only Provincial Government was conferred the right of appeal. However, with the passage of time a complainant was allowed to apply to the High Court for special leave to appeal from order of acquittal and he could file appeal only after satisfying the High Court that leave be granted to him. In case the High Court refused, no appeal from the order of acquittal was competent even to be filed by the Provincial Government as envisaged in 417 (4) Cr.P.C. By adding section 2-A to Section 417 Cr.P.C. the narrow scope was further widened and now it was thought proper that not only the Provincial Government or a private complainant but any person aggrieved by the order of acquittal passed by any court may file an appeal against such order within 30 days. The paramount point, therefore, is to interpret connotation "a person aggrieved". We firstly venture to define the word 'person'. We can take benefit of Section 11 PPC which defines a 'person' as follows :-- A The word persons includes any Company or Association or body of persons, whether incorporated or not". Similarly in the General Clauses Act the 'person' is defined as under :-- "Persons shall include the company or association or body of persons whether incorporated or not". Likewise, Chamber's 20th Century Dictionary defines inter alia 'person' as a human being (Natural person) or a Corporation (Artificial person) regarded as having rights and duties under the law. The Concise Oxford Dictionary describes person inter alia as 'human being (natural) or body Incorporate (artificial) with recognised rights and duties". Similarly in Black's Law Dictionary (5th Edition) 'person' means 'In general usage, a human being (i.e., natural person), though by statute term may include a firm, labor organisations, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers". A person aggrieved has been defined as under :-- "A person aggrieved as contemplated by Federal Rules Governing standing to object to alleged illegal search and seizure is one who is the victim of the search and seizure as distinguished from one who claims prejudice only through the use of evidence gathered at search directed against some one else." From its further perusal it appears that in U.S.A. Foreign Governments otherwise eligible to sue in U.S Courts are persons' entitled to bring treble damage suit for eligible ante-trust violations under Clinton Act. From the commentary on the word 'person' it appears that the courts have held that where imprisonment is mandatory 'person' does not include Corporate Body because Corporate Body or Company is not indictable but it has been simultaneously held that the word 'person' is sufficiently wide to include the Government as representative of the whole community (1877) 1 Bombay 610 & 611. Another argument which is equally important would arise if the word 'person' includes the Government, that if in Sub-section (2-A) of Section 417 Cr.P.C. the person aggrieved included the Government then Sub-section (1) of Section 417 Cr.P.C. would become redundant. It was argued that had that been the intention of Legislature then such amendment should have been made in Sub-section (1) of Section 417 Cr.P.C. or most appropriately instead of 'any person' the word 'Federal Government' could be added alongwith Provincial Government. The answer can be found to the principle that it is duty of the courts to interpret different sections in a Statute in order to harmonise various sections or Sub-sections in a Statute. As such we cannot extend an interpretation which will not be harmonious, thus rendering Sub-section (1) as redundant to sub-section (2-A) of Cr.P.C. It appears to us that when Shariat was declared as the governing law, the Government thought it proper to extend right of appeal to a person aggrieved against the order of acquittal. The word 'person aggrieved' has been intentionally used so as to include agencies of the Government. This appeal has been filed by the Deputy Director of FIA, therefore, we need go to the extent of interpreting whether the word 'aggrieved person' includes Federal Government or not. The simple question posed before us would be whether the Deputy Director FIA is a 'person aggrieved' or not. Aggrieved person or aggrieved party has been defined in Black's Law Dictionary as under :-- Aggrieved Party : One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial right, or the imposition upon a party of a burden of obligation". On this touchstone we can unhesitatingly infer that Deputy Director FIA is an aggrieved person because after when he deducted that the appellants with connivance of some Drug Inspectors have been indulging in illegal business of drugs of substandard and spurious drugs thereby causing injury to the general public for which the Deputy Director FIA has a legal obligation to control. There is no cavil that it is included in the duties of the Deputy Director FIA to collect information and to take legal action against such persons who are indulged in anti-social activities like manufacturing spurious drugs and selling it in the market to the general public, therefore, a raid was conducted and investigation started. Hence when such persons have been acquitted of the charge by the trial court naturally the Deputy Director FIA would be aggrieved persons as far as acquittal from such charge is concerned. We have already mentioned that this appeal has not been filed by the Federal Government but by Deputy Director FIA who is a servant of the Federal Government. Keeping in view the definitions mentioned hereinabove we have no hesitation but to hold that Deputy Director FIA is a 'person aggrieved' within the meaning of Sub-section (2-A) of Section 417 Cr.P.C., therefore, the appeal has been competently filed. The same is, therefore, maintainable and has to be decided on its own merits. The preliminary objection upon which arguments were heard and judgment reserved is accordingly decided. The matter now be fixed for hearing on merits for a date in office. (MAA) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 916 (Bahawalpur Bench) Present: MUHAMMAD NASEEM, J. SALEEM HUSSAIN-Petitioner versus STATE-Respondent Criminal Misc. No. 476-B of 1995 /BWP accepted on 19.7.95 (i) Anti Corruption Establishment-Guide Lines on- —Scheme for re-organisation of Anti-Corruption has been incorporated in Guide Book on Anti-Corruption Establishment published by Government of Punjab, Services and General Administration and Information Department on 9.5.1985- [P. 919] C <Ii) Criminal Procedure Code 1898 (Act V of 1898)-- —-S. 497/498 Offence U/Ss. 409/420/468/471 read with West Pakistan Anti-Corruption Rules 1985, rule 8~Bail-Grant of-Whether M.I.C. is competent to pass order for registration of a case, with local police, relating to scheduled offences incorporated in Anti-Corruption Establishment Ordinance 1961-Question of-Under Rule 8 of Punjab Anti-Corruption Establishment Rules 1985, cases relating to offences set forth in Schedule to Ordinance are to be registered by Anti-corruption Establishment under written orders of officers mentioned in sub rule a, b and c of rule-Case should have been registered at the direction of Deputy Commissioner being ex-offlcio Deputy Director of Establishment-­Magistrate is not competent to pass order for registration of such case with local police—Such order of registration of case passed by a Magistrate amounts to transgression of jurisdiction, which offends law and is violative of legal ethics-No direct evidence available to implicate p«titioner~No recovery has been affected-Order passed by Magistrate seems to have been done to project his autocratic authority-Magistrate was warned to avoid such working in future—On merits involvement of accused is a question of further inquiry-Bail allowed. [Pp. 918, 919, 921 & 923] A, B, H, J, K, L, M 1992 MLD 311 ref. (iii) West Pakistan Anti-Corruption Establishment Ordinance, 1961- —S. 3~Investigation or Inquiry-Who is to conduct into—Question of~ Inquiry or investigation of case relating to scheduled offences incorporated in Ordinance can only be conducted by Anti-Corruption Establishment and not by local police. [P. 920] D (iv) West Pakistan Anti-Corruption Rules, 1985-- —-R. 9-Arrest of a Public Servant-Some restrains have been made on immediate and forth with arrest of a Public Servant except those caught as a result of trap—Rule has been incorporated as an abundant caution to inculcate confidence in Public Servants in order to save them from autocratic working of any person in authority who may jump upon them to arrest them. [P. 921] G (v) General, Substantive, Procedured and Special Law-- —-Order of preference-General Law, Substantive or Procedural, is superseded by special Law-­ IP. 923] 1 (vi) West Pakistan Anti Corruption Rules, 1985- —Rule 9-Registration of Anti-Corruption cases-Central idea-Explanation thereof-Wisdom behind registration of Anti-Corruption cases regarding scheduled offences directly at establishment is, that provision of inquiry before registration of case, has been provided to save reputation and honour of a Public Servant so that he may not go through ordeal as accuse of any other case registered with local police has to face-'There was water tight compartments of jurisdiction with different branches, viz. Local Police, CIA, Legal Branch, F.I.A., Anti-Corruption Establishment/ Department, Task Force, High Way Police, Railway Police, Traffic Police, Intelligence Police, and Anti-Narcotic Cell. If every branch starts working/meddling/interfering according to its whim or desire and their actions are approved there would be administrative chaos in society which is not intention of law." [P. 920] E & F Sardar Muhammad Aslam Afghan, Advocate for the Petitioner. Syed Niaz All Shah, Advocate for the State. Riaz Ahmad A.S.I. alongwith Police file. Ghazi Aman Ullah Magistrate 1st Class in person. Date of hearing: 19.7.1995. judgment Muhammad Zubair Saleemi Headmaster Government High School Kalab Tehsil Ahmadpur East District Bahawalpur submitted an application against Saleem Hussain petitioner-accused (son of Ghulam Sarwar) Junior Clerk of the same High School before Ghazi Aman Ullah Extra Assistant Commissioner/Magistrate 1st Class Ahmadpur East getting an order passed for the registration of a case. He alleged that Saleem Hussain being the Clerk in the School had misappropriated G.P. Fund of Shabbir Ahmad Naib Qasid to the extent of Rs. 3600/-, Abdul Malik EST to the tune of Rs. 9067/-, Muhammad Shafi Laboratory Assistant to the extent of Rs. 9000/- and Ghulam Nabi SV teacher to the tune of Rs. 12000/-. The total amount comes to Rs. 33,667/-. He requested for the registration of the case. Ghazi Aman Ullah Extra Assistant Commission/MIC Ahmadpur East District Bahawalpur sent the complaint to the SHO P.S. Sadar Ahmadpur East for the registration of the case under sections 409/420/468/471 PPC as according to him the perusal of the complaint made out the prima facie existence of the said offences. Consequently FIR No. 78 dated 5-4-1995 stands registered at P.S. Sadar Ahmadpur East district Bahawalpur under sections 409/420/468/471 PPC. Saleem Hussain petitioner was arrested. However, no amount has been recovered from him. He has been sent to the judicial lock up. The investigation was conducted and the matter was sent to the Special Judge Anti-Corruption Bahawalpur. The bail application of Saleem Hussain has been dismissed by the Special Judge Anti-Corruption Bahawalpur who has filed, this petition before this Court to try his luck in the matter. 2. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. Learned counsel for the petitioner has argued that under rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985, Ghazi Aman Ullah EAC/MIC Ahmadpur East was not competent to pass the order of registration of the case and that under section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961, the inquiry or investigation could be conducted by the Anti-Corruption Establishment and not by the local police. He raised the plea that the offences under sections 409/420/468/471 PPC are included in the Schedule to the Pakistan Criminal Law Amendment Act, 1958 and the case could be registered at the Anti-Corruption Establishment at the best and that also at the direction of the Deputy Commission as the ex-officio Deputy Director Anti-Corruption Bahawalpur. He maintained that without any inquiry the case has been got registered at local police station without the legal justification were the same could not be registered. He continued that general type of allegation in the complaint is nothing enough in the matter and the involvement of this petitioner can safely be held to be that of further inquiry especially when the bills have to be signed by the Headmaster/complainant and passed by the District Accounts Officer Bahawalpur where on trifle matters objections are raised. On the contrary learned State counsel was not able to reply with respect to the objections raised by the learned counsel for the petitioner towards the competence of Ghazi Aman Ullah Magistrate 1st Class Ahmadpur East for passing the order for registration of the case and the registration of the case at P.S. Sadar Ahmadpur East and holding of investigation by the local police. He argued that the offence under section 409 PPC falls within the prohibitory clause and for that reason the concession of bail has rightly been refused by the Special Judge Anti-Corruption Bahawalpur In iny view the assertions raised by the learned counsel for the petitioner must prevail which have the legal weight. It would be convenient to reproduce as under rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 :-- 8. Registration of cases.--(l) Criminal eases shall be registered by the Establishment ualer Prevention pf Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. (2) Criminal cases shall be registered against accused public servants under written orders of officers of Establishment mentioned below:-- . (a) Public servants in EPS 1-16 Not blow a Deputy Director. (b) Public servants in Not below an Addi- BPS 17 and 18 tional Director. (c) Public servants in Director. EPS 19 and above. Provided that no case shall, however, be registered by the Director against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and other officers of BPS-20 and above without the prior permission of the Governor." The relevant portion of section 3(1) of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 reads as under:- "Constitution and powers of the Anti-Corruption Establishment: (1) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an Establishment to be known as the Anti- Corruption Establishment, for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held:" 3. It is the admitted position that sections 409/420/468/471 PPC are the Scheduled offences. In this view of the matter it is a clear cut case of transgression of jurisdiction on the part of Ghazi Aman Ullah Extra Assistant Commissioner/MIC Ahmadpur East in respect of the passing of the order for the registration of the case at P.S. Sadar Ahmadpur East My view is that he seems to have doue so to project his autocratic authority in. the area. Such a working should be avoided by him in future. In the Guide Book on Anti-Corruption Establishment Punjab published by the Government of the Punjab Services and General Administration and Information Department on 9.5.1985 the Scheme for the re-organization of the Anti-Corruption Establishment Punjab has been incorporated wherein one of the Salient Features of the Scheme as mentioned is that the Deputy Commissioners have been made ex-officio Deputy Directors of the Anti- Corruption Establishment. The basic i^ea is to have the Deput Commissioner dealing with corruption cases at the district level instead of the Circle Officer who is the Inspector of police only. By making the Deputy Commissioner responsible for Anti-Corruption Establishment duties he has also been made an officer with added enhanced prestige, respect and authority at the district level. Only the ex-officio Deputy Director of Anti- Corruption who, as expressed above, is none-else than the Deputy Commissioner/Magistrate of the District could pass the order for the registration of the case as he is empowered in the matter under Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. According to the aforesaid section 3 of the West Pakistan Anti-Corruption Establishment Ordinance 1961 the inquiry or investigation of the case under Scheduled offences can be conducted by the Anti-Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the petitioner. At this stage it is relevant to refer to this aspect of the matter that there are water tight compartments of jurisdiction. There are different branches, viz: local police CIA, Legal Branch, Anti-Corruption Establishment/Department, Task Force, Highways Police, Railway Police, FLA, Traffic Police, Intelligence Police and Anti-Narcotics Cell. If every branch starts working/meddling/interfering according to its whim or desire and their actions are approved, I make bold in expressing that there would be administrative chaos in the society which is not the intention of law. It would not be out of place to exemplify that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how a case of Scheduled offences mentioned in the Prevention of Corruption Act, 1947 and the Pakistan Criminal Law Amendment Act, 1958 against a public servant can be registered at P.S. Sadar Ahmadpur East under the administrative control of the Senior Superintendent of Police Bahawalpur who has no concern with the Anti-Corruption Establishment so far as the administrative control is concerned. The wisdom behind the registration of the anti-corruption cases regarding Scheduled offences directly at Anti-Corruption Establishment is that the provision of Inquiry before the registration of the case lias also been provided and it is simply to save the reputation and honour of the public servant. It may be that in the inquiry he stands exonerated before the registration of the case and has not to go through the ordeal as the accused of any other case registered with local police has to face against whom the case may be cancelled under section 169 Cr.P.C. or who may be acquitted under section 249-A Cr.P.C./265-K Cr.P.C. or after holding of a full-fledged trial. About the arrest of a public servant there is Rule 9 of the Punjab Anti- Corruption Establishment Rules, 1985, which reads as under:- "9. Arres^.-The accused public servant may be arrested if his arrest becomes unavoidable during investigation, except in the following case when permission will be accorded by the authority specified below:- (a) Officers in BPS-18 and 19. Commissioner (b) Commissioners and Secretaries to Government, Head of Attached Departments and Officers in PS-20 and above. hief Secretary Provided that no such permission for arrest shall be required after sanction for prosecution has been accorded by the authority prescribed or the purpose under the Criminal law Amendment Act, 1958: Provided further that no prior permission shall be necessary for the arrest of a public servant caught as a result of trap as mentioned in sub-rule (2) of rule 8." A perusal of the aforesaid rule has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servant except those caught as a result of trap. It has been incorporated as an abundant caution to inculcate confidence in the public servants and to save them from autocratic working of any person in authority who may jump upon them to arrest them. Thus the persons in authority have been made cautious. This sword hanging on the heads of the civil servants/public servants must be removed and it is the right time to take note of it and to take exception to such type of working of the said Magistrate 1st Class and the local police. Thus the very order of the registration of the case not only offends the law of the land the same is also violative of the legal ethics. Thereafter on the basis of the aforesaid reasoning and findings the investigation of the case by the local police is transgression of authority being without competence and jurisdiction. 4. It is the-proper stage to refer to the ruling Muhammad Afzal and 2 others vs. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others (1992 MLD 311 (Lahore) according to which the case got registered by an Additional Sessions Judge under sections 409/420/ 466/468/218/471/104/167 PPC and section 5 of the Prevention of Corruption Act 1947 was quashed on the ground that the direction of the Additional Sessions Judge for registration of case against the accused persons (petitioners) and consequent registration of the said case was also illegal being superstructure raised on an illegal direction by the Additional Sessions Judge and the police was not authorized under the law to register the said case and investigate the same. Consequently the order of the Additional Sessions Judge for registration of the case under the Scheduled Offences and its registration by the police were declared to have been passed and registered wilbbut lawful authority and of no legal effect and the case was quashed. It would be convenient to reproduce para 5 of the aforesaid case law in toto as under:- "5. I have examined the said rules alongwith the provisions of the said Ordinance. Under section 3 of the Ordinance the Government has been empowered to establish Anti-Corruption Establishment. The said sections of the P.P.C. under which the said F.I.R. was got registered are scheduled offences. The said offences committed by public servants jointly with other person are to be tried and investigated in accordance with the provisions of the said Ordinance and the rules made thereunder. Rule 6 of the Punjab Anti-Corruption Establishment Rules, 1985 provides that preliminary inquiries and investigations shall be initiated by the Establishment against public servants on complainants received from the Government, Heads of Departments or other reliable sources. Under rule 7 a Deputy Director or an officer of or above his rank has been empowered to initiate preliminary inquires in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information. Rule 8 of the said Rules deal with the registrations of case against public servants and any other person who commits offences jointly with public servants. This rule provides that criminal cases shall be registered by the Establishment under the Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance. According to this rule a criminal case shall be registered against public servant under a written order of officers of Establishment mentioned in subclauses (a), (b) and (c) of sub-rule (2). The case against the public servant in BPS 1 to 16 according to this rule can be registered under the written orders of an officer not below a Deputy Director and against public servants in BPS 17 and 18 under the order of the officer not below an Additional Director and against civil servants in BPS-19 and above by a Director. Rule 15 provides that the case after registration could be dropped in the circumstances mentioned therein. Petitioners Nos. 2 and 3 are undoubtedly public servants whereas petitioner No. 1 is the person who was complainant in the said case in which respondents Nos. 2 and 3 were acquitted who were alleged to have committed scheduled offences jointly with petitioners Nos. 2 and 3. A close scrutiny of the relevant provision of law as discussed above leaves no doubt that the case against the petitioners could not have been registered except under the orders of the officers mentioned in Rule 8 as discussed above, in this view of the matter, the direction of the learned Addl. Sessions Judge for registration of case against the petitioners and consequent registration of case through F.I.R. No. 608 dated 20.7.1989 at Police Station Model Town, Gujranwala was also illegal being superstructure raised on an illegal direction given by the learned Addl. Sessions Judge. The S.H.O. P.S. Model Town, Gujranwala was not authorised under the law to register the said case and investigate it." 5. I would be glossing over an important aspect of the matter by making the observation and expression, which is that of paramount importance, that general law, substantive or procedural, is superseded by the special law. Thus the provisions of all the laws towards the anti-corruption measures shall have the preference. Consequently, the order for the registration of the case passed by Ghazi Aman Ullah Magistrate 1st Class Ahmadpur East and the registration of the case at P.S. Sadar Ahmadpur East under the Scheduled Offences are without lawful authority and of no legal effect. 6. On factual aspects I have to express that no amount has been recovered from the petitioner-accused. As rightly pointed out by his learned counsel legally without the signatures of the Headmaster/complainant the amount of GP Fund of different public servants could not be withdrawn by the clerk (petitioner-accused) from the office of the District Accounts Officer. The Headmaster/complainant may have obtained the help of Ghazi Aman Ullah Magistrate 1st Class Ahmadpur East to save his own skin. There is no . direct evidence implicating Saleem Hussain petitioner-accused with the present occurrence. Consequently it can safely be held that on merits the involvement of this petitioner-accused is a question of further inquiry. The learned State counsel was not able to convince me in the matter to hold the view in favour of the State. Thus legally the accused is entitled to be admitted to bail than to be retained in jail. 7. For what has been said above, I accept this application and admit Saleem Hussain petitioner-accused to bail in the sum of Rs. 15,000/- (rupees fifteen thousand) with one surety in the like amount to the satisfaction of the Special Judge Anti-Corruption Bahawalpur. 8. A copy of this judgment shall be sent to the Deputy Commissioner/ex-Qfficio Deputy Director Anti-Corruption Bahawalpur by name in a sealed cover so that working in such cases stands streamlined and there is no transgression of authority at any end having no jurisdiction in the matter. (MAA) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 924 (DB) [Larkana Bench] Present : ABDUL MAJEED KHANZADA AND SHAH NAWAZ AWAN, JJ. ABDUL AZIZ and another-Petitioners versus STATE-Respondent Criminal Bail Application No. 58 of 1995 decided on 5.9.1995. Bail-- —-S. 497/498 Cr,P,C.-Bail--Grant of-Prayer for--Allegations that 8 accused including present petitioner armed with kalashinkovs and guns, indulged in in-effective firing in dark night—Accused claimed to be identified in light of tractor-Held: No allegation that any of accused was armed with rifle but 38 empties of rifle alongwith empties of kalashinkovs and guns were secured from scene of occurrence-150 empties of kilashinkov, 38 of rifle and 95 of guns have been recovered but not a single injury has been caused to complainant or eye-witnesses--A fit case for further inquiry- Bail allowed. [P. 925] A Mr. Ubed Ullah Abro, Advocate, for the Petitioner. Mr, Muhammad Bachal Tunio, A.A.G. for State. Date of hearing: 30.8.1995 and 8.9.1995. judgment Abdul Majeed Khanzada, J.-The brief facts leading to this application are that on 1.6.1995 at 6 a.m. complainant Muhammad Mithal lodged his report at Police Station Golo Daro being crime No. 11/1995 stating therein that he is zamindar and has purchased 210 jarebs of land from accused Muhammad Suleman s/o Dost Muhammad in the year 1974. He has further stated that Muhammad Suleman had approached complainant and has asked him to enhance the amount as he has sustained loss by selling the land, which the complainant refused and filed a civil suit and got the stay order. It is further alleged that on 1.6.1995 at 2 a.m. while he alongwith driver Fida Hussain, Ghulam Hussain, Ghulam Mustafa were at their Dera and were running thresher, they saw on the light of the tractor, Sikandar, Suhno, present applicant Abdul Aziz, Bakhshoo, Muhammad Suleman, Abdul Ghafoor Jatoi and two unknown culprits out of them Suhno and present applicant Abdul Aziz had kalashnikoves in their hands and the rest had guns. It is also the case of complainant that Suleman gave hakkal and asked his companions not to spare complainant party, on which ccused rmed with kalashnikovs and guns directly fired at the complainant party and the complainant party fell down and concealed themselves in the heaps of unthrashed wheat and raised cries which attracted Abdul Nabi and Chhutto who also saw the accused party firing. Seeing villagers, accused went away, as such he went to his brother Haji Shahbaz Khan Seelro and narrated the facts who asked him to lodge the report. After registration of FIR, police after investigation arrested accused Abdul Aziz and one unknown ow known as Khatanzada have been sent up in the Court of S.T.A. Shikarpur. We have heard both the counsels. The learned A.A.G. concedes. The main contentions of the learned counsel for the applicants are that the name of one of the accused namely Abdul Latif does not appear in the FIR; that there is ineffective firing; that incident has taken place in the night and the identification of the accused in the light of tractor is very weak piece of evidence and cannot be relied; that no. kalashnikov has been recovered and the kalashinkov has been introduced to give the jurisdiction to the S.T.A. Court; that no weapon whatsoever has been recovered; that prior to this one of the applicant/accused namely Abdul Aziz has lodged the report being crime No. 10/1995 under section 324 Q & D Ordinance against the complainant party at same police station and this is & counter blast. Counsel for the applicant has relied on 1994 SCMR 393. We have heard the arguments of both the counsels and with their assistance have perused the record. We have failed to understand and on our enquiry even the learned A.A.G. could not give the satisfactory reply as in the FIR there is no allegation that any of the accused was armed with rifle but the memo of recovery shows 150 empty shells of kalashnikoves, 38 empties of rifle and 95 of guns as to how the empties of rifle were secured from the scene of offence when no one was armed with rifle. We also fail to understand that when 150 empties of kalashinkov, 38 of rifle and 95 of guns have been recovered but not a single injury has been caused to the •complainant or his witnesses. We are of the view that it is a fit case for further enquiry. We accordingly grant bail to the applicant/accused in the sum of-Rs. one lac and P.R. bond in the like amount to the satisfaction trial Court. Bail granted. (MAA) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 926 [Larkana Bench] Present : ABDUL MAJEED KHANZADA, J. ABDUL MAJEED-Appellant Versus STATE-Respondent Criminal Appeal No. 29 of 1994/Larkana and No. 47/90 (Sukkur), accepted on 19.9.1995. Prohibition (Enforcement of Hadd) Order 1979- — Art. 4--Conviction-Challenge to-Appreciation of evidence-Alleged recovery of 20 "Puris" of Heroin-Actual Heroin powder 13 grams, out of which 5 grams sent to chemical examiner-Incident taking place in broad day light (3. p.m.) in a thickly populated area but no private person made mashir of recovery-Compliance of S. 103, Cr.P.C. was very necessary in circumstances—Recovery mashir police officials— Not understood why only 5 grams was sent to chemical Examiner and not entire-No prove about 8 grams remaining was in fact heroin~Un-explained delay of 14 days in sending 5 grams of Heroin to Chemical Examiner-Prosecution failed to prove its case beyond reasonable doubt-Appeal allowed- Appellant acquitted. [Pp. 928 & 929] C, D & E 1995 SCMR 614, 1995 MLD 927, 1995 MLD 946 reL Police witness- — No doubt police official is as good as any other witness; their evidence is to be examined and accepted with care and caution, so that a sligh­ test doubt, if any, found or felt in, benefit of it must be given to accused. [P. 928] B Criminal trial-- — Explanation, for not joining private person to act as mashir, is given by witnesses, that no body agreed to act as such, is a general explanation-­ Names of persons who were requested to join but they refused, should have been given in evidence—Bald statement of witnesses that no body agreed to act as mashir cannot be accepted. [P. 928] A Mr. Abdul Majeed, Appellant in Person. Mr. Abdul Fateh Mughal, Advocate, for A.A.G. Dates of hearing: 6.2.1995, 31.7.1995, 28.8.1995. judgment This appeal has been filed by appellant Abdul Majeed son of All Hassan Leghari against the judgment dated 14.5.1990 passed by the IV Additional Sessions Judge, Larkana, whereby the appellant has been convicted under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 (FIR No. 64/1989) and sentenced to undergo two years R.I., five whipping and to pay a sum of Rs. 1,000/- as fine or, in default of payment, to undergo further R.I. for two months. I have heard the appellant in person and Mr. Abdul Fateh Mughal Advocate for A.A.G. With their assistance I have gone through the record including the evidence, documents exhibited and the impugned judgment. 2. According to the prosecution, on 29.8.1989 Syed Altaf Hussain Shah, Assistant E.T.O. Larkana alongwith Inspector Safdar Qureshi, Inspector Azharul Haq Shaikh, Excise Jemadar Ghulam Hyder Baloch and nine other Excise Constables, was at patrol in Larkana town and when at about 3 p.m. the reached in Dari Mohalla near the house of Gul Hassan Leghari, they saw a man suspicious condition. On enquiry that man disclosed his name as Abdul Majeed Leghari. His personal search was taken and a plastic bag containing 20 paper puris of heroin and a cash of Rs. 18/- were secured from his left side pocket of the shirt. The heroin powder was weighed and found to be 13 grams. He took out 5 grams out of it for chemical purpose and sealed it. He also separately sealed the remaining 8 grams. He arrested the accused and secured the heroin under a mashirnama prepared in presence of mashirs HC Muhammad Bux and Deedar AIL He then brought the accused and the property at Excise office, where he lodged the FIR. He sent 5 grams sample to Chemical Examiner and also sent up the accused to stand his trial. 3. The prosecution examined two witnesses. PW-1 Syed Altaf Hussain Shah (Ex-7) who is complainant as well as Investigation Officer of the case. He has produced the mashirnama of arrest and securing the heroin (Ex-8), FIR (Ex-9) and report of the Chemical Examiner (Ex-10). He has stated the facts as stated by him in the FIR. PW-2 Excise Constable Muhammad Bux (Ex-11) who acted as mashir of the arrest and securing of the heroin. He supported the complainant. In his statement under section 342 Cr.P.C. the appellant has denied the prosecution case and stated that he has been implicated in this false case on the instigation of one Muhammad shaque Leghari, with whom he has got enmity. 4. The appellant who addressed the court in person and said that he is Chowkidar in Sessions Court, Larkana and he is falsely implicated in this case by the complainant at the instance of one Muhammad Ishaque Leghari with whom he has got dispute over land. He also pointed out that ko public witness is joined by the complainant in the investigation and partichlarly at he time of recovery of alleged heroin and Ms arrest. He claims that he is innocent and pray mercy. 5. On the other hand Mr, Abdul Fateh Mughal Advocate appearing for the A.A.G. supported the impugned judgment. He argued that the witnesses examined in the case have clearly proved the prosecution case and their evidence has not been shattered in-spite of lengthy cross-examination, In the end, he stated that it was not necessary to comply with the requirements of S. 103 Cr.P.C. and in support of his contention, he relied upon a case Mir Muhammad v. The State reported in 1995 SCMR 61. 6. Since the appellant/accused is without the legal assistance of his Advocate as such I felt it my duty to see that no injustice is done to him (appellant) simply for want of legal assistance. 7. I have gone through the case law 1995 SCMR 614 cited by Mr. Abdul Fateh Mughal and found that it is not applicable in the circumstances of the instant case, because no recovery is made on the leading and pointation of the appellant. In this case, during search of the person of the appellant, the alleged heroin was recovered from the left side pocket of his hirt. In the circumstances of this case, the compliance of S. 103 Cr.P.C. was very necessary. The incident has taken place in broad day light and in a hickly populated area but the private persons were not made as mashirs of the recovery and arrest of the accused. The explanation, for not private persons, is given by the witnesses that in spite of request, nobody agreed to act as such. This is a general explanation. The names of the persons who were requested and they refused should have been noted down and given in evidence, as such the bald statements of the witnesses that nobody agreed to act as mashir, can not be accepted. Reference be made to a case (1) Saifullah v. State (1995 MLD 946) and (2) Pomi v. State (1995 MLD 927). It is no doubt that a police 'official is as good as any other private witness; but in such circumstances their evidence is to be examined and accepted with care and caution, so that a slightest doubt, if any, found or felt in the circumstances of the case, the benefit of it must be given to the accused. 8. Admittedly 13 grams of heroin was alleged to have been secured from the possession of the accused but I fail to understand as to why 5 grams was separated from it and sent to the Chemical Examiner and why not the entire. There is no evidence to prove that the remaining 8 grams of heroin which was not sent to the Chemical Examiner, is in fact a heroin powder, as such the finding of the trial court, while determining point No. 1 as to whether the accused was found in possession of 13 grams of heroin, and finding in affirmative, on the face of it, is without any substance and evidence. 9. I also fail to understand as to why heroin is sent to Chemical Examiner after 14 days, as admitedly, heroin is secured on 29.8.1989 and the same was received by Chemical Examiner on 12.9.1989. 10. In view of the above discussion, I am of the opinion that the prosecution has failed to prove its case without any reasonable doubt; and as a result of which, this appeal is allowed and the judgment dated 14.5.1990 passed by IV Additional Sessions Judge, Larkana in Sessions case No. 715/1989 is set aside and the appellant is acquitted. He is present on bail, his bail bond stands cancelled and surety discharged. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 929 [Larkana Bench] Present: shah nawaz awan, J. GHULAM RASOOL and one other-Appellants versus STATE-Respondent Criminal Appeal No. 16/94 accepted on 17.8.1995. (i) Pakistan Penal Code 1860 (Act XLV of 1860)-- —-S. 161-Prevention of Corruption Act II of 1947, S. 5(2)-Conviction~ Appreciation of evidence-Raiding magistrate and circle Officer Anticorruption Establishment did not see passing over of tainted money to appellant nor they heard conversation between complainant and appellants-Tainted currency notes were not shown to, raiding Magistrate, Circle officer even to complainant while they were examined in trial Court-From very beginning appellants defence was that amount was toward payment of land revenue tax-Witness in whose presence currency notes were put on table lying infront of appellant confirms statement of appellants-Prosecution failed to prove its case beyond reasonable doubt—Both appellants were acquitted. [Pp. 931 to 933] A, B, D, E, F G (ii) Pakistan Penal Code 1860 (Act XLV of 1860)-- —-S. 161 read with Prevention of Corruption Act, 1947, S. 5(2)-Mere recoveiy of tainted money from accused's possession is not enough to fix him with guilt of having received unless it can be shown to have actually accepted same with knowledge that it is illegal gratification. [P. 932] C , Mr. Muhammad Nawaz Chandio, Advocate, for Appellants. Mr. Essardas, Advocate, for State. Date of hearing: 7.8.1995. judgment Ghulam Rasool S/O Karim Bux Dayo Tapedar posted at Tapo Biro Chandio Taluka Larkana and Bachal Shah S/o Qalab All Shah working as Kotwar Tapo Biro Chandio Taluka Larkana were tried by Special Judge Anti-corniption Sukkur for an offence under section 161/34 PPC read with section 5(2) of the prevention of corruption Act II of 1947. Both were found guilty of the offence and were sentenced to undergo R.I for one year each and to pay a fine of Rs. 500/- each or in default of payment of fine to undergo further R.I for three months each. Both the accused have filed this appeal under section 410 of the Code of Criminal Procedure against their conviction and sentence. According to the prosecution story appellant Ghulam Rasool was serving as Tapedar in Tapa Biro Chandio Taluka Larkana whereas appellant No. 2 Syed Bachal Shah was his Kotwar. One Muhammad Ishaque the complainant approached the appellant Ghulam Rasool for mutation of khata on the basis of a registered sale deed. The appellant Ghulam Rasool demanded illegal gratification of Rs. 800/- but the matter was settled at Rs. 500/-. The complainant Muhammad Ishaque paid Rs. 100/- to the appellant Ghulam Rasool whereas remaining amount of Rs. 400/- was to be paid by the complainant on the next day. The complainant then approached the Circle Officer Anti-corruption Larkana and lodged the F.I.R. thereafter a trap party was arranged under the supervision of Illrd Class Magistrate. On the fixed place and time the complainant paid the remaining amount of Rs. 400/- to the accused .Ghulam Rasool who passed it to his Kotar Bachal Shah. Thereafter the amount was secured by raiding party and challan was submitted before the court of Special Judge Anti-corruption Sukkur where charge was framed against the accused persons and after recording the evidence of prosecution witnesses both the appellants were convicted as stated above. I have heard the arguments of the learned Advocate Mr. Muhammad Nawaz Chandio for the appellant and Learned advocate Mr. Essardas appearing on behalf of the state and has perused the entire record of this case. The contentions of the learned advocate Mr. Muhammad Nawaz Chandio are that the tainted amount was not shown to the witnesses at the time of their examination and secondly that the said amount was not put to the accused at the time when they were examined under section 342 Cr.P.C. Thirdly that prosecution has failed to establish that the tainted amount was passed to the accused persons in the presence of the Magistrate and raiding party, or that they heard the conversation between the complainant and the accused whereas one of the witnesses namely Nematullah has admitted that the amount given to the accused was the amount for payment of land revenue assessment, therefore, the conviction awarded to the accused persons is illegal. In support of his contention learned advocate has placed his reliance on following reported cases. 1. Allah Diwayo vs. The State 1973 P.Cr.LJ. 1036. 2. Abdul Razaque Rathore vs. The State NLR 1992 Criminal 427. 3. NLR 1985 Criminal 32. On the other hand the learned advocate Mr. Essar Das appearing on behalf of the State has submitted that the complainant and the witnesses examined by the prosecution have fully supported the case of the prosecution and further that the stand taken by the accused persons that the amount was towards the payment of land revenue has not been proved by the accused persons through any evidence as neither any record was produced nor any document was filed by the appellants. In order to appreciate the contention of both the learned advocates for the parties it would be proper to first examine the evidence of the Magistrate in whose presence the trap was arranged and the appellants/ accused were arrested to see whether the Magistrate and the witnesses have heard the conversation between the complainant and the accused persons or that they actually saw the passing of the tainted money to the appellants. Prosecution examined Muhammad Suleman who was posted as Assistant Mukhtiarkar and TCM Dokri on 22.7.1986 when at about 10-00 a.m. Additional Circle Officer Larkana approached him with a request to accompany him for a secret duty, therefore, he accompanied with the circle officer Larkana and was introduced to complainant Muhammad Ishaque in the circle office and the FIR was read over to him by the Additional circle officer and one mashir Nematullah Murree was also brought by the Additional circle officer. The Additional Circle Officer noted the serial numbers of currency notes of Rs. 400/- and prepared a maskirnama in his presence and thereafter the amount was handed over to the complainant for passing on to the appellant/accused Ghulam Rasool Tapedar. Then the raiding party proceeded towards the Taulka Officer Larkana while complainant and mashir went to the office of the Mukhtiarkar, whereafter the Magistrate and, Sher Muhammad the Additional Circle Officer Larkana waited in a mosque of the Civil Hospital and the other staff of the Anti-corruption Police took positions at different places and after a short while complainant informed the raiding party that he had passed on the tainted money to accused Ghulam Rasool who had given the amount to his Kotwar and when they were on the way to the Mukhtiarkar's office when mashir Nematullah met them outside the office of CIA who narrated the same facts. Then the raiding party went to the Tapedar Hall in the Taluka Office where accused Ghulam Rasool was present alongwith his Kotwar Bachal Shah. Then the raiding party introduced themselves to the accused persons and enquired about the tainted money when Bachal Shah produced the same from his possession and after securing the money they compared the serial numbers with the numbers noted in the first mashirnama and thereafter Circle Officer secure same register and register of sale deed from the Table lying in front of the accused Ghulam Rasool. Thus from the statements of the Magistrate it would be seen that the Magistrate who was member of the raiding party did not see the passing of the tainted money to the appellants and also did not hear the conversation between complainant and appellants. During the cross examination this witness has disclosed that the mosque of Civil Hospital is about 100 paces away from Taluka Office and there is a boundry wall between Taluka Office and mosque as such it is presumed that the Magistrate would have not head the conversation between complainant and the appellants and also did not see the passing of tainted amount. The Magistrate has also not stated in his examination-in-chief that either he has heard the conversation of the parties or had seen the passing of amount to the appellant. The magistrate has also disclosed that when the accused was taken to the Circle Office in Jeep they disclosed that the amount collected was by way of land revenue assessment. From the perusal of the deposition of the Magistrate it would be seen that the tained amount which was recovered from the possession of the accused in his presence was not shown to him when he was being examined before the Court. The defence put forward by both the appellants from the very beginning is that the amount of Rs. 400/- was towards the payment of land revenue tax by the complainant Muhammad Ishaque. It has been held time and again that mere recovery of the tainted money from the accused possession is not enough to fix him with the guilt of having received bribe unless it can be shown to have actually accepted the same with the knowledge that it is illegal gratification. Number of questions in this regard were put to the witnesses that the amount of Rs. 400/- was lying on the table in the hall where all the tapedars sit which shall is also called Tapedars hall. The complainant of this case Muhammad Ishaque was examined by the trail court on 27.9.1987. From the perusal of the examination-in-chief it reveals that the tainted notes of Rs. 400/- were even not shown to him to certify or to ascertain whether those were the same notes, the number of which were noted by the Magistrate and the Additional Circle Officer. This appears to be gross negligence on the part of the prosecution. Similar is the deposition of witness Nematullah which shows that the tainted currency notes were not shown to him while he was being examined before the Court and most important point to note is of the cross examination of this witness in which he has admitted that he and complainant live in a common village and complainant was known to him before the incident. He further disclosed that he went into the office of the accused Tapedar, but he was busy with his work. He has also disclosed that it is correct that Muhammad Ishaque kept the currency notes worth Rs. 400/- on the table lying in front of accused tapedar saying that it was the amount towards the payment of land revenue assessment and other charges. He has further disclosed that the complainant further stated that he would bring the balance amount after a shortwhile and collect the documents. It therefore appears that the plea taken by the accused persons that the amount of Rs. 400/- was towards the payment of land revenue assessment has been accepted by the witnesses of the prosecution which has placed shadow of doubt on the entire case of prosecution. This witness has also admitted that he is the friend of the complainant Muhammad Ishaque therefore, I see that even prosecution was not able to prove its case against the accused persons before the trial court. On the basis of this doubt I am of the opinion that the prosecution was not able to prove its case against the accused persons as the doubt has arisen whether the amount was towards the payment of land revenue tax or it was amount to be paid to the appellants as illegal gratification. This doubt was created by the witnesses of the prosecution. In view of the above discussion both the appellants are entitled for their acquittal I, therefore, set aside their conviction awarded under the impugned judgment and allow their appeal. They are on bail, their bail bonds stands cancelled and sureties discharged. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 933 Present: rana muhammad arshad khan, J. MUHAMMAD ASHRAF-Appellant versus STATE-Responent Criminal Appeal No. 365 of 1992 accepted on 19.2.1995. (i) Pakistan Criminal Law Amendment Act 1958- —S. 6(5)-Sanction for prosecution of Public Servant-Appellants counsel Contended that sanction for prosecution of appellant was not obtained from competent authority, i.e. Collector/Assistant Commissioner hence conviction and sentence of appellant is vitiated-Held: In the light of statutory provisions, authorities competent to grant sanction for prosecution of a Patwari was Collector/Assistant Commissioner upto 16.7.1980~After amendment of Rule 2 made in 1980, sanctioning authority was chairman of council or committee, constituted under Punjab Anti-Corruption Establishment Rules 1974-Pakistan Criminal Law Amendment (Punjab) Rules 1985 came into force on 23.5.1985— From 23.5.1988 to 23.6.1992 the sanctioning authority in case of Patwari (who falls within BPS 1-18) was commissioner of Division~No sanction of any kind is required for prosecution of Public servant for an offence committed by him after 30.6.1992--Sanctioning authority at time of commission of offence was commissioner-hence sanction was competently granted. [Pp. 938 & 939] A & B PLD 1992 SC 72 ref. 1988 P.Cr.L.J. 331 dissented from. (ii) Pakistan Penal Code 1860 (Act XLV of 1860)-- —Ss. 467/466/477-A/420 read with Prevention of Corruption Act 1947, S. 5(2)~Conviction~Challenge to-Allegations, appellant being government servant (Patwari) after receiving illegal gratification, from opponent of appellant, tampered with Revenue Record-On merits, complainant neither saw appellant tampering with record, nor has seen passing over money to appellant-Invesitgating Officer not obtained specimens for opinion of Handwriting Expert-Complainant inimical and interested witness-No independent evidence produced to corroborate version of com-plainant-Necessary corrections in Revenue Record found made under Orders of Deputy Commissioner-Judgment of trial Court not supported by correct reasoning hence was set aside—Appellants acquitted. [P. 940] C, D, E Mr. A. G. Tariq Chaudhry, Advocate, for Appellant. Raja Muhammad Arshad, Advocate, for State. Date of hearing: 19.2.1995. judgment Muhammad Ashraf Patwari, aged 58 years was tried, in Crime No. 2 dated 8.1.1985 under sections 468/477-A/420/467 PPC read with section 5(2) of the Prevention of Corruption Act, 1947, registered with police station, ACE, Jhang, at the instance of one Abdur Rehman son of Mehr Ahmed. The learned Special Judge, Anti-Corruption Sa.rgodha Camp at Jhang vide his judgment dated 20.11.1992, convicted the appellant under section 468 PPC and sentenced him to six months R.I. with a fine of Rs. 1,000/- in default whereof to further undergo R.I. for one month and also convicted under section 477-A PPC and sentenced him to six months R.I. and a fine of Rs. 1,000/- or in default of payment of fine to further undergo R.I. for one month. Both the sentences were ordered to run concurrently. 2. This judgment has been challenged through this appeal. 3. Briefly the facts of the case are ; that the complainant had submitted an applicant Ext. PF to the Additional Director, Anti-Corruption Establishment to the effect that Muhammad Ashraf, Patwari, during his osting as Patwari Halqa Kot Lai Tehsil Shorkot District Jhang, received the illegal gratification from his opponents and tampered with the record and prepared the forged record of khasra girdawari of Rabi 1984 and Rabi 1985 and Register Haqdaran Zameen pertaining to the land in square No. 101, killa Nos. 11, 20 and 21/1, making the opponent party entitled to have a path of two karams in the above said land owned by the complainant. On receiving the complainant Ext. PF, the inquiry was marked to Ch. Shahbaz Ahmed (PW. 5), who conducted the inquiry and prepared a report. On tht receipt of the inquiry report, Deputy Director (Investigation), Anti- Corruption Establishment, Faisalabad Range Ftasalabad permitted for the registration of the case against the accused/appellant vide Ext. PL. In view of the order (Ext. PL), Circle Officer, ACE, Jhang registered & case FIR (Ex. PM) against the appellant. 4. After the accomplishment of usual investigation, the challan against the accused/appellant was prepared and the same was submitted, after obtaining sanction (Ex. PN), in the trial Court. 5. On the receipt of the challan, formal charge was framed by the learned trial Court to which the accused/appellant pleaded not guilty and claimed the trial. The appellant denied the incriminating circumstances. 6. The prosecution, in order to substantiate its case, produced as many as six witnesses. Abdur Rehman, complainant appeared as PW. 1, Usman Ali, as (PW 2), and gave the ocular account, PW. 3 Safdar Hussain, Patwari, produced the Register Haqdaran Zamin, 1984-85, Aurangzeb, Patwari, appeared as (PW. 4), Shehbaz Khan, Assistant Director, ACE, Faisalabad entered appearance as PW. 5 and Ch. Muhammad Islam, Inspector/ASDPO, entered into the witness box as PW. 6. 7. The learned counsel for the appellant contended that the appellant has been falsely implicated. He had to incorporate in the register khasra girdawari, the actual position at the spot He did not receive illegal gratification from any body for this purpose. Further argued that the sanction Ex. PN was obtained from an authority i.e. the Commissioner, Faisalabad Division, Faisalabad which was not competent to accord under the law. So the trial is vitiated. He placed reliance on Tazeem Hussain v. The State (1988 P.Cr.L. J. 331). 10. Learned counsel for the State supported the judgment on the ground that the people have addicted to the corruption and the corrupt officials are not entitled to any leniency. 11. I have heard the learned counsel appearing for the respective parties. I have also gone through the record and given my anxious consideration to the facts and the circumstances of the case and the relevant provisions of law. 12. The admitted position of the case is that the complaint (Ex.PF) was submitted by the complainant, Abdul Rehman in the office of Addl. Director, Anti-Corruption, Faisalabad on 18.7.1988 and the same was entertained on 30th July, 1988. The matter, thereafter, was got inquired into and on the basis of the result of inquiry a case FIR (Ex. PM was registered on 19.1.1989). On the finalization of the preliminary investigation, sanction Ex. PN for prosecution of the appellant was obtained from the Commissioner, Faisalabad Division, Faisalabad. 13. The main point urged in support of this appeal is that the requisite sanction required under sub-section (5) of Section 6 of the Pakistan Criminal Law Amendment ct, 1958, was given by Mr. Shahzad Hussain Pervaiz, Commissioner Faisalabad Division, Faisalabad, who according to the learned counsel for appellant, was not authorised to do so as under Rule 2 of Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962, the only officer competent to grant the said sanction, was the officer competent to remove the appellant form service. The appellant was a Patwari and the Officer competent to remove him from service at the time of commission of offence in 1988 and when the FIR against him was recorded on 8.1.1989, was the Collector/Assistant Commissioner, under whom he was working and since the sanction in this case was given by an unauthorised Officer, the conviction and sentence of the appellant is vitiated in view of the judgment of his Lordship Mr. Justice Qurban Sadiq Ikram reported as Tazeem Hussain v. The State. I do not reconcile with the learned and on the basis of the result of inquiry a case FIR Ex. PM was registered on 18.1.1989. On the finalization of the preliminary investigation, sanction Ex. PN for prosecution of the appellant was obtained from the Commissioner, Faisalabad Division, Faisalabad. The main point urged in support of this appeal is that the requisite sanction required under sub-section (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958, was given by Mr. Shahzad Hussain Pervaiz, Commissioner, Faisalabad Division, Faisalabad, who according to the learned counsel for the appellant, was not authorised to do so as under Rule 2 of Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962, the only officer competent to grant the said sanction, was the Officer competent to remove the appellant from service. The appellant was a Patwari and the Officer competent to remove him from service at the time of commission of offence in 1988 and when the FIR against him was recorded on 8.1.1989, was the Collector/Assistant Commissioner, under whom he was working and since the sanction in this case was given by an unauthorised officer, the conviction and sentence of the appellant is vitiated in view of the judgment of his Lordship Mr. Justice Qurban Sadiq Ikram reported as Tazeem Hussain v. The State, I do not reconcile with the learned counsel on this ground. For the proper appreciation of the correct legal position about the sanction required for the prosecution of a public servant under sub-section (5) of Section 6 of the Pakistan Criminal Law (Amendment) Act, 1958, reference to an interpretation of the following statutory provisions is necessary: - (i) S. 6(5) of the Pakistan Criminal Amendment Act, 1958 and the explanation attached to it alongwith Sec. 12 of this Act, reads as under: - "(5). Notwithstanding anything contained in the Code of Criminal Procedure, 1898, or in any other law, previous sanction of appropriate Government shall be required for the prosecution of a public servant for an offence under this Act and such sanction shall be sufficient for offence triable under this Act. Explanation. For the purpose of this sub-section "appropriate Government" shall mean the Government which at the time of the commission of the offence was the appropriate Government. Power to Make Rules. (1), The appr may frame rules to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing powers, such rules may provide for any of the following matters, namely:- (a) authorization of persons to exercise the power to sanction prosecution on behalf of the appropriate Government, in respect of various grades of public servants." (ii) Rule 2 of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962 is as follows: - "(2). Sanction for prosecution:- The power to sanction prosecution of a public servant under sub-section (5) of Section 6 Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) may be exercised on behalf of the Provincial Government by an Officer competent to remove such public servant from office." (iii) The following amendment was made on 16.7.1980 in Rule 2 of the Pakistan Criminal Law Amendment (West Pakistan) Rules, 1962:- "(3) For rule 2, the following shall be substituted. 2. Sanction for prosecution:- The power to sanction prosecution of a public servant under sub-section (5) of Section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) may be exercised on behalf of the Provincial Government by the Chairman of the Council or the Committee as the case may be, on the basis of the opinion of Council or Committee. Explanation. For the purpose of this rule Council or Committee shall mean the council or committee as define in the Punjab Anti-Corruption Establishment Rules, 1974." (iv) The Rules, 1962 were further amended through Pakistan Criminal Law Amendment (Punjab) Rules, 1985, promulgated on 24.4.1985 as under: - "In exercise of the powers conferred upon him by sub­ section 2 of Section 12 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 1958) and in supersession of Pakistan Criminal Law Amendment (Punjab) Rules, 1962 the Governor of the Punjab is pleased to frame the following rules namely: - 1. Short Title and Commencement: (1) These rules may be called the Pakistan Criminal Law Amendment (Punjab) Rules, 1985. 2. They shall come into force on a day to be notified by the Government. 3. Sanction for prosecution:- The power to sanction prosecution of a public servant under sub-section (5) of Section 6 of the Pakistan Criminal Law Amendment Act, 1958, (XL of 1958) shall be exercised on behalf of the Provincial Government by the authorities specified below: - (a) Public servant in (i) Commissioner of the BPS-1-18. Division where the offence or a part thereof has been committed and ............. " (v) The above rules of 1985 were notified for enforcement with effect from 24»J. 1985. (vi) InZafarAwan v. Islamic Republic of Pakistan (PLD 1989 FSC 84), the Federal Shariat Court declared S. 6(5) of the Pakistan Criminal Law Amendment Act, 1958, as repugnant to the Injunctions of Islam. This judgment was upheld by the Shariat Appellate Bench of the Supreme Court in Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Zafar Awan, Advocate, High Court (PLD 1992 SC 72). The Supreme Court fixed 30.6.1992 as the date from which the said sub-section would cease to have effect. 4. From the above said statutory provisions, it can be safely concluded that the authorities competent to grant sanction for the prosecution of a Patwari was the Collector/Assistant Commissioner of his Sub-Division upto 16.7.1980, as the said Officer is competent to remove a Patwarj from service. After the sanctioning authority was the Chairman of the relevant council or committee as constituted under the Punjab Anti-Corruption Establishment Rules, 1974. This position continued from 16.7.1980 uptill 23.5.1985 when the Pakistan Criminal Law Amendment (Punjab) Rules, 1985, came into force. From 23.5.1985 to 23.6.1992, the sanctioning authority in the case of a Patwari (who falls within EPS. 1-18) was the Commissioner of the Division. . In view of the judgment reported in PLD 1992 SC (Supra), no sanction of any kind is required for the prosecution of a public servant for an offence committed by him after 30.6.1992." It is evident from a bare reading of the judgment of this Court cited by the learned counsel for the appellant reported as Tazeem Hussain v. The State (1988 P.Cr.L.J. 331) that all the above statutory provisions were not brought to the notice of the learned Judge who decided the case. In the present case, the sanctioning authority at the time of the commission of the offence was the Commissioner of the Division concerned. The sanction in the case of the appellant was competently granted by the Commissioner, Faisalabad Division, who was duly authorised in this behalf under the Pakistan Criminal Law Amendment (Punjab) Rules, 1958. Now I revert to the merits of the case. Abdul Rehman, complainant appeared as PW. 1 and stated the story as he had already mentioned in his complaint Ex. PF. In his cross-examination, he admitted that the case was got registered by him against his brother who had ploughed his field but he did not admit that the police had cancelled the case as being false. He denied the suggestions that he was given 1 kanal 13 marlas land in lieu of that path; he however, admitted that Rab Nawaz had filed a civil suit regarding the same path restraining him to demolish the same but denied the suggestions that the civil suit was decided in the light of the decision taken by the arbitrators, who have been nominated with the mutual consent of the parties. Usman Ali (PW. 2) deposed that the said land was in possession of the complainant at the relevant time. Rab Nawaz and others brought a tractor and ploughed the land illegally and made a path. He very categorically admitted in his cross-examination that when the land was ploughed, he was not present there. He also admitted that the case was got registered but the same was later on cancelled. He also admitted that there was party politics in Mauza Kot Lai. Safdar Hussain, Qanungo (PW. 3) stated that in Register Haqdaran Zamin, 1984-85 of Mauza Kot Lai there was no mention of any path in Killa No. 11 Saquare No. 101 of Mauza Kot Lai nor there is any path shown existed in the record in Killa Nos. 20, 21/1. He has admitted in the cross-examination that Patwari was to record the actual position at the post and if there was nay mistake the order was to be obtained from the Deputy Commissioner for its correction. Aurangzeb, Patwari (PW. 4) Halqa Kot Lai had brought the original record to show that necessaiy corrections were made under the orders of the Deputy Commissioner. He admitted in his cross-examination that Khasra girdawari is to be prepared according to the position existing at the spot. He further made it dear that the path exists in Khasra Nos. 20 and 21/1 of Khatoni No. 362 and the path was existing there from the time prior to his posting. Ch. Shahbaz Khan, Assistant Director (PW. 5) deposed that he had inquired into the matter and prepared the inquiry report on the basis of which case was registered. Ch. Muhammad Islam, Inspector/ASDPO (PW. 6) entered appearance and deposed that he after recording the FIR, conducted the investigation and recorded the statements of the witnesses, and arrested the accused. He after obtaining sanction submitted the challan. In crossexamination he categorically stated that he, during the investigation, only relied upon the findings in the inquiry report. He did not even investigate . the matter and obtained the specimen signatures of the accused for referring the same to the hand writing expert. He did not join any person in the investigation. On the conclusion of the trial, the evidence was put to the accused/appellant, who refuted the allegations levelled against him and his statement under section 342 Cr.P.C. was recorded. He produced Allah Bakhsh as DW. 1 who supported his stand but he himself did not enter into the witness box to make a statement under section 340(2) of Cr.P.C. in " disproof of the charge. The complainant has alleged that after receiving the illegal gratification, the accused/appellant had tempered with the record. Neither he had seen passing on of the illegal money nor he had seen him tempering with the record. In addition thereto the Investigating Officer had also not obtained the specimen to refer the same for obtaining the opinion of hand writing expert. The complainant has also, during the trial, suppressed material point and had shown his ignorance regarding the cancellation of the criminal case against Rab Nawaz and others, decision of the civil suit and his concurrence to the appointment of the arbitrator. The testimony of the witnesses did not inspire confidence. He is inimical and interested witnesses. „., His testimony could not be relied upon without some independent corroboration which was not forthcoming in this case. The appellant was not beneficiary of the changing of the record. The necessary corrections were made in the record under the orders of the Deputy Commissioner. If the prosecution case is examined in juxta position viz-a-viz the prosecution case, that the corrections were made under the orders of the competent authority, appear to be more probable and nearer the truth. No dis-interested witness was produced by the prosecution which reflected adversely on the prosecution case. For the foregoing discussion, I hold that the judgment of the learned trial Court was not found supporting correct reasoning in arriving at the conclusion for the conviction of the appellant which is liable to be set aside. Resultantly, the appeal is accepted. The conviction and sentence is set aside and the appellant is acquitted of the charge by giving him the benefit of doubt. The appellant is on bail, his bail bonds stand discharged. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 941 [Rawalpindi Bench] Present: RAJA ABDUL Aziz BHATTI, J. MUHAMMAD TANVIR-Petitioner versus STATE and fives others-Respondents Crl. Misc. No. 893/C-B-1995 dismissed on 19.3.1996 Bail-Cancellation of-- —-S. 497(5)-.-Cr.P.C.-Bail-Cancellation of--Offence U/Ss. 302/148/149 PPC-Respondents were though armed with fire-arms weapons, but it is not alleged that they caused any injury to deceased-Persons to whom fire-shot injuries were attributed in causing death of two deceased are not on bail-Held: When no specific allegation of causing any injury has been levelled against respondents they were entitled to bail-Petition dismissed. [P. 942] A Raja Khalid Ismail Abbasi, Advocate, for Petitioner. Mr. S.A Mahmood Khan Saddozai, Advocate, for Respondent No. 1 to 5. Qazi Ahmad Naeem, Advocate for State. Date of hearing: 19.3.1996. order This is a petition for cancellation of bail granted to respondents Nos. 1 to 5 by the learned Sessions Judge, Attock, vide his order dated 26.9.1994. 2. A case FIR No. 158 dated 5.7.1994 was registered under sections 302 148/149 PPC at Police Station Fateh Jang, District Attock. According to tie contents of the FIR, on 1.7.1994, there was a circumstances function of Atiq-ur-Rehman son of Faqir, resident of Dhoke Kumharan, where number of men and woman were present. In that gathering, a photograph was taken by Zahoor son of Muhammad Sabir accused, resident of the same village, which was objected to by the complainant and his brother Jahangir and Muhammad Afzal son of Aurangzeb who made complaint to Zahoor. On 4.7.1994, at 4-0 p.m. on the above dispute, an altercation took place between Khalid accused and Muhammad Afzal near a school, but the matter was patched up through the intervention of Mumtaz PW. However, Khalid and Zahoor felt it ill. On the fateful day, at 6-0 p.m. when the complainant alongwith Liaquat, Mumtaz, Jahangir and Muhammad Afzal was going on a tractor being driven by Liaquat PW towards their land for cultivating Jawar crop in a field and the moment they reached near the Well, Sajid armed with 12-bore pistol, Kala Khan armed with 12-bore gun whereas Abdul Majeed armed with a Danda and Khalid armed with a hatchet immediately came in their way and stopped the tractor. They hurled absuses and on this both the parties started fighting and gave Danda and fist blows to each other. Meanwhile, Kala Khan accused fired at Muhammad Afzal with his 12 bore gun which hit on his chest. Thereafter, Sajid accused fired at Jahangir with his 12 bore pistol which hit on the front of his chest and stomach. As a result of the firing, both Jahangir and Muhammad Afzal were seriously injured and after a short while, they expired at the spot. The incident was seen by the PWs. 3. The respondents-accused were granted bail in this case by the learned Sessions Judge, Attock, vide his order dated 26.9.1994. Learned counsel for the petitioner prays for cancellation of bail granted to them and mainly relied upon the observation made by this Court in Cr. Misc. No. 154- B of 1995 (Mumtaz Mi Khan vs. The State) wherein in the last para, it is mentioned that "this active concealment persuades me in these circumstances that the other party is aggressor." Actually, in the said case, it was alleged that the accused party had also reported the matter to the Police wherein they concealed the factum of murder of two persons, hence the aforesaid remarks were given. But the fact remains that Muhammad Afzal and Jahangir were committed to murder. The present respondents/accused were though armed with fire-arms weapons, but it is not alleged that they caused any injury to the deceased. The persons to whom fire-short injuries have been attributed in causing the death of aforesaid two deceased, are not on bail. In the circumstances when no specific allegation of causing any injury has been levelled against the present respondent/accused, they were entitled to bail and the learned Sessions Judge, Attock, has rightly released hem on bail. 4. In view of the above, I find no substance in the petition for cancellation of bail. Hence the same stands dismissed. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 942 [Rawalpindi Bench] Present: raja abdul Aziz bhatti, J. GHULAM MURTAZA-Petitioner versus STATE-Respondent Cr. Misc. No. 171/B-1996 accepted on 25.3.1996. Bail- —-S. 497 Cr.P.C.--BaU~Grant of-Prayer for-Offence U/Ss. 302/324/34 PPC-Only lalkara has been attributed to petitioner and while he was leaving alleged place of occurrence he told that he has taken revenge of murder of his son--During investigation he was found innocent and findings are based on statements of number of witnesses, who stated before I. Os. that at the time of occurrence he was present at Pindi Bhattian at a distance of about 100 km from place of occurrence-In F.I.R. it is stated that petitioner was present at place of occurrence at about 2 3.00 O'clock--At mid night when complainant and her brother alongwith children were sleeping at roof in light of lantern-This fact is not appealing that a burning lantern was kept on roof at that moment-­ Bail granted. [P. 944] A Ch, Muhammad Akhtar Khan, Advocate, for Petitioner. Mrs. Farzana Raud, Advocate for State. Date of hearing: 25.3.1996. order Briefly stated the facts of the case are that a case FIR No. 253 dated 27.9.1995 under section 302, 324, 34 PPG was registered at Police Station City. Chakwal Tehsil and District Chakwal against number of persons/accused. Names of the accused are mentioned in the FIR alongwith the present petitioner. 2. According to the contents of the FIR Sabtain Murtaza and Ghulam Raza armed with fire arm weapons came to the house of the complainant at night about 2.00 O'clock and fired at Muhammad Afzal whereby 12 injuries were caused to him. Consequently Muhammad Afzal died at the spot. The complainant Gulzar Begum real sister of Muhammad Afzal deceased was also present at the roof of the house, she also received three injuries on her left below, left arm and on the right leg. All the three injuries were caused by the fire-arm weapon fired by Ghulam Subtain and Ghulam Raza. While the allegation against the present petitioner is that when the accused were going back, he raised lalkara that he has taken the revenge. The motive for the crime is stated that the accused party had some suspicion regarding the murder of Saqlain Murtaza son of Ghulam Murtaza (the present petitioner). For this very reason they committed the^piurder of Muhammad Afzal, real brother of the complainant. 2. Learned counsel for the petitioner seeks bail on the grounds that though the name of the petitioner is mentioned in the FIR but he was empty handed; that allegedly he raised only lalkara that he has taken the revenge of the murder of his son; that during investigation he was found innocent by the three Investigating Officers; that the petitioner was at Pindi Bhattian, District Hafizabad, when the alleged occurrence took place; that certain witnesses have been produced in support of his innocence (regarding the plea of alibi); that the motive is not directly attributed to the present petitioner. Learned counsel relies upon the precedents 1996 SCMR 73 & 1994 SCMR 2161. 3. On the other hand, learned state counsel has opposed the bail petition on the grounds that there is an injured eye-witness/PW i.e. Mst. Gulzar Bibi real sister of the deceased; that the motive is also mentioned in the FIR; that though the name of the petitioner is mentioned in column No. 2 of the challan but the findings given by the I.Os are not b sed on cogent evidence, regarding his innocence; that lalkara has been attributed to the petitioner but the nature of this lalkara is totally different because quite openly he said that he has taken revenge of the murder of his son. 4. In rebuttal, learned counsel for the petitioner states that name of the petitioner has been mentioned in column No. 2 of the challan after investigation and the findings of the I.Os. are based on the statements of number of witnesses produced by the petitioner/acccused. Under these circumstances, he has some right to be released on bail because it is yet to be found that he is quality or not. 5. I have heard the arguments of the learned counsel for the parties and gone through the record. It is an admitted fact that only lalkara has been attributed to him and that while he was leaving the alleged place of occurrence he told that the has taken the revenge of the murder of his son. During investigation he was found innocent and the findings are based on the statements of number of witnesses, who stated before the I.Os. that he was present at Pindi Bhattian at a distance of about 100 Km from the place of occurrence. In the FIR it is stated that the petitioner was present at the place of occurrence at about 2/3.00 O'clock. At midnight when the complainant and her brother alongwith children were sleeping at the roof in the light of lantern. This fact is not appealing that a burning lantern was kept on the roof. 6. Keeping in view the facts and circumstances of the case, I am of the view that the petitioner is entitle to bail, therefore, the petitioner is granted bail subject to his tendering bail bonds in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Trial Court. Any observation made in this order shall not effect the trial of this case. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 945 Present: ch. khurshid ahmad, J. JAHANGIR KHAN-Petitioner versus STATE-Respondent Crl. Revision No. 44/96 partly accepted on 10.3.1996. Surety Bond— —S. 514-Cr.P.C.--Sessions Judge forfeited surety bonds of petitioner to extent of Rs. 90.000/- each-Challenge to-High Court do not see any Illegality or perversity in order of forfeiting surety bonds-However, point of forfeiture being excessive is worth consideration-Both petitioners are agriculrurists-They do not belong to village of absconding accused whose sureties they stood and filed their bonds-Petitioners had in their replies before Session Court specifically pleaded that they had constantly undertaken search of absconding accused and they were always ready to produce same if found out-Impugned order is silent on this point-There could be no community of interest between sureties and absconding accused —Ex-facie this fact had also been lost sight of Sessions Judge-­ High Court feel that balance can only be kept etween undue leniency and undue severity only by taking into consideration financial status of petitioners and their professions—Held: High Court feel ends of justice are, however, be secured if petitioners in both criminal revisions shall be adequately punished by requiring each of them to pay rupees 10,000/- each as forfeited amount-Revision petitions are accordingly accepted to that extent only-Order accordingly. [Pp. 946 & 947] A, B C, & D Mr. Ehsan Qadir Shah, Advocate, for Petitioner. Muhammad Aslam Malik, Advocate, for Respondent. Date of hearing: 10.3.1996. judgment The petitioner Jehangir Khan and Baqri, petitioner in Cr. Revision No. 45/96, stood sureties for Rab Nawaz son of Muhammad Ali, caste Ranjha resident of Bakhowal, Tehsil Bhalwal District Sargodha and said Rab Nawaz was released on bail. The petitioners stood sureties in the sum of Rs. 1.00,000/- each. The said accused absconded and failed to appear in Court. 2. Proceedings under Section 514 Cr.P.C. were initiated by Sessions Judge, Sargodha . Notices to both the petitioners were separately issued on 4.12.1995. Both the petitioners appeared in the Court of Sessions Judge, Sargodha and filed their reply to the notice and prayed for vacation of notice. The Sessions Judge however, after hearing the petitioners and District Attorney, forfeited the surety bonds of the petitioners to the extent of Rs. 90,000/- each, by a single order and the said order has been impugned in Cr. Rev. Nos. 44/96 and 45/96 separately. Both the revision petitions are proposed to be disposed of vide this single judgment. 2. It has been submitted by the learned counsel for the petitioners that the petitioners were not related to Rab Nawaz son of Muhammad Ali accused, they had been taking all measures for the production of the absconding accused; they had no direct interest in the matter nor there was any blood relationship between the absconding accused and the sureties and that they secured no pecuniary benefit by standing sureties to the said accused and that the same was an act of benevolence and sympathy to enable the incarcerated accused to come out of judicial lock up, join his family and undertake his normal profession apart from defending his case. It was also contended that the forfeiture of the bonds was not justified in law and that the propriety was against forfeiture of 90% of the bond amount and that the forfeiture was excessive as against the poor petitioners. 3. The learned counsel appearing on behalf of that State has opposed the application. He has submitted that both the revision petitioners were aware of the previous conduct of the absconding accused and that they had consciously stood sureties and deserve no concession and that the impugned order was neither perverse nor improper. 4. I have heard the arguments addressed at the bar and I have also gone through the order. One of grounds taken by the Lower Court was that, "Keeping in view the circumstances of this case and the rise in the graph of the crimes " and in my view rise in the graph of the crime was no reason for forfeiture of the surety bonds to the extent of 90% i.e. Rs. 90,000/- each. I however, do not see any illegality or perversity in the order of forfeiting the surety bonds. However the point of forfeiture being excessive is worth consideration. Both the petitioners are agriculturists. They do not belong to the village of the absconding accused whose sureties they stood and filed their bonds. It is also not the case of the State that the petitioners were either related to the absconding accused or they had secured any pecuniary benefit. Their Lordships had laid down golden principle in Dildar and another vs. The State (PLD 1963 S.C. 47). Their lordships observed: " ........ Sureties are not constituted as custodians of accused persons, and in the absence of proof to the contrary, it may generally be assumed that they do not gain by standing surety. The system of releasing accused persons on bail has several aspects of importance to the administration of justice generally. It avoids anything in the nature of punishment in advance, since restraint upon liberty even when applied for the purpose of ensuring that a case is duly enquired into and judged, necessarily involves loss of personal rights. At the same time, the release of accused persons on bail assists in the administration of justice by preventing over-crowding in the available spaces of imprisonment. Therefore, in dealing with cases of sureties who are in default, a balance has to be held between undue leniency, which might lead to abuse of the procedure and interference with the course of justice in a large number of cases, and on the other hand, undue severity, which might lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below " (underling is mine). 5. The petitioners had in their replies before the Sessions Court specifically pleaded that they had constantly undertaken search of the absconding accused and that no stone was left unturned by them in looking and searching the said accused and they were always ready to produce the same if found out. The impugned order is silent on this point. Reply to the notice was filed by the petitioners on 17.1.1996 and it appears that the Sessions Judge did not allow any further opportunity to the present petitioners in locating and finding out the absconding accused and on 22.1.1996 forfeited the surety bonds. 6. From the record it is proved that Rab Nawaz absconding accused belonged to village Bakhowal Tehsil Bhalwal whereas Jehangir Khan etitioner was resident of Khumb Nao and Baqri petitioner in Cr. Revision No. 45/96 was resident of Khamb Kunha. There could be no community of interest between two sureties and the absconding accused. Ex-facie this fact had also been lost sight of by the Sessions Judge. 7. Keeping in view the facts and circumstances narrated above I feel that balance can only be kept between undue leniency and undue severity only by taking into consideration the financial status of the petitioners and their professions. They admittedly were the tillers of the land and had acted through benevolence and sympathy for the accused in standing sureties and filing their surety bonds. The ends of justice are however, to be secured and I feel that the petitioners in both the criminal revisions shall be adequately punished by requiring each of them to pay Rs. 10,000/- each as forfeited amount. The revision petitions are accordingly accepted to the extent only. (M.S.N.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 948 [Circuit Court Larkana] Present: abdul majid khanzada, J. SONO--Applicant versus STATE-Respondent Crl. Misc. A. No. 99 of 1995 accepted on 20.8.1995. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 561-A read with Sections 110/55-That applicant is by habit thief, patharidar and criminal, habitually harbours to other offenders and supplies meals to criminals, that he receives and disposes of stolen property on payment of bhung and that he is father of famous a dacoit and that he aids his son in offences and supplies him weapons, that he is so desperate and dangerous that his being at large without security is hazardous to community-Allegations of--It is a settled law that there should be some concrete evidence before initiating proceedings and that only one proceeding U/S 109 Cr.P.C. has been cited against applicant/accused and rest of allegations are sterio-type-Not a single private person has been cited as a witness-Police has failed to give details of crime, time and place of alleged incidents-Bad reputation of applicant is not supported by evidence of any public person, mere mentioning by police that applicant has a bad reputation and his son is a dacoit and he is a notorious and criminal without specifying instance or citing crime in which he is involved or incidents of breach of peace, does not make a citizen liable to be prosecuted under section 110 Cr.P.C.-Order U/S 112 Cr.P.C. was passed without any progress-Proceedings against applicant are clearly abuse of process of Court-proceeding Quashed. [Pp. 949 & 950] A, B & C Mr. Roshan All Solangi, Advocate, for Appellant. Mr. Abdul Patch Mughal, Advocate, for State. Date of hearing: 20.8.1995. judgment The brief facts leading to this application are that SDPO Kambar order SHO Drigh Police Station on 8.10.1994 that he has received the information from the reliable sources that Sono son of Haji Khan Chandio 2. Muhammad Khan s/o Arab Tunio r/o Thori Bijar Taluka Kambar are men of bad character. There is general complaint for sheltering the criminals and arranging meals for them. As such he has directed the SHO to challan the above i.amed persons under section 110 Cr.P.C. and report compliance. On receiving such orders from the SDPO, Kambar, SHO Drigh Police Station filed a report being No. 5/1994 dated 9.10.94 under section 110/55 Cr.P.C. against the present applicant before the SDM, Kambar and has shown the arrest of applicant/accused in judicial lock-up of Kambar where he was already detained in proceedings under section 109 Cr.P.C. of police station, Kambar. S.D.M, Kambar on this report passed order under section 112 Cr.P.C. on the same day which was subsequently read over to the applicant under section 113 Cr.P.C. on 17.10.1994 for which the applicant pleaded not guilty. The main allegations against the applicant as laid down in the order of the SDM under section 112 Gr.P.C. are that he is by habit thief, patharidar and criminal; habitually harbours to other offenders and supplies meals to the criminals; that he receives and disposes of stolen property on payment ofbhung and that he is father of famous dacoit Majoo Bijarani and that he aids his son in offences and supplies him weapons; that he is so desperate and dangerous that his being at large without security is hazardous to the community. The learned counsel for the applicant has argued that the allegations against the applicant are of sterio-type and mechanical one. They are vague and no specific incident has been quoted nor there is any private person cited as a witness and that only one proceeding has been shown against him to be under section 109 Cr.P.C. filed by the S.H.O. P.S Kambar which is also pending and has not been decided as yet. He has further argued that the applicant has been victimized due to party politics and the allegations levelled against him are sterio-type and are vague. Mr. Abdul Fateh Mughal Advocate for the State does not oppose the application and concedes and has stated that there was no material before the S.D.M., Kambar for taking cognizance and the allegations levelled against the applicant are sterio-type, as such he concedes. I have heard the arguments of both the counsels and have also perused the record. It is a settled law that there should be some concrete evidence before initiating the proceedings and that only one proceeding under section 109 Cr.P.C. has been cited against the applicant/accused and the rest of the allegations are of sterio-type. In both the cases not a single private person has been cited as a witness. On perusal, it reveals that the police has failed to give the details of crime, time and place of the alleged incidents. Bad reputation of the applicant is not supported by the evidence of B any public persons, mere mentioning by the police that the applicant has a bad reputation and his son is a dacoit and he is a notorious and criminal without specifying the instance or citing crime in which he is involved or the incidents of breach of peace, does not make a citizen liable to be prosecuted under section 110 Cr.P.C. The order under section 112 Cr.P.C. was passed on 9.10.1994 for 12 months, almost 10 months have passed without any progress. I am of the view that continuing of the proceedings against the applicant which are pending since 9.10.1994 are clearly abuse of the process of the court. In view of the above discussion, I quash the proceedings. Applicant is on bail, his bail bond is discharged accordingly. (M.S.N.) Proceedings Quashed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 950 [Circuit Court Larkana] Present: agha safiuddin khan, J. JAMOO alias JAN MUHAMMAD-Appellant Versus STATE-Respondent Cr. Jail Appeal No. 59 of 1994 and Cr. Jail Appeal No. 81/1994 Sukkur Bench) accepted on 5.10.1995. Arms Ordinance 1965 (W.P. Ord. XX of 1965)-- —S, 13(d)"Rifle-Recovery of-Conviction for-Challenge to-High Court need not enter into merits of case as trial of appellant by Additional Sessions Judge for offence U/S 13(d) Arms Ordinance, 1965 was coram non Judice and conviction recorded against him is a nullity in eye of law-­ Appeal accepted. [P- 951] A Mr. Ahmad Ali Shaikh, Advocate, for Appellant. Mr. Abdul Fatah Mughal, A.A.G. for State. Date of hearing: 5.10.1995. judgment Appellant Janoo alias Jan Muhammad son of Nawab Marfani was tried by Mr. Mehar Khan, 1st. Additional Sessions Judge, Jacobabad for the offence under Section 13(d) Arms Ordinance, 1965, who found him guilty and vide judgment dated 8.8.1994, sentenced him to suffer R.I. for seven years. By this appeal filed under section 410 Cr.P.C., the appellant has challenged his conviction and sentence. The appellant on 28.3.1989 about 2-15 p.m. at the bank of Begari Canal beside the bridge of Inspection Bungalow in deh Malhooabad, when he was going armed with one unlicensed rifle bearing No. 9990/2222 alongwith 10 live bullets of 303 was arrested by SHO Allah Dino of Police Station Mouladad vide police Roznamcha entry No. 9 on 28.3.1989 for investigation of crime No. 18/1989 under section 364/365 PPC for the abduction of Dr. Abbas Ali of Jacobabad city. Since appellant had no valid licence for the rifle, hence case under section 13(d) Arms Ordinance 1965 was registered. After usual investigation, the appellant was challaned alongwith the main case of the abduction. The appellant pleaded not guilty and claimed a trial. At the trial, the prosecution examined PW Khair Muhammad Additional SHO and H.C. Muhammad Hayat. In his statement recorded under section 342 Cr.P.C. the appellant has denied the case of the prosecution and he has not examined himself on oath nor he led any evidence in defence. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty and convicted him accordingly. I have heard Mr. Ahmad Ali Shaikh learned counsel for the appellant and Mr. Abdul Fatah Mughal Advocate for Additional A.G. I need not enter into the merits of the case as the trial of the appellant by Additional Sessions Judge for the offence under section 13(d) Arms Ordinance, 1965 was coram non judice and the conviction recorded against him is a nullity in the eye of law. Section 14-A of the Arms Ordinance, 1965, which was added in the year 1976, ousted the jurisdiction of Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge to try such cases in the following words:- (1) "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), an offence punishable under section 13 or section 14 shall, unless it has been committed in respect of any of the arms, ammunition or military stores referred in the proviso to the said section 13 be triable by a Magistrate of the first class. (2) All cases relating to offence triable by a Magistrate of the First class under sub-section (1) and pending in a Court of Session immediately before the commencement of the Pakistan Arms (Amendment) Ordinance 1976, in which the charge had not been framed shall, on such commencement stand transferred to the Court of the Magistrate of the First Class having jurisdiction over such cases." The following cases lend support to the view expressed by me in the above: - (i) Falak Sher v. The State 1987 MLD 1156. (ii) Muhammad Anwar v. The State 1987 P.Cr.L.J. 2049. (iii) Muhammad Tahir v. The State 1988 MLD 143. (iv) Muhammad Tahir v. The State PLD 1989 Pesh. 162. (v) Mahmood alias Sultan Mahmood v. The State 1989 MLD 4829. (vi) Sudheer v. The State 1991 P.Cr.L.J. 736. (vii) AkbarKhan v. The State 1991 MLD 1829 and (viii)Mir Azam Khan v. The State PLD 1995 Karachi 504. In the case of Asal Khan v. The State reported in 1990 P.Cr.L.J. 449, the provisions of sections 235 and 239 Cr.P.C. were considered in relation to section 14-A of the Arms Ordinance, 1965, and it was held:- "I am afraid this is not the correct conclusion and I would respectfully disagree with my learned brother Muhammad Ishaq Khan, J. The reason for my conclusion is that since a forum for the trial of such an offence has been mentioned in the Ordinance in section 14-A, the provisions of subsection (1) of section 29 of the Code are attracted and without regard to the provisions of sections 235 and 239 of the Code this offence was to be tried by a Magistrate of the First Class having jurisdiction in the area. It is immaterial that no corresponding amendment was made in the Second Schedule to the Code in order to bring it in conformity with the provisions of section 14-A of the Ordinance, for the simple reason that the provisions of subsection (1) of section 29 of the Code are very clear." As the First Class Magistrate had the exclusive jurisdiction to try the case against the appellant under section 13-D of the Arms Ordinance, 1965, the cognizance taken by the learned 1st. Additional Sessions Judge, Jacobabad against him was illegal and the conviction awarded to him is without jurisdiction. Consequently the conviction recorded against the appellant is set aside and the appeal is allowed. , The appellant has almost completed the sentence awarded to him. In such a situation, his retrial is not called for. The appellant who is in custody be released forthwith, if not required in any other case. Appeal allowed. (M.S.N.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C ( Karachi ) 1082 (DB) [Circuit Court Hyderabad ] Present: ghous muhammad and rasheed A. razvi, JJ. Mst. RANI-Appellant versus STATE-Respondent Criminal Appeal No. 02/1992 accepted on 3.3.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 342 inculpatory part of statement of an accused U/S. 342 could not be used against him while excluding exculpatory part, unless there were other circumstances, direct or indirect, connecting the accused with commission of offence. [P. 1090] C (ii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VH of 1979)-- —S. 10(2)-Offence of Zma--Conviction for-Challenge to-Mere pregnancy is not sufficient to convict a woman for zina, especially where she claims pregnancy to have been caused due to her rape/zma bil jabar by man/men who later stand acquitted on any ground. [P. 10S9JA (iii) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S. 10(2)~Offence of Zina--Conviction for-Challnege to--To convict a woman for zina, prosecution would have to discharge heavy onus of proof by bringing forth positive and independent evidence that woman actually and in fact had committed zina with her own free will and consent with another man to whom she was not lawfully married to. [P. 1089] B (iv) Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S. 10(2)--0ffence of Zma--Conviction for--Challenge to-Offence of "Zina" is by itself in the nature of a joint offence requiring identification of both a man and a woman, distinctly--In case anyone of them fails to be so identified, no offence of "Zina" can be made out by prosecution. [P. 1091] D Mr. Faiz Muhammad Qureshi, Advocate, for Appellant. Mr. Shaft Muhammad Memon, Advocate, for the State. Date of hearing: 14.6.1995. judgment Dr. Ghous Muhammad, J.-The present appeal arises out of the judgment of the then Additional Sessions Judge, Kotri (Mr. Akbar M. Memon) (hereafter referred to as "the A.D.J.") dated 23.12.1991 whereby the appellant Mst. Rani had been convicted under Section 10(2) of the Offences of Zina (Enforcement of Hudd) Ordinance, 1979 (hereafter referred to as the "1979 Ordinance"), while sentencing her to undergo rigorous imprisonment for two years with seven stripes and to pay a fine of Rs. 1,000/- or in default to undergo rigorous.imprisonment for six months. 2. The facts relevant for disposal of the present appeal are that the appellant on 17.10.1987 has lodged an F.I.R. with the Kotri Police Station alleging, inter alia, that one Faqiro, aided and abetted by one Rehamt, had committed rape/Zina-bil-Jabr with the appellant at the point of knife and also threatened dire consequences in case she disclosed .the same to her parents. At the time of lodging the F.I.R. the appellant was seven months pregnant and had alleged that such pregnancy had been caused by the unlawful sexual intercourse by the said Faqiro when he had raped her. That thereafter Faqiro, Rehmat and the appellant were all rounded up and charged under the 1979 Ordinance to which all three pleaded not guilty. 3. The prosecution produced five witnesses which were:- (a) P.W. 1, Dr. Kausar Soomro, Medical Officer, Kotri Hospital who essentially produced the medical examination report of the appellant, confirming pregnancy; (b) P.W. 2, Muhammad Sharif, the mashir of arrest of Faqiro and Rehmat who produced the mashirnama; (c) S.I.P./Incharge Police Station, Amir Bux, the Investigating Officer who essentially produced the F.I.R. and then mashirnama of the place of incident; (d) P.W. 4, Rehmat, father of the appellant; (e) P.W. 5, Nawab Bibi, mother of the appellant; From the record and proceedings as also the evidence which was recorded the following, inter alia, appears:- (a) the appellant in cross examination alleged that immediately after the incident of rape/zma biljabr she had intimated the same to her parents, however, due to threats from Faqiro and Rehamt the parents have not involved the law enforcing agencies, while it was only once she was seven months pregnant and could not hide the pregnancy that she was left with no other option but to lodge an F.I.R.; (b) both Faqiro and Rehmat in their respective testimonies have alleged false implication due to enmity with the appellant. It is alleged that Paqiro was engaged to the appellant but due to her bad character he had broken the same and sought return of Us. 3,000/- from appellant's parents which he had spent on account of ante-nuptial arrangements. Faqiro had alleged that the F.I.R. had been lodged as a counter-blast to an inquiry instituted by him through the police against the appellant's parents and the decision of &panchayat which was in favour of Faqiro. It is alleged that both the said inquiry and the decision of the panchayat concerned the return of money to Faqiro by the appellant's parents; (c) It was further alleged by Faqiro and a defence witness priest Parkinson John that it was the talk of the entire Mohalla that appellant had been impregnated by one Rashid, a resident of the Mohalla. 5. The learned A.D.J. while appreciating and sifting the evidence and testimonies acquitted both Faqiro and Rehmat, while convicting the appellant under Section 10(2) of the 1979 Ordinance. 6. The learned A.D.J. had passed the acquittal orders in favour of Faqiro and Rehmat on grounds that there had been an inordinate delay in lodging the F.I.R., while there was no evidence against the two accused except the word and accusations of the appellant It is pertinent to note that a defence witness was put up by the appellant Le. Enayat Ayub Khokhar who was alleged to have deposed a circumstantial testimony that at the time of the incident in issue he had seen Rehmat and Faqiro walk into the appellant's house, Rehmat coming outside and waiting while closing the door, Faqiro thereafter emerging from inside the house, and then the said Enayat Ayub Khokar entering into the appellant's house and finding her in tears. The testimony of Enayat Ayub Khokhar was discredited when it was rought on record that he was 90 years of age, was totally blind by one eye and had a very weak eye sight in the other eye, while he had admittedly and allegedly seen Faqiro and Rehmat entering and leaving the appellant's house from a distance of at last one furlong. Against the acquittal of Faqiro and Rehmat no appeal had been filed. The learned A.D.J. in convicting the appellant had been swayed by the argument of the learned A.P.P. that the evidence of the Woman Medical Officer testifying pregnancy was sufficient to convict the appellant with the commission of the crime of Zina under Section 10(2) of the 1979 Ordinance. The learned A.D.J. was further swayed in coming to this conclusion by the fact that the appellant had remained silent for seven months, while it had become the talk of the Mohalla that she had willingly surrendered and subjected herself to sexual intercourse by someone, probably Rasheed, while she was still single. 8. I have perused the record and examined the arguments advanced by both sides as also given the entire matter a serious thought as the same involves far reaching repercussions, while I feel that the resolution of the dispute can well be achieved by finding answers to the following issues:- (a) whether mere pregnancy is sufficient to convict a woman for Zina,, especially where she claims the pregnancy to have been caused due to her r&pe/Zina bil Jabr by man/men who later stand acquitted on insufficiency of evidence; (b) whether the prosecution in the situation envisaged in (a) above is required to discharge the heavy onus of proof independent of the pregnancy and whether the factum of pregnancy alone equates to discharge of that burden of proof; (c) whether in the situation as envisaged in (a) above the woman herself is entitled to any benefit of doubt; (d) whether Zina is a joint offence which would essentially require proven identification of a counter part, and in

default whereof whether the woman could be convicted alone. 9. In order to answer the above issues I would like to refer to certain decisions which have a relevant bearing on the discussion. 10. A Division Bench of the Federal Shariat Court while deciding the case of Mst. Jehan Mian v. The State, (PLD 1983 FSC 183) had taken the view that an accused woman's pregnancy per se proved by a medical report was a clear proof of her sexual intercourse with at least some one. In this case a woman accused two men for committing Zina bil Jabr with her. After six months preganancy the woman lodged an F.I.R. in this regard. The Federal Shariat Court agreed with the verdict of acquittal of the two men entered by the trial Court on grounds that there was no evidence against the accused except the allegation of the woman while even that was suspect as the woman was already six months' preganant at the time of lodging of the F.I.R., and earlier the woman had completely hidden this fact from her family and no complaint had been lodged by her. The Court, however, went a step further and held that the pregnancy of the woman was unexplained while she had not explained as to what induced her to keep quiet for such a long time. In these circumstances the learned Judges further observed that it was quite clear that the woman had sexual intercourse with at least some one out of her own free will and accordingly she was convicted under Section 10(2). 11. The decision of the Federal Shariat Court in Jehan Mina appears to be in conflict with an earlier decision of the Full Bench of Federal Shariat Court in Mst. Sakina v. The State, (PLD 1981 FSC 320). In the said Sakina case it was, inter alia, observed that mere pregnancy of a woman was not sufficient to justify the charge of Zina against her. The observations of the learned Chairman, Justice Aftab Hussain, (as he then was) suggest that further evidence was required to have been brought on record by the prosecution other than mere fact of pregnancy, as he held: "The next question is about the involvement of Mst. Sakina in the commission of Zina since she was found to have pregnancy of six weeks on 10.10.1979 and as such her preganancy earlier than the date of her elopement with Wali Dad. There is no other evidence to charge Mst. Sakina with the commission of Zina." (at p. 323). 12. A somewhat similar view was taken in a subsequent judgment by the Federal Shariat Court in the case of Mst. Safia Bibi vs. The State (reported in PLD 1985 FSC 120) + (NLR 1985 SD 145). The decision in Safia Bibi has been tendered by a single bench comprising Aftab Hussain CJ, (as he then was). The facts of the case are quite similar to the facts in the present case. In Safia Bibi a woman alleged rape/Zma bil Jabr committed by an accused male to be the cause of her pregnancy. At trial, the Court of Sessions acquitted the male accused for want of evidence, however, the woman was convicted under Section 10(2) of the 1979 Ordinance on grounds that mere pregnancy was sufficient to find a conviction of Zina against her. Aftab Hussain, CJ, while writing for the Court, undertook an exhaustive review of the relevant provisions of the Holy Quran as also the other authoritative texts. The learned Judge thus came to the conclusion that the verdict of the Court of Sessions was only correct in so far as the acquittal order of the male accused was concerned, since in the absence of any other evidence other than the statement of the woman, the male accused should not be convicted in respect of Zina bil Jabr. While dealing with the position of the female-accused, the Court came to the conclusion that she could not be convicted for Zina when she pleaded pregnancy/child birth to be a result of commission of offence of rape on her. In this respect it would be pertinent to reproduce the relevant observations which are as follows:- "18. Even under Shariah if a girl makes such a statement as made in the present case, she cannot be convicted of Zina. The principle of Fiqh is that she will be asked about the cause of pregnancy, if she says that she was forced to commit adultery or someone had committed sexual intercourse with her under suspicion about her identity, her statement will Jae accepted and she will not be convicted. This is based on the tradition of Hazrat Ali that when Shuraha came to him and said, "I have committed adultery", Hazrat Ali said to her, "You might have been forced or someone might have committed sexual intercourse with you while you were sleeping". (Kitabul Fiqh alal Mazahibil Arabaa (Urdu translation), Vol. V, 19. If an unmarried woman delivering a child pleads that the birth was the result of commission of the offence of rape on her, she cannot be punished. This is the view of the Hanafis and the Shafis. But Imam Malik said she shall be subjected to Hadd punishment unless she manifested the want of consent on her part by raising alarm or by complaining against it later. (Ela ul Sunnah, Vol. XI, p. 666, Bidayat ul Mujtahid, Vol. II, p. 329, Fathul Qadeer, Vol. V, p. 52, Al Mugni by Iba-e-Qudama, Vol. VIII, p. 186, Badaius Sanai by Kashani, Vol. VHI, p. 62, Mabahis fil Tashri il Janaiyyil Islami by Dr. Muhammad Farooq Nabban, p. 225, 226. Altashri il Janaiyyal Islami by Abdul Qadir Auda, Vol. II, p. 364, Al-Tashriul Janaiyyul Islami, Vol. II pp. 434, 435, Tabyinul Haqaiq by Zailai, Vol. Ill, p. 184). Ibne Qudama said that it is generally held that there is no Hadd on one who is raped. This view was held by Omar, Alzhari, Qatada, Shafei and the people of opinion (inter alia. Hanafis). He did not know of any contrary view. This (view) is based upon the Hadith from the Holy Prophet who said :- ("my people are excused for mistakes, forgetfulness and for anything done under compulsion"). It is reported from Abdul Jabbar on the authority of his father that woman was raped and the Prophet (S.A.W.) acquitted her of the charge punishable with Hadd (Al Mughni, Vol. Vffl, p. 186). 13. I have further been able to lay my hand on two decisions of the single bench of the Federal Shariat Court, both of which have been authored by Ch. Muhammad Siddiq, J. (as he then was), i.e. Mst. Siani v. The State (PLD 1984 FSC 121) and Mst. Sukhan v. The State, (1985 P.Cr.L.J. 110). The precise question considered in Sukhan was whether in the absence of any direct or positive evidence, a female accused could be convicted under Section 10(2) of the 1979 Ordinance, merely on the basis of the Chemical Examiner's report (see para 17 p. 117). The Court, while dealing with this issue, dilated upon the term Zina to comprise the following ingredients:- (i) there should be man and a woman; (ii) such man and a woman are not validly married to each other; (iii) such man and woman should have committed sexual intercourse with each other; (iv) such man and woman should have committed sexual intercourse wilfully; (v) there ought to be a penetration. (seePages. 118 to 119). While examining these five ingredients, the Court came to the conclusion that all of them were conspicuously absent as the prosecution had miserably failed to produce any evidence to substantiate the charge of Zina. It was further observed by the learned Judge that a mere presence of semen on the vaginal swabs of the woman accused would not bring her case within the definition of the offence of Zina as contemplated by Section 4 of the 1979 Ordinance, unless it was further proved that the said semen was the result of sexual intercourse committed by the woman accused with her consent with a man who was not legally married to her. It was further held that a mere medical examination of the woman accused and the positive report of the Chemical Examiner regarding her vaginal swabs would not be sufficient to prove Zina (see para 20 at page 119). The learned Judge Sukhan allowed the appeal while acquitting the woman appellant on grounds that the entire matter was a case of no evidence as admittedly none of the witnesses produced by the prosecution had alleged that Sukhan had committed Zina with any of the co-accused. In other words, there was no direct or positive evidence of Zina available on record (see para 16, p. 117). A somewhat similar approach was taken in the earlier case of Siani (referred above) where Ch. Muhammad Siddiq, J. took the view that where no direct positive evidence was laid by the prosecution to substantiate a charge of Zina under Section 10 of the 1979 Ordinance, the expert evidence of a doctor alone, was not sufficient to base such a conviction. At best the said medicd evidence could only serve as a piece of corroborative testimony but the same by itself could not be made the foundation of conviction of Zina. In Siani the learned Judge further observed that mere preganancy/abortion of or birth of an illegitimate child by an unmarried girl/widow or a married woman whose husband had no access to her during the relevant period was not sufficient to hold her guilty under section 10 of the 1979 Ordinance. 4 14. After having reviewed the above decisions I am of the view that the decision of the Division Bench of the Federal Court in Jehan Mina is not only in conflict with the earlier Full Bench judgment of Sakina but also the later single bench decisions in Sukkan, Sofia Bibi and Siani have left the decision in Jehan Mina to stand in isolation. The decision in Jehan Mina with utmost respect ought to be only confined to annals of legal history and ought not be followed in view of the following: - (i) Jehan Mina is in conflict with the law of precedent, being violative of the earlier Full Bench decision of Sakina; (ii) Jehan Mina is in conflict with the provisions of Shariah as has been crystalised in Sofia Bibi; (iii) Jehan Mina is also in conflict with the principles and law of evidence that the burden is on the prosecution to prove through some positive and direct evidence that the offence of Zina has been committed by the accused and that mere medical testimony on its own would be of no consequence and at best can only serve to be corroborative in nature. This conflict has been borne out by all the decisions discussed i.e. Sakina, Sukhan, Sofia Bibi and SianL 15. In light of the above discussion I would answer issues Nos. (a), (b) and (c) framed in paragraph 8 above in the following manner:- (i) mere pregnancy is not sufficient to convict a woman for Zina, especially where she claims the pregnancy to have been caused due to her rape/Zma bil Jabr by man/men who later stand acquitted on any ground; (ii) to convict a woman for Zina, the prosecution would have to discharge the heavy onus of proof by bringing forth positive and independent evidence that the woman actually and in fact had committed Zina with her own free will and consent with another man to whom she was not lawfully married to. In this regard it may also be stated that mere proof of pregnancy or some form of medical testimony/report on its own could be of no consequence as the latter would at best only serve to be corroborative in nature; (iii) in the situation as envisaged in (i) above the woman like any other accused is also entitled to a benefit of doubt. 16. Applying the above propositions to the facts of the instant case I feel no hesitation to hold that the trial court had materially erred in finding a conviction of Zina against the appellant, Rani, only on grounds of proof of unlawful pregnancy and that the appellant had inexplicably delayed in lodging the FIR. It may also be observed that the inordinate delay in lodging the F.I.R. could only be vital in relation to the case of the accused men, however, the same could be of no consequence as regards the guilt of the female accused in this context. On the contrary, this point would fall in favour of the female accused i.e. the appellant, since she could well forward the plea that the inordinate delay by the prosecution in detecting her preganancy would entitle her to an acquittal on the general principle that any delay in lodging the F.I.R./complaint weakens the case of the prosecution/complainant. I am of the view that since the prosecution has not been able to bring forth any positive and concrete evidence, other than the medical testimony, that the appellant actually committed Zina with another man to whom she was not lawfully married to, the prosecution has miserably failed to discharge the heavy onus of proof placed on it, which would also entitle the appellant to a benefit of doubt. I accordingly set aside the judgment of the trial court in relation to the appellant and grant her a verdict of acquittal. 17. Before parting with the judgment I feel it pertinent to at least two more aspects of the case. 18. In Jehan Mina the Court at para 17, (page 187) had rejected the plea of the learned defence counsel that where prosecution e%idence is unreliable and is disbelieved and the conviction is based upon the statement of the accused alone then the whole statement should be taken into consideration and merely the inculpatory part that statement cannot be relied upon, while ignoring the exculpatory portion of that statement. The Court while rejecting this contention placed reliance upon A.M. Nur Mian v. Mokhlesur Rahman Almansuri & another (PLD 1967 Dacca 503) to obsen-e that a statement under Section 342 Cr.P.G. was only meant to discover the truth and the explanation of the accused or his failure to explain was sometimes the most incriminating circumstance against him and that it would be injurious to the accused if a false or unsatisfactory statement was given. With utmost respect I would not pursuade myself to subscribe to this view taken in Jehan Mina as a Full Bench of the Hon'ble Supreme Court in Sultan Khan vs. Sher Khan and others (PLD 1991 SC 520) has now categorically laid down the principle that the inculpatory part of tie statement of an accused u/s. 342 Cr.P.C. could not be used against him while excluding the exculpatory part, unless there were other circumstances. direct or indirect, connecting the accused with the commission of the o£fenca In the present case, the inculpatory part of the statement of the appellant u/s 342 Cr.P.C. that she had been subjected to unlawful sexual intercourse could not be viewed in isolation without also considering the exculpatory part that the said unlawful sexual intercourse was in consequence of Zina. bil Ja&r/rape committed on her. This is more so since there is no direct or indirect circumstances which can connect the appellant with the commission of the offence of Zina as I have already held that mere factual of unlawful pregnancy alone is not sufficient. There is yet another aspect that I wish to dialate upon Le. once an explanation is sought by the woman accused, to explain her unlawful preganancy or illegitimate birth of a child from her. and her explanation that the same was a result of rape committed on her by the male accused is found to be implausible, that implausibility in the explanation alone is not sufficient to convict her for Zina. 19. The next and final issue which I have been able to resolve after careful deliberation and which I feel touches upon the very root of criminal jurisprudence is whether Zina is an offence which would require positive identification of both a consenting man and a woman. In Sukhan (referred above) the learned Judge at paragraph 19 (page 118) while defining the term "Zina" only appears to have touched this aspect without actually probing the matter further and giving a conclusive finding in this regard when he laid down the ingredients of Zina to include that "there should be a man and a woman". The learned Judge in Sukhan has not further stated that this particular ingredient would point out to the fact that both the man and the woman in this regard have to be conclusively identified, distinctly. I feel that the commendable analysis in Sukhan by the learned Judge can be further broadened inasmuch as that, by its very nature "Zina" is a joint offence requiring positive identification of a man and a woman, distinctly, consenting an unlawful sexual intercourse. The position of Zina in this regard is comparable with the common law offence of affray in England. In England the fact that the common law offence of affray is in the nature of a joint offence requiring identification of at least two persons, can be borne out from the following passages from the decision of the Court of Criminal Appeal in R vs. Sharp (1957) 1 All E.R. 577:- ". . . that it was a real disturbance of the peace by two persons fighting each other in public instead of setting their differences in the royal courts or endeavouring by a display of force though necessarily using actual violence to overawa the public... (at p. 579 F) ( under lined for sake of exphasis) "Now as the recorder said, and we see no reason why he should not, one object in charging the appellants with an affray which is of necessity a joint offence ..." (at p. 580 C) ( under lined for sake of emphasis) I would accordingly extend this principle as decided in Sharp by way of analogy to the offence of Zina to hold that the said offence of Zina is by itself in the nature of a joint offence " , requiring identification of both a man and a woman, distinctly. In case any one of them fails to be so identified, as has been in the present case, no offence of "Zina' can be made out by the prosecution. Such is also the reason for acquitting the appellant. She is currently on bail. Having been acquitted, her bail bond is discharged. (KAB) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1092 Present: rashid Aziz khan, J. IBRAR HUSSAIN etc.--Applicants versus STATE-Respondent Cr. Bail Application No. 1024-B of 1996 accepted on 3.4.1996. Bail-- —S. 497 Cr.P.C.--Bail--Grant of--Prayer for--Offence U/Ss. 302/34 PPC- Petitioners were involved on account of supplementary statement made by first informant, which can be considered only at time of trial-No recovery, which could possibly connect petitioners with aEeged occurrence, has been effected-Prima facie, it appears that it is a case of further inquiry-Therefore parties are allowed bail. [P. 1093] A Mr. Khalid Ikram Khatana, Advocate, and Mr. Agka Tqj Muhammad, Advocate, for Petitioners. Syed All Raza, Advocate, for State. Mr. Surat Hussain Naqvi, Advocate, for Complainant Date of hearing: 3.4.1996. order Petitioners Ibrar Hussain, Javed Iqbal and Zameer Ullah seek bail in a case registered with Police Station Saddar, Gujrat vide FIR dated 19.9.1995 for an offence under section 302/34 PPC. The case was got registered by Ahmad Khan with the allegation that on 19.9.1995 at about 8.30 PAL he was present in bis house with his son Muhammad Riaz. In the meanwhile, one Ghulam Hussain came to his house and took first informant's son with him. His son also took along his 7 MM rifle. At about 1.30 at night on 20.9.1995 first informant woke up on cccount of knocking at the door and when opened the same he found Ibrar Hussain, Javed Iqbal and Zameer petitioners present. They came in and asked if Riaz had come back. They were told that he had not come back therefore they informed that they with Riaz were coming back and on account of firing they ran away. Riaz was not with them therefore they had come to find out if he had reached home. On account of this information the first informant sent his other son Muhammad Nawaz to find about Muhammad Riaz. Muhammad Nawaz came after an hour and informed that Riaz was lying in a field with a bullet injury. Therefore the present case. 2. It was contended by learned counsel for the petitioner that the case against the petitioners was highly doubtful and the case was got registered with a delay of 11 hours. Argued that there was no eye-witness account of the occurrence and the case has been got registered on account of suspicion. The contentions were opposed by learned counsel for the State. 3. I have heard the learned counsel and gone through the file. The petitioners are named in the FIR but they came to the house of the first informant to enquire about his son Muhammad Riaz whose deadbody was found subsequently lying in the fields. The conduct of the petitioners suggests that they could«not have been involved in the occurrence, otherwise they would not have come to the house of the deceased immediately after the murder to build a defence. Petitioners were involved on account of supplementary statement made by the first informant, which can be considered only at the time of trial. No recovery, which could possibly connect the petitioners with the alleged occurrence, has been effected. Prima facie, it appears that it is a case of further inquiry. Therefore, the petitioners are allowed bail provided each of them furnishes security in the sum of Rs. 50,000/- Rupees fifty thousand only) with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Gujrat. It is, however, directed that the trial of the case shall be concluded expeditiously subject to just exceptions. (KAB) accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1093 [ Multan Bench] Present: syed zahid hussain bokhari, J. Mst. SAKINA-Appellant versus STATE-Respondent Criminal Appeal No. 278 of 1995 accepted on 5.3.1996. (i) Pakistan Penal Code, 1860 (Act XLV of I860)-- —S. 302 (b)/201~Conviction--Challenge to~Appraisal of evidence—Blind murder-Police initiated investigation U/S. 174 Cr.P.C. as suicide case- On receipt of post-mortem report registered case of un-natural death- Appellant and acquitted co-accused alleged making extra-judicial confession before prosecution witnesses-Except extra-judicial confession no material on record which would sufficient to hold appellant guilty-­ Prosecution witnesses making contradictory statements—No occasion for appellant to make extra-judicial confession before un-related witness while being in police custody, whereas Investigating Officer deposing that extra-judicial confession was made in village-Confessional statement of appellant was not made voluntarily and is not supported by other piece of evidence-Motive not proved-Extra-judicial confession not in conformity with medical evidence-Recovery of dead body not effected on pointation of appellant-Trial Court has not analysed the extra-judicial confession in accordance with the principles laid down by superior Courts—Prosecution has failed to prove its case beyond reasonable doubt-Appeal accepted and sentence set-aside. [Pp. 1097,1098,1099] A, B, C, D. E, F. G. K (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 164-Extra-Judicial confession-Value of--Extra-Judicial confessian is a weak specie of evidence and before it is made base of conviction it has to be subjected to close scrutiny. [P. 1099] H (iii) Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 164-Retracted extra-judicial confession-Courts while convicting accused person solely on basis of re-tracted extra-judicial confession must satisfy itself that confession is voluntary and true-Court should also look for some other independent piece of direct or circumstantial evidence which corroborates confession. [P. 1099] I (iv) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 164-Confessional statements-Use of~Confessional statement is used only as a corroborative piece of evidence for proving prosecution theory. [P. 1099] J Malik Muhammad Saleem, Advocate, for the Appellant, Sh. Muhammad Rahim, Advocate, for the State. Date of hearing: 5.3.1996. judgment Mst. Sakina aged 35, appellant field this Criminal Appeal No. 278 of 1995 against the order and judgment dated 1.10.1995 passed by the learned Sessions Judge, Dera Ghazi Khan, whereby the appellant was convicted under sections 302-B/201 PPC for the commission of murder of Bahadur Khan and for causing dis-appearance of the dead body with the intention of screening herself from the legal punishment and was sentenced to undergo imprisonment for life under section 302-B PPC and to 5 years RI under section 201 PPC and to a fine of Rs. 10,000/-. In case of default in payment of fine to further undergo simple imprisonment for 6 months. The fine if recovered, was to be deposited in the State treasury. Both the sentences were ordered to run concurrently and the appellant was also given the benefit of section 382-B Cr.P.C. 2. Haji Noor Muhammad brother of Bahadur Khan deceased PW 9 informed the police about the occurrence and narrated the facts in Ex. PH, report No. 5, of the Daily Diary 2.2.1993 of P.S. Derkhast Jamal Khan which was subsequently made the basis for a regular FIR Exh. Pk dated 7.2.1993. In report No. 5 dated 2.2.1993 the complainant stated that on 1.2.1993 when he returned to his village he came to know that his brother Bahadur Khan deceased who was under the evil influence of giants for the last six years, was missing from his house, since morning. On search, his clothes and shoes P 3 to P 6 were found placed on a palali in front of the mosque of village Chak Ramzay Wala Distt: D.G. Khan, which were taken into possession vide memo Exh. PF. There existed an old well and a cluster of dates trees near the mosque. He apprehended that Bahadur Khan might have fallen in the well. As it had become dark so, the search was postponed. On the next day people were called and Muhammad Siddique, Well-sinker (Toba) PW. recovered the dead body with the help of others from the well. There were no marks of violence on the dead body and the complainant did not suspect any one for the commission of offence. 3. On this report, Waris Ali SI, PW 13 started enquiry under section 174 Cr.P.C. by treating it as a case of suicide. The clothes and the shoes of the deceased P 3 to 16 were taken into possession vide memo Exh. PF on 2.2.1993. He also prepared the inquest report Exh. PC on the same day. The dead body of Bahadur Khan was sent to the mortuary. 4. Dr. Ghulam Haider Saqib PW 1, Medical Officer, Distt. Head quarters Hospital, Dera Ghazi Khan conducted the post mortem examination on 3.2.1993 and found that:- The pleauras were congested. Larynx and .trachea were conjested and there was no mud or sand in the trachea. Hyoid bone was fractured. Haemotoma was present around the upper trachea! rings. The under lined muscles were congested. No water was seen in the trachea and larynx. The vomitous material was present in trachea and larynx. The right lung was conjested. The lungs were not ballooned. No water was seen in the lungs. Heart was healthy and empty. Blood vessels were engraved. Peritoneum of the abdomen was congested, mouth pharynx and esophagus were conjested. Stomach was also congested and contained small amount of digested food material. Small intestines were congested contained small amount of faecal matter and foul smelling gases. Large intestine was congested and also contained some amount of faecal matter with foul smelling gases. Liver was also congested. Kidneys were healthy. Bladder contained some amount of urine. Scrotum and penus were contracted otherwise healthy. Pieces of small intestine, liver spleen and right kidney were sealed in different jars and sent to the Chemical Examiner. The doctor did not make any opinion about the cause of death and postponed it till the receipt of the report of the Chemical Examiner. 5. On 7.2.1993, the Investigating Officer PW 13 vide an application Exh. PJ put a query to the Medical Officer as to whether according to the post mortem report, it was a case of un-natural death because the signs mentioned by the doctor indicated the death by violence. PW 1 Dr. Ghulam Haider Saqib reported that the indications during the post mortem examination were enough to prove un-natural death. However, he reserved his final report till the receipt of the report of Chemical Examiner. According to the report of the Chemical Examiner Exh. PB no poison was detected in the visceras. The doctor opined in the post mortem examination report F-h PK that probable time that elapsed between the death and post mortem examination was within 36 to 72 hours. 6. Keeping in view the report of Chemical Examiner Exh. PB the doctor finally opined that the injuries mentioned were ante-mortem in nature and time that elapsed between the injuries and death was within half an hour and the cause of death was asphyxia due to throttling. On 17.2.1993 PW 10, Bijjar Khan informed the Investigating Officer that Mst. Sakina appellant widow of the deceased had made extra judicial confession before him, to the effect that she and Saeed Ahmad acquitted coaccused who is nephew of the deceased and son of the first informant had developed illicit relations and as they wanted to marry each other, Saeed Ahmad acquitted co-accused brought certain tablets and directed her to administer those tablets to the deceased. Accordingly Mst. Sakina appellant allegedly administered those tablets to the deceased in a cup of tea and then they took away the deceased, outside the house on the pretext to help him to urinate and there-after strangulated the deceased who was semi-conscious, She killed the deceased and after placing clothes and shoes of the deceased on a palali had thrown the dead body into the well. 7. On the same day PW 11 Allah Bachaya and PW 12 Qadir Bakhsh informed the Investigating Officer that in their presence Saeed Ahmad acquitted co-accused had also made extra judicial confession. Consequently PW 13 Waris Ali Investigating Officer arrested the appellant and acquitted co-accused Saeed Ahmad on the same day. 7-A. Appellant while in police custody led to the recovery of two khaki (brown) packets from a hole in the wall of the house which were taken into possession vide memo Exh. PG. 8. After completion of the investigation the challan was submitted to the Court. Appellant and her acquitted co-accused Saeed Ahmad were tried by the learned Sessions Judge, Dera Ghazi Khan who vide impugned judgment convicted the appellant and acquitted Saeed Ahmad. Hence this appeal. 9. Learned counsel for the appellant argued that the appellant never made any extra judicial confession before Bijjar Khan PW 10 and that the extra judicial confession being a very weak type of evidence cannot be believed without independent corroboration which according to him was lacking in this case. Recovery of khaki packet at the pointation of the appellant was of no consequence as the same was not sent to the Chemical Examiner and that no poison was detected from the viscera of the deceased; that acquittal of co-accused Saeed Ahmad smashes the whole case of the prosecution and that prosecution had not proved the case against the appellant beyond reasonable doubt. 10. Learned State counsel has half heartedly supported the impugned judgment and frankly admitted that except the extra judicial confession no other evidence was available on record to connect the appellant with the commission of offence. 11. I have heard the learned counsel for parties and have gone . through the record of the case with their assistance. I have given anxious consideration to the arguments addressed before the Court. 12. The prosecution and defence are unanimous that except the evidence of extra judicial confession there is no material on record which would be sufficient to hold the appellant guilty for the offence with which she was charged. I would like to thoroughly examine the circumstances in which the alleged extra judicial confession was made by the appellant. Haji Noor Muhammad complainant PW 9 stated in cross examination that Saeed Ahmad and Mst. Sakina appellant were arrested 8 days after the occurrence and PW 10 Bijjar Khan stated in his examination-in-chief that 15/16 days after the present occurrence, he had gone to the house of Mst. Sakina accused to condole the death of the deceased and found her worried and he asked her to relax. According to this witness, she told him that as he was elder in the family, he should help her because she had killed her husband. She further told that she had illicit relations with Saeed Ahmad acquitted coaccused. PW 13 Waris Ali, S.I. stated in the examination that he arrested the appellant on 17.2.1993 and in the cross examination he stated that before 17.2.1993 both the accused had been joined in the investigation and no other person was joined for the investigation. It was generally rumoured before 17.2.93 that these two accused persons had illicit relations with each other. Bijjar Khan had told him about the extra judicial confession of Mst. Sakina at the place of occurrence at about 2 p.m. Allah Bachaya PW 11 and Qadir Bakhsh PW 12 had told him at 3/4 p.m. that Saeed Ahmad acquitted coaccused made extra judicial confession before them. These PWs had made contradictory statements. If the appellant was arrested by the police 8 days prior to the making of extra judicial confession then how could she make extra judicial confession before Bijjar Khan as alleged by him. The Investigation Officer has stated that on the day when extra judicial confession was made by the appellant he was present in the village where he was informed about the making of extra judicial confession by the appellant. This circumstance alone is sufficient to hold that situation in the village was not normal and it cannot be ruled out that the appellant was under duress. The extra judicial confession cannot be held to have been voluntarily made as according to the Investigating Officer both the appellant and acquitted coaccused had joined the investigation prior to 17.21993. Bijjar Khan PW 10 stated that extra judicial confession was made before him because he was the elder member of the family and appellant requested him to help her. It is no where stated by this witness that he did not promise to help the appellant Bijju Khan PW stated that he had not met Mst. Sakina in her house and he had been searching the accused. He has also stated that at the time when I Sakina had confessed her guilt the police was already present in the village j for investigation of the case. All these circumstances lead to the conclusion that the so called extra judicial confession was not voluntarily made. The appellant would not make any confessional statement before a person who was actively associated with the police to find out the real assailants, unless he showed some sympathy and promise to save her form the rigors of the police. 13. According to the prosecution version and the story as alleged in the extra judicial confession the motive for the occurrence was the illicit relations between the appellant and Saeed Ahmad acquitted co-accused. Prosecution has not produced any witness in corroboration of this fact There is nothing on record to show that the appellant had any dispute with her husband prior to the occurrence or he ever for-bade her to keep the relation with acquitted co-accused. 14. The acquittal of co-accused Saeed Ahmad creates doubt about the veracity of extra judicial confession. The learned trial Judge has not believed this part of the extra judicial confession and had acquitted Saeed Ahmad co-accused. It would show that a major portion of the prosecution case has not been proved. Both the appellant and acquitted co-accused had denied any such relations in their statements under section 342 Cr.P C. Both have stated that they never made any extra judicial confession before the rosecution witnesses. The extra judicial confession can only be relied upon when it rings true to the court. As both the appellant and the acquitted coaccused had denied the motive of the occurrence, it was the duty of the prosecution to prove by some independent evidence, the existence of illicit relations between them. The complainant who is brother of the deceased had not stated a word about it, either in his statement under section 161 Cr.P.C. or before the Court. Had there been any such illicit relation between the accused the complainant would have narrated the same in the first information report. Allah Bachaya and Qadir Bakhsh PWs have not supported the prosecution case during the trial. They have refuted that Saeed Ahmad ever made extra judicial confession before them. They were declared hostile and were cross examined at length. Nothing substantial came to light during the cross examination. 15. According to the prosecution, the appellant had administered intoxicant in the shape of tablets before strangulating the deceased but the Chemical xaminer's report shows that the viscera did not contain any poison. The khaki packet allegedly recovered on the pointation of the appellant was not sent to the Chemical Examiner for analysis. So, this packet has no evidentiary value at all. The version given in the so called extra judicial confession and the medical evidence are not in conformity with each other. The appellant in her statement under section 342 Cr.P.C. stated that Bijjar Khan PW was inimical towards her and her parents and that he was a stock witness of the police and a relative of the complainant party. He had falsely deposed against her. 16. After 8 days of the occurrence the appellant was arrested by the police and she did not make any confession before the police or any one else. Investigating Officer has admitted that before the formal arrest the accused ere joined in the investigation. They did not make any confessional statement during this period. There was no occasion for the appellant to make extra judicial confession before Bijj'ar Khan PW. Further, if she was taken in custody by the police, after the occurrence, she would not have been let free by the police and it was not possible for the appellant to be present in her house on 17.2.1993 to make an extra judicial confession before Bijjar Khan. 17. Recovery of the dead body was not effected on the pointation of the appellant. The post mortem had already been conducted, when the extra judicial confession was made and it was easy for the police and the prosecution to put these words in the mouth of the appellant. These circumstances cannot be used as corroboration. 18. I feel that the evidence regarding the extra judicial confession was not analysed in accordance with the principle which has been evolved by the Courts of law for appraisal of such evidence. 19. The extra judicial confession is weak specie of evidence and before it is made the base of conviction it has to be subjected to close scrutiny. Court while convicting the accused person solely on the basis of retracted extra-judicial confession must satisfy itself that the confession is voluntary and true. Court should also look for some other independent piece of direct or circumstantial evidence in the case which corroborates the confession, to ensure safe administration of justice. The confessional statement is used only as a corroborative piece of evidence for proving the prosecution theory. In the present case the confessional statement of the appellant was not made voluntarily and the same was not supported by any other piece of evidence. The up-shot of the above discussion is that it is not difficult to say that appellant was under some sort of surveillance from the very start. The police was present in the village when the alleged extra judicial confession was made. 20. For what has been stated above, I hold that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. Consequently, I direct that the appellant be set at liberty forthwith, if not equired in any other case. The appeal is accepted and the impugned order and judgment is set aside. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1100 [DB] [Multan Bench] Present: rana muhammad arshad and syed zahid husain bokhari, JJ. RIAZ HUSSAIN and 2 others-Appellants versus STATE-Respondent Crl. Appeal No. 136 of 1992 and Murder Ref. No. 2S6 of 1992 partly accepted. (i) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 154-F.I.R. not recorded at police Station-Value of-Fact, that F.I.R. was recorded at place other than police Station, alone would not be sufficient to discard evidence of prosecution, but would put court at caution—It would require scrutiny. [P. 1104] C (ii) Medical Evidence»"ABRASION"-- —Normally shape of injury is similar to shape of weapon—Abrasions can be caused by friction on earth as well as by edge or enthe the the d of blunt weapon. [P. 1103] A (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —- S. 302/34-Sentence-Challenge to-Appellant attributed one "dang" injurj' near left eye-Postmortem report revealing, injury attributed to appellant, a blackened abraison--F.I.R. showing fall of deceased face ward on ground-Doctor conceding abrasion can be caused by friction on earth- Role attributed to appellant not fully corroborated by medical evidence— Giving benefit of doubt appellant was acquitted of charge. [P. 1106] E (iv) Pakistan Penal Code, 1860 (Act XLV of I860)- —S. 302/34-Conviction/Sentence-Challenge to-Broad day light occurrence-Eye-witness found present at spot at relevant time-No possibility occurrence having gone un-witnessed or assailant escaping un­ identified-Eye witness, though related but not inimical to appellant-­ Mere relationship per-se not sufficient to discard testimony of Eye­witnesses-Ocular evidence corroborated by medical evidence—Recovery of blood stained hatchet proved-Report of chemical examiner and that of Serologist positive-Occurrence taking place in heat of passion without pre-meditation-Appellant not committed an intentional murder-­ Sentence u/s 302 PPC awarded by trial court set-aside and instead Appellant convicted under Section 304-Part I. [Pp. 1103,1105, 1107] B, D, F, G, H Sardar Muhammad Latif Khan Khosa and Malik Muntazir Mehdi, Advocates for the Appellants. Sh. Muhammad Raheem, Advocate for State. Nemo for Complainant Date of hearing: 31.1.1996 judgment Syed Zahid Husain Bokhari, J.--Murder Reference No. 286/92 and Crl. Appeal No. 136 of 1992 arose out of the judgment and order dated 13-5-1992 passed by learned Addl. Sessions Judge, Multan by which Muhammad Riaz, Muhammad Nawaz and Muhammad Yar appellants were convicted under Section 302/34 PPC and were sentenced to death, life respectively. All the three were ordered to pay Rs. 20,000/- each as fine and in default thereof to undergo further RI for 2 years each. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased. Fida Hussain co-accused was acquitted while extending benefit of doubt. Benefit of section 382-B CrJP.C. was also extended to Muhammad Nawaz and Muhammad Yar appellants. We propose to decide both the matters through this single judgment. 2. On 22-2-1989 at 4 p.m. Muhammad Ramzan PW 4 made statement Exh. PF before Mahboob Ahmad Inspector/SHO, PW 10 when he was present near railway crossing Lar road City Shuja Abad for an occurrence which took place on 22-2-1989 at 1 p.m. in the lands of Rana Bashir Ahmad situated in the area of mauza Dakhli Sikandar Abad, at a distance of 8 miles from police station, City Shujabad. The statement was embodied in the formal FIR Exh. PF/1, recorded by PW6 Bashir. Ahmad Muharrar ASI at 4.20 P.M. 3. 9/10 years prior to the occurrence Mst. Kaniz Mai PW3, sister of Bashir Ahmad deceased and Muhammad Ramzan complainant was married with Muhammad Nawaz appellant resident of Chah Hasan Wala. Muhammad Nawaz appellant did not allow Mst. Kaniz Mai to visit the house of Muhammad Bashir deceased who used to reside at Chah Kazi Wala. On the" fateful day in the absence of Muhammad Nawaz appellant Muhammad Bashir deceased went to the house of Muhammad Nawaz appellant and took away Mst. Kaniz Mai and when they reached near the garden of Abdul Aziz Jhakkar, at about 1 p.m., they came across Muhammad Nawaz appellant armed with a hatchet, Riaz Hussain appellant armed with a hatchet, Muhammad Yar appellant armed with a dang and Fida Hussain acquitted co-accused armed with acMuri. On seeing the accused, Muhammad Bashir and Mst. Kaniz Mai diverted towards the lands of Rana Bashir Ahmad. Allegedly they were intercepted by accused Muhammad Nawaz appellant asked Muhammad Bashir deceased as to why has he taken away his wife ? He asked his wife to go home. Muhammad Bashir deceased did not allow her to return to the house of the appellant On this Muhammad Nawaz got provoked and raised a lalka.ro. that he be caught and murdered. Muhammad Bashir deceased and Mst. Kaniz Mai PW raised noise and in the meantime complainant and Fazal Karim PW5 reached at the spot. Within their view, Muhammad Nawaz appellant inflicted a blow on the abdomen of the deceased from the wrong side of the hatchet and Muhammad Bashir snatched churri from Fida Hussain acquitted co-accused and gave churri blow on the abdomen of Muhammad Nawaz appellant, in exercise of the right of self defence. Muhammad Yar appellant inflicted a dang blow near the left eye of Muhammad Bashir who fell on the ground and thereafter Riaz Hussain appellant inflicted hatchet blow on the back side of the head of Muhammad Bashir. The eye witnesses tried to intervene but they were threatened by the accused, not to come near. The appellants ran way alongwith the weapons of offences. Muhammad Bashir succumbed to the injuries at the spot, 4. The motive for the occurrence as stated was that Muhammad Nawaz appellant did not allow his wife Mst. Kaniz Mai to visit the house of her parents. Muhammad Nawaz appellant was asked many a times to allow Mst. Kaniz Mai to visit her parents house. Muhammad Bashir deceased brought his sister Kaniz Mai from the house of the accused on the day of occurrence. Being aggrieved, the accused nominated in the FIR committed the murder of Muhammad Bashir deceased. 5. Post mortem was conducted on 23-2-1989 by Dr. Abdul Aziz Shah PW2 and he found the following injuries on the person of deceased :-- 1. Incised cut wound 8 cm x 2.5 cm depth upto spinal cord, cut between first and second cervical vertibras on back of neck just above hair line more on right side of back of neck, which was only 2 cm away from right ear. 2. A blackened abrasion 2 cm x 5 cm on the outer and lateral border of the left eye. 3. A blackened abrasion 3.5 cm x half cm on back and middle of left forearm. 4. An incised abrasion 'J' shape 4 cm x 1/4 cm x 1 cm x ¼ cm on front and left side of abdomen 2 cm below costal margin. 5. An Abrasion blackened in colour 3 cm into half cm on back of left side of chest, just in the middle. On dissesection of injury No. 1 skin, muscles of back of neck and ligaments were cut. Right vessel and artery of back were cut. There was dislocation with slight cut between first cervical vertibrae and second cervicale vertibrae. Spinal Card at this area was completely cut. The injuries No. 2 to 5 were simple one. In the opinion of doctor the cause of death was injury No. 1, i.e. neck injury cutting the spinal card. The injury was sufficient in the ordinary course of nature to cause death resulting in cardio-respiratory arrest. The injuries were anti mortem. Injury No. 1 was caused by sharp edged weapon. The other injuries were by semi sharp and blunt weapon. Probable time that elapsed between injury and death was within one hour and between death and post mortem was within 18 to 20 hours. Exh. PB is the correct carbon copy of the post mortem report which was written and signed by him. Exh. PB/1 is skia gram. Police also signed application for the post mortem of deceased Exh. PC which is signed by him. He had also signed the inquest report Exh. PD. On 3-7-1989 vide application Exh. PE the police enquired about the injury No. 4 on which his report was Exh. PE/1. The doctor opined that injury No. 4 could not be caused by reverse of the hatchet In the cross examination this PW admitted that normally the shape of injury is similar to the shape of the weapon. Abrasion could be caused by some edge of hatchet. Abrasion can be caused by friction on earth as well as by edge or end of the blunt weapon. 6. On 22-2-1989 blood stained earth was collected, sealed into a parcel and taken into possession! vide memo Exh. PG by Mahboob Ahmad Inspector/SHO, PW 10 and witnessed by Muhammad Abdullah PW8. 7. Inspector SHO PW10 arrested Riaz Hussain appellant and Fida Hussain acquitted accused on 4-3-1989. Muhammad Nawaz and Muhammad Yar appellants were arrested by him on 9-3-1989. During the investigation Riaz Hussain appellant led to the recovery of blood stained hatchet P4 on 11-3-1989 from the room of his house. On the same day Muhammad Nawaz appellant got recovered blood stained hatchet P5 and on 13-2-1989 Muhammad Yar appellant got recovered blood stained dang P6 which were taken into possessionl vide memos Exh. PJ, PK and PL respectively. The recoveries were witnessed by Muhammad Bakhsh PW9 and Abdul Karim given up PW. Nothing was recovered at the instance of Fida Hussain acquitted co-accused. The prosecution also relied upon the reports of Chemical Examiner Exh. PN and that of the Serologist Exh. PO about the blood stained earth and the Chemical Examiner report Exh. PP and that of the Serologist Exh. PQ in respect of weapons of offence. All these reports were positive and proved that the articles were stained with human blood. 8. Muhammad Nawaz appellant when asked, "Why this" case against you? He replied that he had given an amount of Rs. 20,000/- to Bashir deceased who was his brother-in-law, as such he went to his house and demanded the money from him but he infuriated, went into the room and brought out a churri and caused the injury in his abdomen. He fell down, pulled the churri from the abdomen and thereafter he picked up the hatchet, which was lying at a distance of two karams and inflicted the atchet blow on the neck of Muhammad Bashir deceased, in order to save his own life. Further stated that the occurrence took place in the house of the deceased. Other appellants and acquitted co-accused denied their participation in the occurrence. The appellants, produced Dr. Muhammad Ashfaq Baig DW1 in the defence. He examined Muhammad Nawaz on 22-2-1989 at 2 p.m. and found the following injury on his person. A stab wound measuring 3 cm x 1 cm x depth kept under observation, located over the left side of anterior abdomenal wall--8 cm to the left side of the amblicus. He issued medico-legal report Exh. DC. The injury was caused by sharp edged tappered, pointed weapon. Duration of injury was 2 hours. The doctor decided to probe the wound in the operation theater but Muhammad Nawaz appellant ran away from the hospital. 7. The occurrence was allegedly seen by Mst. Kaniz Mai PWS, Muhammad Ramzan PW4 and Fazal Karim PW5. During the trial, all these three prosecution witnesses supported the story as narrated in the first information report in all material details. 8. It was argued on behalf of the appellants that the prosecution has not been able to prove its case beyond reasonable doubt, that the FIR was recorded after deliberation and preliminary investigation; that the appellant have no motive whatsoever to launch attack upon the deceased but in fact the deceased had a motive to commit aggression; that Muhammad Ramzan and Fazal Karim PWs were not present at the spot and they have not seen the occurrence; that the eye witnesses being related to the deceased, made dishonest improvements, hence were not reliable witnesses and that offence if any, committed by the appellants will fall under section 304-Part I PPC and not under section 302 PPC. 9. Learned State counsel argued that the matter was promptly reported to the police and it cannot be said that FIR was lodged after deliberation and consultations, that the prosecution has proved it's case by reliable evidence, that the appellants had very serious motive to attack the deceased and that the appellants committed intentional murder of Muhammad Bashir deceased. 10. We have heard the learned counsel for the parties and have examined the record carefully. 11. Admittedly the FIR was recorded near railway crossing and not at the police station. This fact alone would not be sufficient to discard the evidence of the prosecution but this would puts the Court at caution. It would requires more strict scrutiny of the evidence. 12. Muhammad Nawaz, Riaz Hussain appellants are brothers and Muhammad Yar is the cousin and Fida Hussain acquitted co-accused is their nephew. Fida Hussain co-accused was acquitted by the trial court for sound reasons and the complainant or the State has not filed any appeal/revision against his acquittal. Relationship between Mst. Kaniz Mai and Muhammad Nawaz appellant was admitted. She resided in the house of the appellant Muhammad Nawaz as his wife under one roof till the day of occurrence. There is nothing on record which would show that the husband and the wife had any dispute whatsoever. She did not leave the house of her husband on her own accord. The complainant and the appellants are the residents of same Chah. The complainant has not stated that Kaniz Mai ever complained about the ill-treatment of Muhammad Nawaz with her. Prior to the occurrence no unto-ward incident was reported any where. The complainant has not stated in his statement that Muhammad Nawaz appellant did not allow Mst. Kaniz Mai to visit his house or Muhammad Nawaz ever prohibited the complainant from visiting bis house. It is not clear from the evidence that why Muhammad Nawaz appellant did not allow Kaniz Mai to visit the house of Muhammad Bashir deceased. It was the duly of the prosecution to explain the circumstances which forced the appellant Muhammad Nawaz to ban the visit of his wife to the house of his brother in law Muhammad Bashir deceased. PW 4 Muhammad Ramzan complainant admitted during the cross examination that no enmity existed between Bashir and Nawaz prior to the occurrence. All these factors when considered collectively lead us to the irresistable conclusion that relations between the parties cannot be termed as inimical. 13. Blood stained earth was collected from the place of occurrence as stated by Muhammad Abdullah PW8. He was cross examined at length but no question was put to him which would show that blood stained earth was not taken from the place of occurrence, so the place of occurrence was not seriously challenged by the appellants. We hold that the occurrence took place in the lands of Rana Bashir Ahmad situated in the area of mauza Dakhli Sikandar Abad. 14. The occurrence took place in the area of muaza Dakhli Sikandar Abad. Chah Hasan Wala, Chah Kazi Wala and Chah Chanar Wala are different abadis of village Dakhli Sikandar Abad. The presence of Muhammad Ramzan complainant and Fazal Karim PW5 cannot be held un­ usual. We hold that all the eye witnesses were present at the spot. They had D seen the occurrence. The presence of Mst. Kaniz Mai at the time of occurrence cannot be disputed because had she not taken away by deceased, the occurrence could not have taken place. The prosecution has proved the motive beyond reasonable doubt. 15. We are not prepared to believe the statement of Muhammad Nawaz appellant that he went to the house of Muhammad Bashir deceased and demanded Rs. 20,000/- which he owed from the deceased and the occurrence took place in the house of Bashir Ahmad deceased. He did not give any reason whatsoever for the payment of Rs. 20,000/- to Bashir deceased. 16. We shall now examine whether the eye witnesses are fully reliable, partly reliable or not reliable. It is the duty of the court to separate the chaff from the grain. Muhammad Yar appellant has been attributed one dang injury which he allegedly inflicted near left eye of Muhammad Bashir deceased. The post mortem examination reveals that injury attributed to Muhammad Yar was a blackened abrasion 2 cm x 5 cm on the outer and lateral border of the left eye. Similar injury with blackened abrasion 3.5 cm x 1/2 cm on back of middle of left fore-arm was also observed by the doctor. Moreover, an abrasion blackened colour was also found on the back of left side of the chest. There injuries were not attributed to any one. All these injuries were declared simple in nature. It is mentioned in FIR that deceased fell facing towards the ground. It cannot be ruled out that injury attributed to Muhammad Yar may be the result of friction by fall on the ground. In cross examination the doctor admitted that abrasion can be caused by friction on earth as well as by dang edge or end of blunt weapon, but it was not stated that Muhammad Yar appellant used edge or end of the dang. The role attributed to Muhammad Yar is not fully corroborated by the medical evidence which creates doubt about his participation in the occurrence. Consequently Muhammad Yar appellant is acquitted by giving him the benefit of doubt. He shall be released forthwith if not required in any other case. We also do not rely upon the eye witnesses qua Fida Hussain acquitted co-accused. 17. On its own showing, the prosecution claimed that appellants came across the deceased and the prosecution witnesses all of a sudden. Appellants had no knowledge that the deceased would be taking his sister Mst. Kaniz Mai on the fateful day and at the relevant time. Muhammad Bashir deceased had not given prior intimation about his design to take his sister Mst. Kaniz Mai from the house of Muhammad Nawaz appellant. He went to the house of Muhammad Nawaz appellant in his absence and Kaniz Mai left her house without permission of her husband. She did not wait for her husband to seek permission to accompany her brother. The appellant did not attack the deceased soon after his arrival at the place of occurrence. But he first enquired from Bashir deceased as to why had he brought his wife? He also asked his wife to go home, but Muhammad Bashir deceased not allow his sister/wife of the appellant Muhammad Nawaz to go home. The eye witnesses in their statements before the learned trial Judge attempted to give a twist to the facts by saying that they reached at the spot on hearing the hue and cry and saw that appellants were giving injuries. They were duly confronted with their statements recorded under section 154 and 161 Cr.P.C. The narration given in the FIR by the complainant, about the initiation of occurrence rings true. The injuries were caused after the exchange of hot words. 18. Muhammad Nawaz appellant received sharp edged injury in ^his abdomen and prosecution has explained this injury by saying that Muhammad Bashir deceased snatched the churri from Fida Hussain acquitted co-accused and in order to save himself caused injury to Muhammad Nawaz appellant in the abdomen. The trial Judge has found the participation of Fida Hussain in the occurrence as doubtful. It is in the evidence that Muhammad Bashir was once involved in a murder case prior to the occurrence and his conduct of taking Kaniz Mai to his house without permission of Muhammad Nawaz appellant shows that he was a strong headed person and possibility cannot be ruled out that he might have brought the churri with him in order to avoid expected resistance. 19. The eye witnesses, though related but not inimical, were found to be present at the place of occurrence at the relevant time and occurrence had taken place in the broad day light in an open place eliminating the possibility of occurrence having gone un-witnessed or the assailants having escaped un-identified. Relationship per-se is not sufficient to discard their testimony. The prosecution witnesses are held reliable against Muhammad Nawaz and Riaz Hussain appellants. 20. The hatchets are normally carried by the villager in the rural areas of Punjab and carrying hatchet by the appellants in the fields in the peculiar circumstances of this case cannot be termed as pre-meditation. The deceased died in sudden fight as a result of fatal injury caused to him by Raiz Hussain appellant. Both the appellants have not repeated the injury to the deceased. Muhammad Nawaz caused a simple injury to the deceased. The occurrence took place in the heat of passion and without pre-meditation. 21. The testimony of the eye witnesses against Riaz Hussain and Muhammad Nawaz appellants is corroborated by medical evidence, recovery of blood stained earth from the spot and the recoveries of blood stained hatchets P4 and P5 and reports of Chemical Examiner and that of the Serologist They have not committed the offence of intentional murder punishable under section 302 PPC but the offence would fall under section 304-1 PPC. Conviction and sentences of the appellants under section 302 PPC are consequently set aside and instead they are convicted under section 304-1 PPC. Injury inflicted by Muhammad Nawaz is simple in nature. He is sentenced to undergo RI for 10 years. Riaz Hussain appellant whose injury proved fatal is sentenced to undergo life imprisonment. Benefit of section 382-B Cr.P.C. is given to the appellants. The amount of fine is maintained and, if recovered, half of it shall be paid to the heirs of the deceased. The appeal is partly accepted. The death sentence is not confirmed. (MAA) Death Not confirmed/Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1108 (DB) Present : sajjad ahmad SiPRA and raja muhammad khubshid, JJ. MUHAMMAD MANSHA-AppeUant Versus STATE-Respondent Criminal Appeal No. 734/91 and Murder Reference No. 559/91 decided on 6.2.1996 (i) Administration of Criminal Justice- —Unfortunate tendency in our society is to implicate and include names of innocent persons alongwith real offenders-For this reason the principle of "sifting the grain out of chaff has been recognised for safe administration of criminal justice-Courts have refrained to strictly apply principle of "Falsus in Uno Falsus in Omni bus" so that innocent persons may not suffer. [P. 1112] A (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 154-F.I.R. is not an exhaustive document so as to contain each and every minor detail of occurrence-It is not expected that photogenic version, with a computer like exactness will be given in F.I.R. [P. 1113] F (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302/307/34~Appreciation of evidence—One of Eye-witnesses though real brother of deceased but resident of same place—Other eye-witness got stamp of injury on vital part of body during transaction-Evidence of eye-witnesses not only trustworthy but intrinsically truthful-No background of any previous enmity between parties-F.I.R. was lodged promptly-Motive shrouded in mystery-Medical evidence corroborative to ocular testimony-Recovery of weapon of offence not doubtful- Conviction maintained. [P. 1112 to 1114 & 1116] B, C, D, E, G, H, L (iv) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302-Sentence-Quantum of-Mitigating circumstances-No direct evidence of motive except witnesses statements that there was some dispute oVer buffalo-Immediate cause of murder and actual motive remained shrouded in mystry-Death sentence awarded to accused was altered to imprisonment for life with benefit of Section 382-B, Cr.P.C. [P. 1115] J (v) Pakistan Penal Code, 1860 (Act XLV of I860)- —-S. 302/307/34--Accused/Convict (Muhammad Latif) did not share common intention with his co-accused/convict (Muhammad Mansha)- Evidence strongly imply that both accused initiated separate action at time of occurrence having no community of purpose-Accused were liable for their individual acts—Conviction and sentence of accused/convict (Muhammad Latif) was set aside u/s 302 PPC, but u/s 307 P.P.C. was maintained. [P. 1116] L (vi) Related witness-- —A witness though related should not be disbelieved until and unless it is shown that he is interested or inimical- [P. 1114] I Sardar Muhammad Latif Khan Khosa, Advocate for Appellant Mr. Peroaiz Inayat Malik, Advocate, for State. Mr. Muhammad Afzal Siddiqui, Advocate for Complainant. Dates of hearing: 4,2.1996 and 6.2.1996. judgment Raja Muhammad Khurshid, J.--This occurrence took place at 8.30 PM on 4.10.1988 in the area of Niwan Mohalla, Chah Miran Lahore at a distance of \ kilometer towards South of Police Station, Shad Bagh, Lahore in which one Muhammad Akram was stabbed to death. 2. The brief facts are that the complainant tethered a buffalo in a vacant plot situate on the back of his house at 8.00 PM on the unfortunate night. The deceased went to that site shortly thereafter and found Muhammad Mansha and Muhammad Latif accused at the spot. He complained to them that previously his buffalo was stolen and that they (accused) were suspected of its theft. The accused however, were unable to satisfy the complainant side regarding the aforesaid allegation of theft till that date. The deceased also complained that the accused were present on that date with the object of stealing buffalo. This led to an altercation between the accused named above and the deceased, but the matter was pacified due to intervention made by Muhammad Farooq and Mahboob Hussain PWs. The accused thereafter left for their homes, but re-appeared soon after, while out of them Muhammad Mansha and Muhammad Latif were armed with churri each and Shaukat AH alias Shoka (acquitted accused) was empty handed. Muhammad Mansha accused raised Lalkara that the deceased.be taught a lesson for falsely accusing and suspecting the accused persons for committing theft of their buffalo. Upon the exhortation of Muhammad Mansha, the deceased was held in Japha by Shaukat Ali alias Shoka accused from behind. The accused Muhammad Mansha plunged his churri in the chest of deceased whereupon the latter fell on the ground. Muhammad Mushtaq PW stepped forward in order to save the deceased, but Muhammad Latif accused attacked him with churri causing an injury on the lower part of his chest and 2 injuries on right thigh. PWs Muhammad Farooq and Mahboob Hussain tried to intervene but were threatened by all the accused to keep away if they wanted to remain alive. 3. On hearing the noise, people from the mohalla were attracted to the spot and on seeing them, the accused ran away with their weapons. 4. The investigation linked all the 3 accused namely Muhammad Mansha, Muhammad Latif and Shaukat Ali alias Shoka with the occurrence. They were accordingly challaned under Section 302/307/34 PPC and were sent up to face the trial in the court of session. 5. Upon the conclusion of trial Ch. Muhammad Saeed the learned Additional Sessions Judge, Lahorel vide his judgment dated 5.6.1991 found Muhammad Mansha and Muhammad Latif guilty under Section 302/307/34 PPC, but acquitted Shaukat Ali alias Shoka after giving him the benefit of doubt. 6. I Vide aforementioned judgment Muhammad Mansha and Muhammad Latif accused were convicted and sentenced to death and imprisonment for life respectively with a fine of Rs. 10,000/- or in default to undergo one year R.I. Both of them were further convicted under Section 307/34 PPC and sentenced to 7 years R.I and a fine of Rs. 4.000/- each. 7. The fine if recovered was to be paid as compensation to the heirs of the deceased under section 544-A Cr.P.C. 8. The impugned judgment was challenged in appeal No. 734/91 filed by Muhammad Mansha and another criminal appeal No. 702/91 filed by Muhammad Latif convict. Murder Reference No. 559/91 was made by the learned Additional Sessions Judge, Lahore for confirmation of death sentence awarded to Muhammad Mansha as required by Section 374 Cr.P.C. It was prayed in criminal revision No. 600/91 that fine should be enhanced on two counts; that sentence under section 307 PPC be also enhanced and that appellant Muhammad Latif be sentenced to death. Criminal Appeal No. 1303/91 filed by the State against acquittal of Shaukat Ali alias Soka accused was dismissed by this courtl vide order dated 14.6.1994. All the 4 matters will be decided by this judgment. 9. The learned counsel for the appellants challenged the judgment on the ground that the prosecution had failed to prove its case. In this context, it Was urged that interested and discrepant evidence was examined at the trial, which was wrongly believed by the learned trial Judge. The recoveries of weapons of offence were also alleged to be doubtful because those were proved through interested witnesses. Since there was no intrinsic corroboration of the interested witnesses by the circumstancial or the medical evidence, therefore, the same allegedly remained highly doubtful hroughout. In this regard, it was alleged that according to the FIR, only one injury was given to the deceased whereas according to post mortem report ejj: P/N there were two injuries on the person of the deceased. Those injuries have been shown in diagram Ex: PN/1 separately and were the result of two blows instead of one as alleged by the complainant. This allegedly showed that the complainant was not present at the spot and was falsely set up to become a witness being brother of the deceased. The other eye witness namely Mahboob Hussain and Muhammad Mushtaq were also stated to be interested because they were related to the deceased and were also allegedly present at the spot per chance. The only independent witness namely Muhammad Farooq was given up on the plea that he had been won over so that the truth may not come to light. 10. The learned counsel for the appellants also submitted that the accused never committed the offence nor there was any common intention between the two to commit the murder of the deceased because Muhammad Latif accused/appellant caused no injury to the deceased and that according to the prosecution he had assaulted the Muhammad Mushtaq PW only. 11. Lastly it was contended that in fact the motive was not proved as alleged in the FIR and that the deceased was done to death during the night by some unknown persons and the appellants were implicated out of suspicion. The Police Station was stated to be at a distance of 1 \ Kilometer but the report was not lodged there as the statement of the complainant was recorded in the Hospital at about 10.30 PM, when the police had reached there. The formal FIR was recorded on the basis of the aforesaid statement at 11.00 PM. This delay gave sufficient time to the prosecution to make deliberations and consultation to implicate the accused falsely in this case. 12. Finally the learned counsel for Muhammad Mansha appellant urged that even if the story of the prosecution was believed ipso dicso, the case would fall within Section 304 PPC as it was a sudden flare up without any pre-meditation. The sentence of death or imprisonment for life was therefore, not warranted under the situation. 13. The learned counsel for appellant Muhammad Latif was also of the view that it was a false case based on suspicion for the reasons alluded to above and the case would not fall within the ambit of Section 302/307/34 PPC as community of purpose between the two accused was not established nor the common intention could be inferred under the given situation. Even if the prosecution was believed with reservation, the case of the prosecution would fall under Section 324 PPC as the injured PW did not suffer any grievous injury. 14. The learned counsel for the State however, supported the judgment of the.learned trial court on the ground that mere relationship of the witnesses with the deceased would not disqualify their testimony nor would it be considered that they were telling lie, when admittedly there was no enmity between the parties. The natural urge on their part would be to bring the real culprits to book and as such there was no (line missing) proved the ocular occurrence rendered without any flaw, by the witnesses supported by the circumstantial and medical evidence, would show that the prosecution had proved its case against the accused beyond any reasonable doubt. The learned trial court had already applied the principle of sifting the grain out of chaff and had acquitted one of the accused against whom the case was found doubtful. To this proposition the learned counsel for the appellants stated that the evidence, which was disbelieved qua one accused would not be believed in respect of other accused. 15. We have considered the above submissions from both sides. It is to be seen if the prosecution has been successful to prove its case against the accused persons. It appears that the learned trial court proceeded with great care and caution to see that the evidence produced by the prosecution is appreciated critically so that no innocent person could be sent to gallows and that the guilty persons should get their due in accordance with law. It is for that purpose the co-accused of the appellants namely Shaukat All alias Shoka was given the benefit of doubt and acquitted. The question would now arise if the same evidence could be believed against the convict appellants. The proposition has become very simple because keeping in view the unfortunate tendency in our society to implicate and include the names of some innocent persons alongwith real offenders has become almost a common practice. It is for that reason that the principle of "sifting the grain out of chaff' has been recognized for the safe administration of criminal justice. The courts have refrained to strictly apply the principle of "Falsus in Uno Falsus in omni bus" so that some innocent persons may n ,n suffer due o un-healthy practice of involving as many number of persons from the accused side as could be possible in order to bring maximum harm to that side. 16. Keeping in view the above discussion, we will have to see whether in the instant case the evidence produced by the prosecution was truth worthy and confidence inspiring. It is true that the complainant Le. W-1 is the real brother of the deceased, but on that account alone his evidence cannot be discarded. He is also living in the same place and being a blood relation of the deceased, it will be his genuine instinct to see that the real killers of his brother should be got convicted. It is admitted fact that there was no previous enmity though there was a lurking doubt against the accused that they were instrument in the theft of a buffalo in the past and since they were seen again near the buffalo of the complainant, therefore, it was but natural for the deceased to say as to what they were doing, at the spot at that time of the night particularly when they had failed to satisfy the complainant side regarding the previous theft of buffalo. This had led to an altercation, x but due to intervention of the PWs, the accused went to their home and reappeared with the grudge while armed with churry to teach a lesson to the deceased for accusing them for theft After raising lalkara Muhammad Mansha accused opened attack upon the deceased and stabbed him to death, while causing injury on his chest. Muhammad Mushtaq PW was injured by Muhammad Latif when the former tried to intervene. In such a situation, the motive raised by the prosecution cannot be thrown away particularly when in evidence it is said that there was some trouble over some buffalo, although the witnesses were not specific as to what had happened or as to what words were exchanged during the altercation between the deceased and the assailants. However, that would not make the testimony of the eye witnesses doubtful particularly when there was a patent proof of Muhammad Mushtaq PW to be present at the spot having sustained injuries on the vital part of his body during transaction at the hands of Muhammad Latif appellant/convict. This would establish his presence at the spot. The witness was not inimical towards the accused and in that sense he would be an independent person though a caste fellow. He may have some relationship as during cross-examination, he stated that the deceased was not related to him, but might be related to his father. However, there is nothing on record to show as to what was the exact relationship except that he was staying there as a paying guest being a student of M.Sc. This reveals one important factor that he is a young man with sound educational background and therefore, the quality of his evidence should be given due weight, while appreciating his statement particularly as stated above, he had been one of the victims daring the unfortunate incident resulting into the murder of the deceased. The 3rd eye witness namely Mahboob Hussain is brother-in-law of the deceased. Though he lived in a different locality and had claimed to be present as his wife had come to the house of his in-laws. This visit of his wife to her parent's house is not unusual and as such presence of the witness would not become doubtful as alleged by the learned counsel for the appellants/convicts by terming him as a chance witness. 17. In view of the above situation, the evidence of the eye witnesses is not only trust worthy, but is intrinsically truthful because there is no D background of any enmity between the parties. It is, therefore, not likely that the eye witnesses will go to such an extent that they would leave out the real culprits and would substitute the present appellants/convicts. 18. There is no contradiction between the ocular account of occurrence and the injuries found on the person of the deceased as well as on the person of Muhammad Mushtaq PW. All the witnesses have described injuries on the persons of the victims corresponding to the medical evidence given by the Medical Officer namely Dr. Muhammad Afzal (PW-9) and Dr. E Moeen-ud-Din (PW-10). Although it is stated in the FIR by the complainant that, Muhammad Mansha accused had given churn blow on the chest of the deceased, but that by itself would not create any doubt in his testimony particularly when the other witnesses supported the version that 2 injuries were given by the aforesaid assailant to the deceased out of which the second njury was near the armpit. It may be noted that FIR s not an exhaustive ocument so as to contain each and every minor detail of the occurrence. Similarly it is not expected that a photogenic version, with a computer like exactness will be given in the FIR. There is not doubt that such like occurrences take place in a flash of moment and some time it is not possible for a witness to go into minor details regarding the number of injuries, but one thing is clear that the complainant was confident enough that attack was opened by Mansha upon the deceased by plunging churri into his chest. The medical report also contained 'both the injuries, one on the chest and other near the armpit, and as such there is no fatal contradiction, particularly when the other two witnesses as stated above, were clear enough to say that the deceased was given two injuries on the chest which were also side by side, to each other. The three injuries suffered by Muhammad Mushtaq PW were also clearly stated by all the PWs to have caused by co-appellant Muhammad Latif. 19. The plea that FIR was not prompt cannot be accepted because it will be natural on the part of the relatives of the deceased to take him to the Hospital to make frantic efforts to save his life rather than to rush to the Police Station to lodge the report and leaving the victim un-attended. In this case, both the victims were taken to the Hospital and the police had reached there and the statement was made at 10.30 PM, though the occurrence had taken place at 8.30 PM. It is therefore, obvious that keeping our present system of working of the police, it cannot be successfully urged that there was any delay in lodging the FIR rather it will appear that the FIR was prompt and there was no time for deliberations or concocting a false story as alleged by the defence. The FIR being prompt would be considered as a convincing circumstance of corroboration to the story given by the eye witnesses. 20. The recovery of weapons of offence i.e. churri from each of the accused cannot be doubted only because the recovery witness was a relative of the deceased. There is no enmity between the aforesaid witness and the accused, nor he had any animus to implicate the accused persons falsely in this case. It can be noticed with great concern that the people are very reluctant to poke their nose in the blood of others by becoming a witness thereby putting their lives in danger and misery at the hands of the assailants and their supporters. The tendency for procuring independent and dis-interested witnesses is therefore, becoming out of fashion due to certain compulsions identified above. A witness though related should not be dis­ believed until and unless it is shown that he is interested or inimical. In the instant case, one of the recovery witnesses though related is neither inimical nor interested to implicate the accused persons falsely in this case. Blood stained churries were got recovered separately by each of the accused namely Muhammad Mansha and Muhammad Latif and as such this is yet another circumstance to corroborate the truthfulness of the eye witnesses regarding he occurrence. As such the version as given by the eye witnesses regarding the ccurrence is' corroborated by the circumstantial as well as medical evidence. Hence they can be safely believed. 21. Now a question would arise as to what offence has been committed by the appellants. In respect of Muhammad Mansha there is no doubt that he had a clear intention to kill the deceased Muhammad Akram as he had chosen the vital part of the body by selecting the weapon like churri to finish his life. He also challenged deceased by raising lalkara followed by attack up him. The learned counsel for the appellant contended that in fact Muhammad Mansha was extremely provocated after hearing the false allegation of theft from the mouth of deceased and therefore, he committed the offence under an extremely agitated state of mind and as such provisions of Section 304 PPC would be attracted instead of Section 302 PPC. This argument however, does not appear to be convincing because motive about the occurrence was there, though it was not clearly spelt out by the eye witnesses at the trial. Except the complainant the other two witnesses mentioned that there was some dispute regarding some buffalo and as such the motive remained weak and shrouded in mystery, but it would not provide any justification to the appellant Muhammad Mansha to be enraged to an extent to lose his balance of mind so as to take the life of the deceased or'to open an attack resulting into his murder. There is evidence that after altercation with the deceased, he had gone to the house and had brought the churri, with which he caused fatal injury to the deceased. It is therefore, obvious that he had a clear intention to finish the deceased and had come prepared to the spot with that object. It therefore, cannot be said that element of pre-meditation was missing in the instant case qua Muhammad Mansha accused. He is therefore, rightly convicted under Section 302 PPC by the learned trial court for causing death of the deceased, intentionally. This will bring us to the question of sentence to be awarded to the appellant. As noticed above there was no direct evidence on the motive except that the witnesses mentioned that there was some dispute over the buffalo. In that way the immediate cause of murder and the actual motive as alleged in the FIR, remained shrouded in mystery and would call for a lesser sentence being a mitigating circumstances. The ends of justice will be satisfied if the sentence is converted into imprisonment for life instead of sentence of death as awarded to Muhammad Mansha appellant by the learned trial court. The aforesaid accused had only attacked the deceased and admittedly did not cause any injury to Muhammad Mushtaq PW. Likewise Muhammad Latif appellant-convict did not cause any injury to the deceased and had only opened attack upon Muhammad Mushtaq PW. If he had common intention with Muhammad Mansha to kill the deceased, then instead of attacking Muhammad Mushtaq PW, he would have proceeded to assault the deceased, as was done by appellant Muhammad Mansha. It, therefore, follows that Muhammad Latif appellant did not share common intention with his co-accused Muhammad Mansha appellant, convict so as to commit the murder of the deceased. The circumstances and the evidence brought on record will strongly imply that both the accused initiated separate actions at the time of occurrence and therefore, had no community K of purpose so as to hold them vicariously liable for each other. Both of them will therefore, be liable for their individual acts. The conviction of Muhammad Mansha appellant has already been upheld under Section 302 PPC and he is sentenced to imprisonment for life, instead of sentence of death. Since Muhammad Latif appellant is not held vicariously liable with the aforesaid Muhammad Mansha accused for causing death of the deceased, therefore, the benefit of doubt is extended to him and he is acquitted on the charge of Section 302 PPC. His conviction and sentence under the aforesaid section is set aside, but his conviction under section 307 PPC is maintained for causing murderous assault upon Muhammad Mushtaq PW. 22. The argument of the learned counsel for the aforesaid appellant is not convincing that since injuries on the person of victim Muhammad Mushtaq were not proved grievous through direct evidence, by examining the doctor who had carried the operation therefore, the appellant could not be held liable under section 3307 PPC. In this respect, it is enough to say that the appellant had given the churri blow to the victim Muhammad Mushtaq PW on his chest, which is a vital part of the body, therefore, he had been rightly convicted by the learned trial court for the murderous assault under Section 307 PPC. The conviction and sentence of Muhammad Latif appellant under section 307 PPC is therefore, maintained. The co-accused Muhammad Mansha is however, not vicariously liable as held above for causing injury to Muhammad Mushtaq PW. Therefore, he is acquitted on the charge under section 307 PPC and the sentence awarded to him under that section is set aside. 23. In view of the above finding, the criminal appeal No. 734/91 filed by Muhammad Mansha is partly accepted and his conviction and sentence under section 307 PPC is set aside. The conviction under Section 302 PPC passed against the appellant by the learned trial court is maintained and the appeal to that extent is dismissed with the modification that the sentence of death is converted into imprisonment for life. As such death sentence is not confirmed. Murder Reference No. 559/91 also stands disposed of accordingly. The sentence of fine of Rs. 10.000/- is maintained and if realised, shall be paid as compensation to the heirs of deceased under Section 544-A Cr.P.C. Benefit of Section 382-B Cr.P.C. is also extend to the appellant. The criminal appeal No. 702/91 filed by Muhammad Latif is also partly accepted and his conviction and sentence under section 302 PPC as indicated above is set aside, and the appellant is acquitted on that charge. His conviction and sentence under section 307 PPC and fine of R§. 4,000/- is maintained and his appeal to that extent is dismissed with the modification that the fine if realised shall be paid to Muhammad Mushtaq injured PW as compensation under Section 544-A Cr.P.C. He is on bail and shall be arrested and committed to prison for undergoing the above sentence. Criminal Revision Petition No. 600/91 is accordingly disposed of in the light of above observations. 25. The benefit of Section 382-B Cr.P.C. shall be extended to both the appellants namely Muhammad Mansha and Muhammad Latif. (MAA) Death Sentence not Confirmed/Sentence Modified.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1117 (DB) Present : KHALIL-UR-REHMAN RAMDAY AND raja muhammad khubshto, JJ. MUHAMMAD IQBAL--AppeDant versus STATE-Respondent Criminal Appeal No. 778 of 1991 and Murder Reference No. 349/91, decided on 13.3.1996. (i) Criminal Trial- —Investigation-Finding of Investigating Agency is not binding on court; as it has to decide matter on evidence produced before it-Finding of Investigating Agency cannot be thrown over-board because it is only agency which comes into contact with first hand evidence after occurrence takes places-It has, therefore, its own value and weight. [P. 1122] C (ii) Criminal Trial-- —Sifting grain out of chaff-Principle of—It is a matter of common knowledge that aggrieved party quite often increases number of accused although occurrence might have been committed by one out of them- This is very unfortunate tendency but this has come to stay in our system-It is for that reason that the principle of sifting the grain out of the chaff was evolved and recognised by Superior Courts so as to save innocent persons and to bring real culprits to gallows. [P. 1122] D (iii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302/307/109/34-Conviction-Challenge to-Appraisal of evidence-Eye witnesses (including one injured) related inter se-No plausible reason shown why they would depose falsely against accused/Appellant, their Deras and Dharies are in same vicinity so their presence at spot cannot be considered un-usual-Fatal injury to deceased and injuries to shoulder and head of eye-witness have been corroborated by medical evidence and locale, nature and number of injuries correspond to description given by eye-witnesses-Recovery of dagger stood proved-Serologist's report positive-Motive, as alleged, not proved—Story advanced by defence apparently not probable-Prosecution has proved its case-Accused/ appellant was rightly convicted. [Pp. 1121 to 1123 & 1125] A, B, E, F, G, H & K (iv) Pakistan Penal Code, 1860 (Act XLV of I860)-- —-S. 302/307-Sentence-Quantum of-Motive not proved why occurrence taking place suddenly and quickly ? Origin of occurrence shrouded in mystery-Death sentence not confirmed in the circumstances-Sentence altered to imprisonment for life with enhancement of fine-Sentence under Section 307 PPC maintained-Benefit of S. 382-B criminal Procedure Code given-Sentences shall run concurrently. [P. 1124] J (v) Qamra-e-Shahadat Order, 1984 (P.O. 10 of 1984)-- —-Art. 71-Expressions "direct evidence," "circumstantial evidence" and "presumptive evidence" used in English Law distinguished and explained in the light of Qanun-e-Shahadat-Expression "direct evidence" in English Law is used to signify evidence relating to fact in issue (factum probandum), whereas terms "circumstantial evidence", "presumptive evidence" and "direct evidence" are used to signify evidence which relates only to relevant facts (facta probantia)-Under Article 71 of Qanun-e- Shahadat, expression "direct evidence" has an altogether different meaning; it is used in sense of "original" evidence as distinguished from "hearsay" evidence and it is not used in contradiction to "circumstanti l" or "presumptive evidence"--Thus under the Qanun-e-Shahadat, all evidence whether direct or circumstantial in English sense, must, in the sense of that Law, be "direct" i.e. fact to be deposed to, whether it is a fact in issue or a relevant fact, must be deposed to by a person who has seen it if it is one which could be seen, by a person who has heard it if it is a fact which could be heard, and by a person who has percieved it by any other sense if it is a fact which could be perceived by any other sense etc-So it is clear that law insists for direct evidence of the primary source-It would be inadmissible if it comes from indirect source. [P. 1123] I Mr. Sultan Ahmad Khawqja, Advocate for the Appellant. Kh. Shaukat All, Advocate, for the State. Mr. Muhammad Afzal Wahla, Advocate, for Complainant. Date of hearing: 13.3.1996. judgment Raja Muhammad Khurshid, J.-The appellant Muhammad Iqbal was convicted under section 302 PPC and sentenced to death and a fine of Rs. 20,000/- or in default to under R.I. for 5 years for the murder of Iqbal Hussain son of Muhammad Hussain. The fine if realized was to be paid to the legal heirs of deceased as compensation vide judgment dated 15.7.1991 passed by Mr. Mujahid Hussain Sheikh, learned Additional Sessions Judge, Toba Tek Singh. The learned trial Judge vide the same judgment further convicted the appellant under section 307 PPC and sentenced him to seven years R.I or in default to undergo further R.I for 1 \ years for committing murderous assault upon Azam Hussain PW. Fifty per cent of the fine was to be paid to the injured PW as compensation under section 544-A Cr.P.C. 2. The brief facts are that on 17.2.1990 at about 7.00 AM the complainant Muhammad Hussain was proceeding to his cattleshed in square No. 14 of Chak No. 311/JB. His sons namely Iqbal Hussain and Azam Hussain were also accompanying him-When all three of them reached near crop of "Barsin" of Allah Ditta son of Allah Rakha, they were confronted by the accused party emerging from the sugarcane crop near the turn of road. Appellant Muhammad Iqbal was armed with a dagger, Muhammad Afzal was armed with a gun, while Muhammad Saleem was empty handed. They came near the complainant and out of them Muhammad Afzal raised lalkara that they had come to take revenge of their insult and shouted that Iqbal Hussain and Azam Hussain be done to death. In the mean time Saleem accused held the deceased Iqbal Hussain injapha from his back side whereas Muhammad Iqbal accused/appellant plunged dagger on the front side of his neck. 3. Azam Hussain PW tried to intervene, but the aforesaid Muhammad Iqbal accused/appellant opened attack on him thereby causing injury on his left wrist and on the head. The aforesaid Azam Hussain fell down. The accused Saleem released Iqbal Hussain from his japha whereupon the latter also fell on the ground. The complainant tried to intervene but was threatened with his life whereupon he did not go ahead out of fear. The hue and cry raised by the complainant attracted Nazir Ahmad son of Jan Muhammad, Allah Ditta son of Abdullah residents of the village, who happened to see the occurrence. The accused persons ran away while raising lalkara. The deceased died on the spot. 4. The complainant further deposed in the FIR that the occurrence was committed by the forenamed three accused at the abetment of Rahmat Ali son of Allah Rakha. 5. The motive about the occurrence was that Iqbal Hussain deceased and his brotherAzam Hussain injured Pw were conducting dog­ fight near their cattleshed on 16.2.1990. The dogs while fighting entered into the wheat field of Muhammad Iqbal accused/appellant. All of them namely Muhammad Iqbal, Saleem and Muhammad Afzal came to the spot and started abusing Iqbal Hussain and Azam Hussain as to why they were conducting dog fight in their field of wheat. The aforesaid Iqbal Hussain deceased and Azam Hussain injured PW also abused in reply besides slapping them. That occurrence was seen by Muhammad Sharif son of Abdullah and Islam son of Bashir Ahmad, who intervened and separated the parties. The accused namely Muhammad Iqbal, Saleem and Muhammad Afzal left the place while holding out that they will take revenge of their insult. In pursuance of the aforesaid threat the accused namely Muhammad Iqbal, Saleem and Muhammad Afzal committed the murder pf Iqbal Hussain and caused injuries to Azam Hussain PW, after hatching conspiracy with Rahmat Ali. The report about the occurrence was lodged at the Police Station, Gojra, Toba Tek Singh on the same day at about 8.55 AM. A case under section 302/307/109/34 PPC was registered vide FIR Ex. PJ upon the statement of Muhammad Hussain complainant 6. The learned trial Judge convicted Muhammad Iqbal appellant as aforesaid but acquitted Saleem, Muhammad Afzal and Rahmat All after giving them the benefit of doubt The present appeal was filed by Muhammad Ibqal appellant/convict to challenge the conviction and sentence as aforesaid. The learned trial Judge also made a reference under Section 374 Cr.P.C. for the confirmation of the death sentence awarded to the appellant/convict. Criminal Revision Petition No. 494/91 was filed by Muhammad Hussain against the acquitted accused namely Saleem, Muhammad Afzal and Rahmat Ali with the prayer that the respondents forenamed be convicted and sentenced to death under section 302 PPC. 7. All the aforementioned three matters are proposed to be decided by this judgment. 8. We have heard the learned counsel for the parties and have taken into consideration the evidence brought on record. The prosecution has relied upon the motive regarding the occurrence, which took place a day preceding the occurrence. In that occurrence the dogs of the deceased party strayed into the field of the accused during the dog-fight This led to exchange of abusing and slapping to the accused/appellant The appellant/accused held out threats that he will take the revenge of his insult In pursuance of the aforesaid threats the present occurrence was committed. According to FIR, Muhammad Afzal had raised Lalkara whereupon the deceased was taken into japha by Muhammad Saleem on the instigation of Rahamt Ali accused. All these three accused were acquitted by the learned trial court after giving them the benefit of doubt. They were also found innocent during the police investigation as well. The appellant/convict was, however found guilty for committing the murder of the deceased Iqbal ussain and committing murderous assault upon Azam Hussain PW. 9. The prosecution had relied upon the ocular account of occurrence, medical evidence, the recovery of blood stained earth from the spot and recovery of weapon of offence i.e, dagger from Muhammad Iqbal appellant he dagger P 5 recovered from the accused was found to have been stained with humen blood. 10. The learned counsel for the appellant submitted that all the eye witnesses were inter-se related and were also close relatives of the deceased and the injured PW. It was further submitted that except Azam Hussain the other two witnesses were not present at the spot and would be considered as chance witnesses. It was alleged that there was no independent orroboration of un-impeachable nature so as to persuade that reliance could be placed on the evidence given by the eye witnesses. The veracity of those witnesses became doubtful because three out of the four accused mentioned above were acquitted and as such implicit reliance on their statements qua the appellant/convict might result into mis-carriage of justice. In this regard it was urged that the witnesses who had tried to implicate innocent persons could not be believed till they were corroborated by the evidence of impeachable sterling value. In this case no such corroborative evidence was available, therefore, it would be rather un-safe to believe the eye witnesses qua the appellant/convict The recovery of the dagger was also allegedly doubtful as it had not matched the injury found on the person of the deceased and Azam Hussain PW. It was accordingly urged that the prosecution case was extremely doubtful. The motive was also not proved. Therefore, the story given by the defence was plausible that the appellant/convict was coming from bis Dera after milking; that he was confronted on his way by the complainant side which resulted into the present occurrence after he was given two soti blows, by Azam injured PW, the appellant thereupon allegedly pulled out a pen-knife and gave two injuries to Azam Hussain aforesaid, the deceased Iqbal Hussain caught hold the testicle of the appellant causing him pain, whereupon he gave back-hand blow which fell on the neck of the deceased. The accused/appellant further stated that quarrel over the fight of dogs was trivial and that he had no intention to be aggressive to the deceased or his brother, but only it was an unfortunate incident He also stated that none of the eye witnesses were present at the spot. The deceased was taken to his house by his father who arrived at the place of occurrence after the murder had already been committed. The dead body was taken to the house of deceased after a cot was provided by Mubashir Hussain a resident of neighbouring Dhari. He also took up the plea that much before the arrival of the eye witnesses, the occurrence had taken place and was seen by Falk Sher Awan and Saif Ullah who were attracted to the post and were in the knowledge of actual occurrence. He claimed to be innocent 11. The incident of motive was seen by Muhammad Sharif PW-7 and given up PW Muhammad Islam. Muhammad Sharif was disbelieved by the learned trial Judge on the ground that he was reluctant to disclose the name of his brother Allah Ditta when a question was put to him during the cross-examination. Taking into account such like demeanour of the witness the learned trial Judge discarded his testimony. The other witness namely Muhammad Islam was not examined at the trial. Although Muhammad Hussain complainant deposed as PW-9 that he had come to know about the occurrence relating to the motive, but during the cross-examination he dmitted that he was not present when that occurrence had taken place. It is thus obvious that there is no convincing evidence which may prove the motive as alleged by the prosecution. 12. Now we come to the ocular account of occurrence. Muhammad Hussain (PW T 9) is a complainant and also father of the deceased and injured PW Azam Hussain. The other witness Azam Hussain, who had sustained injury during the transaction was examined as PW-10. Allah Ditta is first cousin of the complainant He appeared as PW-11 and supported the prosecution case. It is true that all these three eye witnesses are related inter-se, but that by itself would not discard their testimony if it otherwise inspires confidence. We have not been shown any plausible reason as to why they would depose falsely against the accused if he had not killed their kith and kin. The objection that all these three witnesses were not present at the place of occurrence seems to be devoid of force because one out of them namely Azam Hussain had sustained injuries at the hands of the appellant/convict. The injuries on his person were correctly described by eye witnesses, which also matched with the injuries given in the Medico Legal Report. The age of injuries given by the Medical Officer corresponds to the time of occurrence given by the eye witnesses as 7.00 AM. These circumstances go a long way to establish that there can be no doubt about the presence of eye witnesses at the spot. They cannot be considered chance witnesses because they come from the same locality and reside in each other's neighbourhood. All the eye witnesses belong to the same village. Their "Deras and "Dharies" are in the same vicinity. Hence their presence at the spot Cannot be considered as unusual or out of place. Rather their presence would look to be quite natural. 13. The next question would be whether the same evidence could be utilized against the appellant/accused if the other three co-accused were acquitted ignoring their testimony. It is true that one of the accused namely Muhammad Afzal was involved for lalkara, the other Muhammad Saleem for japha and the third Rahmat Ah' for instigating the murder of the deceased. They were found innocent by the investigating agency. It is also true that finding of the investigating agency is not binding on the Court, as it has to decide the matter on the evidence produced before it. However, at the same time, the finding of the investigating agency cannot be thrown over­board because it is the only agency which comes into contact with the first hand evidence after the occurrence takes place. It has, therefore, its own value and weight. It is also a matter of common knowledge that the aggrieved parly quite often increases the number of accused although the occurrence might have been committed by one out of them. This is very unfortunate tendency but this has come to stay in our system. It is for that reason that the principle of sifting the grain out of chaff was evolved and recognised by the superior courts of this country, so as to save innocent persons and to bring the real culprits to gallows. In this case the application of principle of sifting the grain out of the chaff is no exception and the (evidence relied upon by the learned trial court qua the appellant/convict cannot be discarded, though his co-accused have been acquitted. Even otherwise there is distinguishing feature because the recovery of dagger P5 was effected from the appellant/accused, which he had used during the occurrence to cause fatal injury to Iqbal Hussain deceased and causing injuries to Azam Hussain PW on his left shoulder and head. The injuries found on both the aforesaid persons have been corroborated by the medical evidence as the locale, nature and number of injuries corresponded to their description given by the eye witnesses in their statements. The dagger P5 was found by the Serologist to have been stained with humen blood. The recovery witness in this case is an independent person and there is nothing against him, for which his testimony should be doubted. He is an impartial person and resides in the neighbourhood and as such can be safely relied upon. These corroborating circumstances were not available in respect of acquitted accused as compared to the appellant/convict and therefore, the grain had to be sifted out of the chaff, which resulted into the acquittal of three accused and conviction of the present appellant/convict. 14. The appellant/accused has given his own version that he was attacked in the morning of unfortunate day and was given two soti blows by Azam Hussain PW whereupon he pulled out his pen-knife and caused injuries to the deceased and the injured PW. This story does not appear to be probable because both the victims were quite young and it was not possible that the accused will be able to counter attack so as to take life of one of his rivals and cause injuries to the other one without suffering even a scrach on his body. The defence story is invented only to save his skin. On the contrary the dagger P 5 recovered from the appellant/accused is a lethal weapon. Its blade is 21 c.m. long and 3 c.m. wide with double sharp edges. It is a formidable weapon and not a pen-knife as claimed by the appellant/accused. The dimension of injuries found on the person of the deceased as well as to injured PW are quite responsive to the dagger P 5 than to any pen-knife as claimed by the appellant. 15. In view of our bove discussion, we come to an irresistible conclusion that the prosecution has been able to prove its case against the appellant/accused beyond any reasonable doubt. The convictions of the appellant under section 302 PPC and under section 307 PPC have rightly been made by the learned trial court and call for no interference. 16. Before we take up the question of sentence, it will by necessary to make certain observations regarding the statement of Investigating Officer (PW-12), whereby instead of examining the direct evidence, the learned trial court had admitted hearsay evidence in violation of Article 71 of the Qanune-Shahadat Order 1984. The expression "direct evidence" in English law is used to signify evidence relating to the fact in issue (factum probandum), whereas the terms "circumstantial evidence", "presumptive evidence" and "direct evidence" are used to signify evidence which relates only to relevant facts (Facta probantia). Under Article 71 of Qanun-e-Shahadat Order, however, the expression "direct evidence" has an altogether different meaning; it is used in the sense of "original" evidence as distinguished from "hearsay" evidence and it is not used in contradiction to "circumstantial" or presumptive evidence". Thus under the Qanun-e-Shahadat all evidence whether direct or circumstantial in the English sense, must, in the sense of that law, be "direct" i.e. the fact to be deposed to, whether it is a fact in issue or a relevant fact, must be deposed to by a person who has seen it if it is one which could be seen, by a person who has heard it if it is a fact which could be heard, and by a person who has perceived it by any other sense if it is a act which could be perceived by any other sense etc. So it is clear that the law insists for a direct evidence of the primary source. It would be inadmissible if it comes from an indirect source. In the instant case the crossexamination of PW-12 would show that certain facts were brought on record without producing the primary evidence. In this context the following portion may be pointed out:- "Mubashar Ahmad son of Sadiq All met me on the same day. He told me that his dahri was nearby the place of occurrence and on hue and cry he went to the spot and saw Muhammad Iqbal accused alone running away from there. He also told me that Falaksher and Saifullah had already reached the spot He told me that he had brought a charpai and then the relative of deceased had arrived and had taken his dead body to the village. On 18.2.1990 Doctor Ghafoor Ullah appeared before me and gave me certain facts, about the occurrence. He said that he had gone to see Azam injured PW who told him that he and Iqbal deceased were coming from their dera after milking. Iqbal Hussain deceased was carrying miTk Iqbal accused met them on the way who accosted them and he had given Iqbal accused two soft" blows. He also told that this confrontation took place because of a quarrel of the previous day. In the light of this information I also recorded the statements of Falaksher and Saif Ullah. ASP also investigated this case on 18.2.1990.1 was also a party to that investigation. Allah Ditta s/o Allah Rakha, Muhammad All s/o Allah Rakha, Sadiq, Boota and Akram appeared. They stated that only Iqbal had participated in the occurrence." 17. It follows from the above quotation that "in direct" Le. "hearsay evidence" was allowed to be brought on record without any objection although it should have been brought on record after examining Mubashar Ahmad, Falaksher, Saif Ullah, Doctor Ghafoor Ullah, Allah Ditta son of Allah Rakha, Muhammad Ali son of Allah Rakha, Sadiq, Boota and Akram, They were the right persons to be examined if the facts referred to above were to be proved through legal evidence, but none of them were put in the witness box and in their absence the aforesaid evidence was merely a hearsay evidence and would not carry any legal value. We therefore, find that the learned trial Judge fell in error to bring on record such type of evidence. 18. The question of sentence under section 302 PPC needs consideration in this case. The motive has not been proved by the prosecution. A question would therefore, arise as to what had actually appened so, suddenly and quickly, which resulted into the unfortunate incident. Allah Ditta (PW-11) stated that there was some sort of grappling between the accused and deceased before the latter fell on the ground. This leads us to a conclusion that the origin of occurrence remained shrouded in mystery. As such it would call for an alternate sentence of imprisonment for life as provided under section 302 PPC. The capital sentence under such circumstances would not be warranted under law. The death sentence awarded to the appellant/convict is therefore, not confirmed. It is accordingly converted into imprisonment for life under section 302 PPC with a fine of Rs. 20,000/- or in default to further undergo 5 years' R.I. 19. We propose to enhance the amount of compensation to the heirs of the deceased. A notice under section 544-A Cr.P.C. to that effect is given to the learned counsel for the appellant Kh. Sultan Ahmad, who has accepted the same. After hearing the learned counsel for parties on the point, we award Rs. 30,000/- as compensation to the heirs of the deceased or in default the appellant will undergo six months S.I. This amount will be in addition to the amount of Rs. 20,000/- which has been awarded by the learned trial court, if the same is realised as a fine from the appellant/convict. The conviction and sentence under section 307 PPC awarded to the ppellant/convict by the learned trial court are maintained. Both the sentences shall run concurrently. Benefit of section 382-B Cr.P.C. is also extended to the appellant. 20. Murder Reference is accordingly decided and death sentence of appellant is not confirmed. 21. The appeal of the appellant/accused is dismissed with the above modification in sentence. The Criminal Revision Petition No. 494/91 is also dismissed. (MAA) Order accordingly.

PLJ 199ffCr PLJ 199ffCr.C. (Lahore) 1125 [Multan Bench] Present: MUHAMMAD NASEEM, J. INTIZAR HUSSAIN and another-Petitioners versus STATE-Respondent Criminal Misc. No. 2000/B of 1994 decided on 19.3.1995. (i) Criminal Procedure Code, 1898 (Act V of 1898)— —S. 497-Bail-Grant of--Prayer for--Offence u/s. 302/34 PPC-Blind murder--Judicial confession alongwith extra-judicial confession made by co-accused (wife of deceased) cannot be brushed aside lightly which stands supported by two minor daughters (aging 11 and 9 years) of deceased-Investigating Officer successfully implicating accused-Przma facie connect accused with occurrence-Case falls under prohibitory clause of S. 497(1) of Code of Criminal Procedure-Bail refused. [P. 1128] B, D 1992 P.Cr.LJ. 1494 ref. (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 164-Judicial Confession-Offence u/s. 302/34 PPC—Magistrate remanding back of accused to police custody after recording confessional statement-Effect of--If accused was remanded to the police custody, judicial confession cannot be held involuntary. [P. 1128] C 1969 SCMR 521 relied. (iii) Criminal procedure Code, 1898 (Act V of 1898)- —S. 164—Judicial confession-Offence u/s. 302/34 PPC-Legality and propriety of confessional statement cannot be scrutinized at bail stage as it would be for trial court to decide such delicate matter. [P. 1127] A 1992 P.Cr.L.J. 1513 ref. Sahibzada Farooq All Khan, Advocate, for Petitioners. Sh. Muhammad Rahim, Advocate, for State. Sh. Muhammad Farooq, Advocate, for Complainant Date of hearing: 15.3.1995. order Ch. Muhammad Eyas President Anjuman Tajraan, Gulshan- Market Multan was intimated by one Rafiq Ahmad at 10.45 £-in. on 16.5.1994 that in a vacant plot adjacent to Asim Junior Public School, "K" Block New Multan a gunny bag containing a dead body was lying out of which stink was issuing. About this blind murder Ch. Muhammad Dyas intimated the police and FIR No. 305 dated 16.5.1994 was registered at Police Station New Multan under section 302 PPC. The police investigated the case and during the investigation it was found that Mst. Yasmin coaccused widow of Nasim Hassan deceased of this case made the extrajudicial confession on 29.6.1994 before Manzoor and Tariq PWs to the effect that she had committed the murder of her husband Nasim Hassan alongiwth Intizar Hussain and Mukthar Hussain accused (petitioners). On 3.7.1994 Intizar Hussain and Mukhtar Hussain accused-petitioners made the confession before Abdul Majeed PW to the same effect. Both Intizar Hussain and Mukthar Hussain were arrested on 10.7.1994. On 11.7.1994 both Intizar Hussain and Mukhtar Hussain accused are said to have led to the recovery of on x e trolley in which they had removed the dead body of Nasim Hassan. On 11.7.1994 their individual statements were recorded by a Magistrate 1st Class Multan wherein they confessed their guilt to the effect that they alongwith Mst. Yasmin caused the death of Nasim Hassan through asphyxia. On 12.7.1994 the statements of Mst. Umme Kulsoom aged 11 years and Mst. Rabia aged 9 years both daughters of Nasim Hassan deceased and Mst. Yasmin co-accused made their respective statements before the police to the effect that on the night falling between 14/15.5.1994 they were sleeping when they heard the shriek of their father. They went to that room and saw that towards the pillow side of their father their mother Mst. Yasmin and Intizar Hussain were standing while towards his feet Mukhtar Hussain was standing. They were intimated by their mother that their father was not feeling well. According to them their mother advised them to inform anybody enquiring about their father that he had gone out of house alongvvith some person. Both Intizar Hussain and Mukhtar Hussain have filed this petition for their admission to bail. 2. I have heard the learned counsel for the parties as well as learned State counsel and gone through the record before me. The main contention of the .learned counsel for the petitioners is that the alleged judicial confession of both Intizar Hussain and Mukthar Hussain petitioners was the outcome of coercion who were remanded back to the police custody by the Magistrate 1st Class after recording their confessional statements and for the reason this part of the evidence has no legal force. He continued that the extra judicial confession of both the petitioners-accused as well as that of Mst. Yasmin was a weak type of evidence and the recovery of the trolley has no legal force. According to him the statements of Mst. Umme Kulsoom and Mst. Rabia recorded on 12.7.1994 need not be given the weight in view of the lapse of period in between 16.5.1994 and 12.7.1994. On the contrary learned State counsel and the learned counsel for the complainant argued that the aforesaid type of evidence to be produced at the trial has connected both the accused persons prima facie with the occurrence in hand and they are not entitled to be admitted to bail. According to them the extra-judicial confession made by a co-accused Mst. Yasmin has also to play the role against these petitioners. They relied on Hag Nawaz versus The State (1992 P.O.L.J. 1494 Lahore). On the authority Rehman versus Ghulam Qadir Khan alias Qadir Khan and another (1992 P.Cr.L.J. Peshawar 1513) they argued that the legality and propriety of the confessional statements cannot be scrutinized at bail stage as it would be for the trial court to go into such delicate questions. They also referred to Muhammad Sharif versus The State (1969 S.G.M.R. 521) according to which the mere fact that the person making the confession was remanded back to the police custody by the Magistrate would not make the confession as involuntary. 3. Following type of evidence has to be produced by the prosecution during the investigation:- (i) Extra-judicial confession of Mst. Yasmin co-accused before Manzoor and Tariq PWs. (ii) Extrajudicial confession of both Intizar Hussain and Mukhtar Russian petitioners-accused before Abdul Majeed PW. (iii) Recovery of trolley. (iv) Judicial confession of Intizar Hussain and Mukthar Hussain petitioners-accused as well as that of Mst. Yasmin co-accused. (v) Statements of Mst. Umme Kulsoom aged 11 years and Mst. Pvabia aged 9 years implicating both the petitionersaccused and their mother Mst. Yasmin whom they had seen standing near the cot of their father Nasim Hassan at the time of occurrence. 4. After appreciating the arguments addressed by the learned counsel for the parties as well as learned State counsel, I have to express my view that it is not a case for the admission of both Intizar Hussain and Mukhtar Hussain to bail. The extra-judicial confession made by the female co-accused has to be considered as a corroborative piece of evidence alongwith their own extra-judicial confession before Abdul Majeed PW. The recovery of trolley even if excluded at this initial stage is of no help to both the petitioners-accused. The judicial confession recorded by the Magistrate st Class Multan cannot be brushed aside lightly as desired by the Teamed counsel for the petitioners because in view of the aforesaid judgment (1992 P.Cr.L.J. 1513 ( Peshawar ) the legality and propriety of the same has to be gone into deeply by the trial court. Even after the conclusion of their statements on the authority of 1969 S.C.M.R. 521 if the accused were remanded to the police custody the judicial confession cannot be held to be involuntary. The statements of Mst. Umme Kulsoom and Mst. Rabia even though recorded on 12.7.1994 need not be ignored keeping in view their tender ages which they made to unearth the blind murder especially when all the three accused had made their confessional statements befor a Magistrate 1st Class. With the material to be produced during the trial by the prosecution it can safely be held that the petitioners are prima facie connected with the occurrence and the Investigating Officer has successfully made the investigation to implicate them. This being the position the petitioners are not entitled to be admitted to bail against whom the prosecution case falls under the prohibitory clause of section 497 Cr.P.C. 5. For what has been said above I dismiss this petition. (MAA) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1129 [DB] Present: riaz hussain and rao naeem hashim khan, JJ. MUHAMMAD AKHTAR-AppeUant versus STATE-Respondent Criminal Appeal No. 38/92 and Murder Reference No. 77/92 decided on 20.3.1995. (i) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302~Conviction/sentence--Challenge to~Appraisal of evidence-Eye witnesses explaining their presence at relevant time at place of occurrence-Medical evidence corroborative to ocular testimony-Eye witnesses closely related to deceased having no animus against appellant- Substitution for real culprits, as contended by defence counsel, not possible-Co-accused declared innocent in investigation and not sent up for trial, no part attributed to him~Trial Court rightly acquitted coaccused--No chance of mistaken identity-Recovery of knife proved-Prosecution has proved its ease beyond reasonable doubt. [P. 1132 & 1133] A, B, C, F, G PLD 1991 SC 397 and PLD 1975 SC 227 ref. (ii) Pakistan Penal Code, 1860 (Act XLV of I860)-- —-S. 302-Quantum of sentence-No evidence with regard to immediate cause of fight-Explanation for that could be twofold, either prosecution did no know what led to fight or prosecution was not ready to disclose true facts of case, benefit of which should go to accused-Appellant inflicted single knife blow to deceased—Sentence commuted to life imprisonment with benefit of S. 382-B Cr.P.C.. [P. 1133] H, I (iii) Identification-Moonlit Night- —Mistaken identity-Occurrence taking place at 8. p.m.—On 13th of Lunar month, besides, electric light was available as there was marriage in village-Eye witness was at a distance of one Karam--No chance of mistaken identity in the circumstances. [P. 1133] E (iv) Criminal Trial-- —It was no rule of universal application that when a certain accused was found innocent by Court, other accused would ipso facto stand acquitted- Court has to sift the grain from the chaff. [P. 1232] D Ch. Abdul Hakeem, Advocate, for the Appellant. Mr. Zafarullah Dareshik, A.A.G., for the State. Dated of hearing: 19.3.1995 and 20.3.1995. judgment Riaz Hussain, J.--Muhammad Akhtar son of Bashir Ahmad was tried for the murder of Muhammad Yusuf by the learned Sessions Judge Vehari who vide his judgment dated 3.2.1992 convicted and sentenced him to death and a fine of Rs. 5,000/- or in default of payment of fine to undergo rigorous imprisonment for one year. He was also to pay an amount of Rs. 10.000/- as compensation to the heirs of the deceased or to undergo six months rigorous imprisonment. 2. The convict filed an Appeal No. 38/92. The Murder Reference No. 77/92 was also before us for the confirmation of death sentence. We shall dispose of both the matters by this judgment. 3. The prosecution story in brief as narrated in the FIR lodged by Muhammad Younus P.W. 6 was to the effect that on 10.1.1990 he alongwith Muhammad Yousuf alias Allah Ditta deceased Muhammad Yaqub alias Allah Rakha was going to the house of Muhammad Siddique where the music was playing as the marriage of his son Muhammad Anwar was going to take place on the following day. When at 8.00 p.m. they reached near the land owned by Akbar Ali Bhatti, Muhammad Amin and Muhammad Akhtar appellant suddenly emerged on the scene of occurrence and exhorted that they would avenge their insult. Muhammad Amin took Muhammad Yousuf in his clasp whereas the appellant gave knife blows which hit him on the chin and left side of his chest. The complainant Muhammad Yaqub raised hue and cry which attracted Nazir Ahmad and Amin son of Akbar Ali on the scene of occurrence. Muhammad Yousuf was being taken to Chak No. 19/WB. when he sccumbed to the injuries. 4. The motive for the occurrence as alleged was that Muhammad Yousuf deceased was challaned in a theft case. He suspected that he was involved on the secret information of the appellant and Amir son of Muhammad Akbar. One day prior to the occurrence Muhammad Yousuf deceased had insulted Muhammad Amin and the appellant The appellant had issued him the threats of dire consequences. 5. The occurrence of this case took place on 10.1.1990 at 8.00 p.m. in the area of Chak No. 19/WB, Tehsil & District Vehari, near the house of Muhammad Siddique son of Rora resident of the same Chak, 10 miles from .S. Machiwal, FIR Exh. PF was recorded at 12.15 a.m. on the same night 6. Aftabullah, Sub-Inspector, PW. 9, after recording the FIR reached the spot He prepared the injury statement Exh. PC and inquest report Exh. PD. He despatched the dead body for autopsy. He secured blood stained earth vide recovery memo Exh. PH. He got prepared site-plant Exh. PE Exh. PE/1, PE/2 prepared from the Patwari Halqa, He recorded the statements of the witnesses. He arrested Muhammad Akhtar appellant on 20.1.1990. The appellant while in custody led to the recovery of blood-stained knife Exh. P. 6 which was secured vide recovery memo. Exh. PG. 7. The post-mortem examination of the dead body of Muhammad Yousuf was conducted on 11.1.1990 by Doctor Muhammad Abdullah, Medical Officer, DHQ, Vehari at 1.00 p.m. who found the following injuries:- 1. An incised wound 2.5 cm x 05 cm x deep 6 cm from the left nipple and 5 cm from the sternum, in the 5th inter-costal space on the left side anterior of the chest. 2. A contusion 3 cm x 2 cm on the chin left side. The corresponding cut to injury No. 1 was present in the clothes. In his opinion death was caused due to shock and haemorrhage as a result of injury No. 1 which was sufficient to cause death in ordinary course of nature. This injury was caused by sharp : edged weapon whereas injury No. 2 was caused by a blunt weapon. 8. The prosecution in order to substantiate the allegations produced 10 witnesses in all. P. W. 2 Ghulam Rasool escorted the dead body of Muhammad Yousuf to the mortuary. Muhammad Ramzan Patwari Halqa prepared the site plan Ex. PE, PE/1, PE/2 at the instance of the police. Muhammad Younus PW. 6 and Muhammad Yaqub PW. 8 furnished the ocular version of the occurrence. They also attested the recovery memo of incriminating knife P. 6 and blood stained earth. 9. The appellant when examined professed innocence and stated that he was involved due to enmity with the eye witnesses. He did not opt to make a statement. However, he produced Muhammad Yaqub as DW1. 10. Learned counsel for the appellant submitted that the eye witnesses were not only closely related to the deceased, they were also inimical to the appellant. Further submitted that Muhammad Amin son of Akbar Ah' and Nazir Ahamd who were independent witnesses were not produced with the result that there was uncorroborated testimony of interested witnesses in the field. It was also argued that the prosecution failed to prove motive and recovery of incriminating knife P. 6. It was contended that the deceased was involved in many criminal cases. He had many foes and the possibility of his being killed by some one else could not be ruled put. It was urged that the presence of the eye-witnesses at the relevant time was not believable as there was no marriage function on that day. It was also urged that on 10.1.1990 at 8.00 p.m. the night being dark it was not possible for the witnesses to identify the appellant. It was lastly argued that when the learned trial Court found Muhammad Amin son of Akbar All innocent, it was not lawful to convict the appellant on the same evidence. 11. Learned Assistant Advocate-General repelled the arguments of the learned counsel for the appellant and supported the judgment of the trial Court. 12. We have scrutinised the evidence available on the record and heard the learned counsel at length. 13. The eye-witnesses have successfully explained their presence at the relevant time at the place of occurrence. It was not uncommon that when some wedding was in offing, music was played and the people in order to enliven themselves did attend such functions heartily In Riasat All vs. The State (PLD 1991 S.C. 397), their lordships observed as follows:- "It would suffice to say that even if a chance witness, his explanation regarding what he wanted to do at Railway Office being acceptable the so called stigma of being a chance witness loses significance. The argument of the learned counsel that the Railway Office was closed, therefore, the witness should have been declared as having prejured himself is also without much force. The witness had gone to the Railway Station to get a seat reserved for Karachi. There is nothing to show that this was impossible to achieve." They have corroborated each other of all material points. Their evidence is further corroborated by the medical evidence and recovery of incriminating knife P6. They were cross-examined at length but the defence could not elicit anything in its favour. Their evidence could not be brushed aside merely for the reason that they were closely related to the deceased especially when they had no personal animus against the appellant. In Abdur Rashid vs. UmidAli & 2 others, (PLD 1975 S.C. 227), it was observed that:- "The next important point which really forms the crux of the matter is the question of the credibility of the three eye­ witnesses, namely, Abdur Rashid (PW. 8), Aurangzeb (PW. 9) and Muhammad Nazir (PW. 10). PW and 10 were the brothers of Babu Faqir Muhammad while PW. 9 was the Kamdar of Doctor Tahir Hussain Saddiq and as such they certainly had close interest in the deceased. In view of the established rivalry between the parties and clash of interest over land, the witnesses were not wholly disinterested. It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied." 13. There is nothing on the record that the witnesses were involved in criminal cases. They were also not privy to the criminal activities of the deceased. It is in evidence that PW 8, who is there all brother of the deceased, stood surely only once for him in certain case. Viewed in this backdrop, it will be absolutely difficult to presume that they would substitute the present appellant for the real culprit. 14. Muhammad Amin, who was named in the FIR, was declared innocent by the police and was not sent up by it to face trial. He had not caused any injury to the deceased. It was no rule of universal application that when a certain accused was found innocent by the Court, the other accused ^ would ipso facto stand acquitted. The Court has to sift the grain from the chaff. E 15. We are of the opinion that the learned trial Court rightly observed that on 10.1.1990 at 8.00 P.M. it was the 13th of lunar month and obviously there was sufficient light. It was also deposed by the witnesses that he electric light was available as the marriage of Muhammad Anwar son of Muhammad Siddique was going to take place on the following day. Even otherwise the eye witnesses were at a distance of about one karam and since they were known to each other, therefore, there was no question of mistaken identity. 16. The recovery of knife P 6 cannot be discarded simply for the reason that its recovery memo was attested by the eye witnesses. It is pertinent to note here that the same was attested by Aftabullah Subnspector PW 9 as well, against whom no enmity was suggested. G 17. DW 1 Muhammad Yaqub did not vouch for the innocence of the appellant. His deposition was that eye witnesses and the deceased were not invited by him to relish the music. He, however admitted that the appellant belonged to his brotherhood and conceded that music was playing in his house and further stated that the people did come to enjoy it even uninvited. 18. In these circumstances, we hold that the prosecution has been able to prove the case against the appellant beyond the reasonable doubt. H 19. Now comes the question of quantum of sentence. Appellan Muhammad Akhtar and Muhammad Amin son of Akbar All had been transmitting he secret information about criminal activities of the deceased for the last many years. Therefore, it will be difficult to hold that for that matter, the deceased took strong exception and enraged the appellant to the extent that he murdered the deceased. There s no evidence with regard to the immediate cause and the explanation for that could be two fold. First, either the prosecution did not know what led to the fight, or the prosecution was not prepared to disclose the true facts about this aspect of the case. In either way, its benefit must go to the appellant It also appears that the appellant inflicted a single knife blow to the deceased and did not repeat his overt act. 20. Pursuant to the above discussion, the appeal is dismissed. However, we decline to confirm the death sentence of the appellant, the same is commuted to life imprisonment but we maintain the sentence of fine of Rs. 5,000/- in default whereof the appellant shall undergo R.I. for one year further. The appellant shall also pay the sum of Rs. 10,000/- to the legal heirs of the deceased Muhammad Yousaf or in default shall undergo six months, simple imprisonment, as ordered by the trial Court The appellant shall also be given the benefit of Section 382-B Cr.P.C. 21. The death sentence is not confirmed. (MAA) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1134 Present: abdul Aziz bhatti, J. RASHID AHMAD--Petitioner Versus STATE-Respondent Criminal Misc. No. 162/B-1996 in Criminal Appeal No. 28 of 1994 accepted on 2.4.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 426 (1-A) (c)--Pakistan Penal Code, 1860--S. 302(b)-Suspension of sentence-Accused was in Jail for the last more than two years and there being no likelihood that his appeal will be heard in near future-Deceased died with one shot attributed to petitioner-For no fault of petitioner, ppeal could not be taken up for hearing and statutory period has elapsed-Sentence was suspended in the circumstances. [P. 1137] D (ii) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 426(l)(c)-Suspension of sentence-After lapse of two years, appellate court shall suspend sentence-It is discretion of Court, keeping in view facts and circumstances of case to suspend or not to suspend conviction order. [P. 1136] A (iii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 426-Suspension of sentence-In cases of extraordinary nature having significance of brutal, extreme cruelty, rather crime is of nature which is not only detestable but throwing some light over chequered character of convict, his conduct and motive to commit crime are paramount considerations for refusal order-Every case ki.s its own facts and in light of those, bail is either to be refused or accepted. "There are some other crimes which are though crimes and the society do dislike that but in such cases suspension order can safely be passed as the edifice of justice will not be damaged—For example, a person is murdered with one shot-After death his dead body is humiliated by the accused which makes it a extremely serious matter than a simple one-In such like case, bail may be refused." [Pp. 1136&11371B&C Sardar Muham.mad Ishaq Khan, Advocate, for the Appellant/ Petitioner Sh. WaqarAzeem Siddiqui, Advocate, for the Complainant Qazi Ahmad Naeem Qureshi, Advocate, for the State. Date of hearing: 2.4.1996. order Briefly stated the facts of this case are that a case FIR No. 121 dated 27.5.1993 under Sections 302/148/149/337-F(v)/337-A (ii)/427 PPC registered at Police Station City, Attock against the petitioner and some others for rioting, being armed with deadly weapons and in furtherance of their common intention committing murder of Bakhsheesh Elahi and inflecting injuries to Inayat Elahi and Rehmat Elahi and causing damage to the vehicles belonging to the complainant party 27.5.1993 at bout 12:30 Noon within the area of bus stand, Attock City. 2. The motive for the occurrence as stated in the FIR is a dispute between the parties on a wagon stand. For the settlement of this dispute a Jirga was convened but no compromise was made out. Resultantiy the present occurrence occurred. No other enmity exists between the parties. 3. After registration of the case, it was investigated by the police and found that all the accused participated in the alleged crime. Challan was prepared and sent to the Court for trial. After conclusion of the trial the learned Sessions Judge, Attock convicted the petitioner under Section 302 (b) PPC and sentenced him to life imprisonment, i-/r order dated 22.2.1994, The petitioner preferred appeal against that order before this Court. The said criminal appeal No. 28/94 is pending before tlr'i Court for adjudication. Meanwhile learned counsel for the petitioner has filed the present bail petition seeking bail for Rashid Ahmad appellant/petitioner. 4. Learned coansel for the petitioner seeks bail on the grounds that petitioner was convicted on 22.2.1994, against this order an appeal was preferred but it has not been decided so far; that statutory period has elapsed; that there is no likelihood to decide this appeal in near future; ..hat t is not a case of brutal murder because the said occurr&nce took place just after the Jirga; that ihis fact has been found true by the Trial Court and relies upon the following judgments;- 1. 1995 SCMR 1819 2. 1994 SCMR 480 3. 1984 SCMR 1166 4. 1991 SCMR 1459 5. 1986 SCMR 1970 6. 1983 P.Cr.L.J. 4. 7. 1994 P.Cr.L.J. 916 and 2359 5. Learned counsel for the petitioner by citing the aforesaid judgments contends that the statutory ground (period of two years) confers a right of the petitioner for grant of bail, falls under Section 426 (1-A) (c) Cr.P.C. At this stage, learned counsel for the petitioner admits that in some cases which are of very serious nature of brutal and cruel and the bail was refused by the High Court. He finally contends that every murder is not brutal. But in the present case no doubt that deceased suffered one injury and later on succumbed to that. He submits that the petitioner's case does not fall under the category of pre-planing and acted in the manner of extreme hateful. According to the site plan the occurrence took place at the road and the complainant party cannot claim that the occurrence took place at the place which was in their possession. 6. On the other hand, the bail petition has been opposed by the learned counsel for the state on the grounds that the occurrence took place on the land which is in possession of the complainant party; that the other party was aggressor; that the accused party came to the place of occurrence with the intention of committing murder; that the accused fired 5/6 shots but incidently the deceased has received only one shot, this shows the intention of the assailant/petitioner to commit the murder, learned counsel submits that after the expiry of two years almost every accused of the murder case is entitled to bail though it is not the intention of the legislator. He relies upon the precedent-1991 SCMR 1903. 7. I have hard the arguments of the learned counsel for the parties and perused the record. It is an admitted fact that more than two years have elapsed and the appeal is still pending. It is also admitted fact that there is no likelihood that the appeal will be heard in the near future. According to section 426 (1-A) (c) Cr.P.C. an appellate Court shall, unless for reason to be recorded in writing it otherwise directs, order a convicted person to be released on bail who has been sentenced to imprisonment for life and whose appeal has not been decided within a period of two years of his conviction. The intention of the legislator is very clear. In few words it can be said that (after the lapse of two years, the appellate Court shall suspend the sentence and release the convict on bail. It is discretion of the Court, keeping in view the facts and circumstances of the case to suspend or not suspend the conviction order. Much case-law was produced during the arguments and the ratio laid down by the Hon'ble Supreme Court of Pakistan in the matter. On perusal, most of the judgments in which bail was granted to the convict on the statutory ground and there are also some cases in which bail was denied on some grounds. Keeping in view the guide line given by the Hon'ble Supreme Court of Pakistan, I am of the view that in the cases of extra­ ordinary nature having the significance of brutal, extreme cruelty, rather the crime is of the nature which is not only detestable but throwing some light over the chequered character of the convict, his conduct and the motive to commit crime are the paramounts considerations for the refusal order. Here undoubtedly, it can be said that every case has its own facts and in the light of those, the bail is either to be refused or accepted. No definite principle can be laid down regarding which one can say that these are principles applicable in the cases for releasing the convict on statutory period. There are some other crimes which are though crimes and the society do dislike that but in such case suspension order can safely be passed as the adifice of justice will not be damages. For example a person murdered with one shot. After death his dead body is humiliated by the accused which make it extremely serious matter than a simple matter. In such like case, bail may be refused. 8. Without making much more comments about the facts and the circumstances of the case, the deceased died with one shot which is attributed to the present petitioner. For no fault of the petitioner, the appeal could not be taken up for hearing and statutory period of two years has elapsed. In these circumstances, the convictions of the petitioner is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum o£ Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Deputy Registrar of this Bench. (MAA) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1137 [ Multan Bench] Present: MUHAMMAD NASEEM, J. MANZOOR AHMAD-Appellant versus STATE-Respondent Crl. Misc. No. 1-96 in Crl. Appeal No. 4 of 1994 accepted on 16.4.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 426 (l-AXc)--Suspension of sentence-Case of--Bail-Grant of--On statutory ground-Offence U/Ss. 302/452/148/149 PPC-While disposing of an application U/S 426 (1-A) (c) Cr.P.C. merits have not to be considered and period of two years mentioned in Statute has to be given weight-A valuable right is acquired by appellant whose continuous period of detention after conviction has exceeded two years and whose appeal has not been disposed of—Held: Appellant has scored legal point and is entitled to derive legal benefit thereof-Appeal accepted. [P. 1138] A PLJ 1996 Cr.C. (Lah.) 93 and 1995 SCMR 1109 rel. Barrister Zameer Ahmad Khan, for Appellant. Mr. Muhammad Ibrahim Farooq, Advocate for State. Date of hearing: 16.4.1996. order Manzoor Ahmad applicant/appellant was booked at Police Station Saddar Arifwala, District Sahiwal (at present District Pakpattan Sharif) alongwith the six co-accused in crime case No. 192/93. After the submission of the challan in terms of section 173 Cr.P.C., the appellant/applicant alongwith the six co-accused was charged under sections 302, 452, 148/149 PPG. After fulfledged trial Manzoor Ahmad applicant was convicted and sentence on 23.2.1994 to life imprisonment under section 302 (b) PPC who was also convicted and sentenced to undergo R.I. for a period of two years and to fine of Rs. 5.000/- or in default of its payment to further undergo R.I for a period of six months under section 452 PPC. Both the sentences have to run concurrently. His co-accused were acquitted. Feeling aggrieved he filed ais appeal No. 40 on 7.-3.1994. Through the making of this petition he is desirous for the suspension of the sentence in terms of section 426 (l-A )fc ) Code of Criminal Procedure. 2. I have heard the learned counsel for Manzoor Ahmad petitioner/appellant as well as learned State counsel and gone through the record before me. ! am the author of the judgment printed as Muhammad Zahid vs. The State (PLJ 1996 Criminal Cases (Lahore) 93 Multan Bench) according to which a convict sentenced to life imprisonment whose detention period has exceeded two years and the appeal has not been disposed of has been held entitled for the suspension of sentence and his admission to bail. I have relied on the dictum enunciated inBarkat Hussain vs. The State (1995 SCMR 1109) while writing the aforesaid judgment which is applicable to the facts of the instant matter. I have to express that while disposing of an application under section 426 (l-A )( c) Cr.P.C the merits have not to be considered and the period of two years mentioned in the statute has to be given the weight on the basis of which a valuable right is acquired by an appellant whose continuous period of detention after his conviction has exceeded two years and whose appeal has not been disposed of by the Court. The fact of the matter is that till today the appeal preferred by this appellant has not been fixed for hearing and obviously the same has not been disposed of. In view of the aforesaid projection of the factual and legal aspects, I hold that Manzoor ALmad petitioner/appellant has scored the legal point and is entitled to derive the legal benefit thereof. Thus this petition merits to be accepted for the purposes of the suspension of sentence awarded to Manzoor Ahmad petitioner/appellant and his admission to bail. 3. I, therefore, accept this application, suspend the sentence awarded to Manzoor Ahmad appellant-convict and admit him to bail in the sum of Rs. 1,00,000/- (rupees one lac only) with one surely in the like amount to the satisfaction of the learned Addl. Sessions Judge, Arifwala (at present Pakpattan Sharif). After the attestation of bail bond etc. the learned Addl. Sessions Judge, Arifwala shall send all the relevant papers to the Deputy Registrar of this Court for addition to this file. 4. Copy dasti subject to payment of usual charges, if any. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1139 [ Multan Bench] Present: CH. KHURSHID AHMAD, J. MUHAMMAD RAMZAN-Appellant versus STATE-Respondent Crl. Misc. No. 618-B-1996 accepted on 24.4.1996. Criminal Procedure Code, 1898 <Act V of 1898)- —S. 426 (l-A)(c)--Suspension of sentence-Case of-Bail~Grant of-On statutory ground-Offence U/S. 302 PPC-Petitioner is a sick man and was in continuous detention for more than 2 years-He was accused of Qatt-i-amd of his wife and had off-spring from deceased-In view of Khalil-ur-Rehman us. Supreme Appellate Court and 4 others (PLD 1994 S.C. 885) petitioner could only be sentenced to a maximum period of 14 years for which statutory period was prescribed one year-Held: High Court see no reason for dismissal of application-Bail granted. [Pp. 1139&11403A&B Mian Rasheed Ahmad, Advocate, for Petitioner. Malik Abdul Hameed Khokhar, Advocate, for Stata. Date of hearing: 24.4.1996. order The petitioner was arrested in case FIR No. 56/94 registered at P.S. City Shujabad on 11.2.1994 u/s 302 PPC on the basis of statement made by Fiaz Bukhsh. He was arrested on 11.2.1994 and this petition has been filed for seeking relief of bail on statutory ground i.e. the petitioner being in continuous detention for more than 2 years and the case against, the petitioner has not been concluded by the trial Court. 2. In the present case the petitioner was also found to be suffering from T.B. and bail on medical ground was also pressed. 3. Learned counsel for the complainant has submitted that the delay ~~~ in the conclusion of trial was caused by the petitioner himself and the prosecution cannot be blamed for that. 4. Be that as it may, the petitioner is a sick man and was in continuous detention for more than 2 years. He was accused of Qatl-i-amd of his wife and the petitioner had off spring from the deceaseds. In view of Khalil-ur-Rehman versus Supreme Appellate Court and 4 others (PLD 1994 S.C. 885) the petitioner could only be sentenced to a maximum period of 14 years for which the statutory period prescribed was one year. 5. I see no reason for dismissal of the application in the circumstances mentioned above. 6. The petition is allowed and the petitioner shall be released subject to his furnishing bail bonds in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Trial Court. 7. Copy Dasti on payment of usual cost. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1140 [ Multan Bench] Present: muhammad naseem, J. FARID BUKHSH-Petitioner versus ALLAH BAKHSH and STATE-Respondents Cr. Misc. No. 350-CB-1996 accepted on 18.4.1996. (i) Bail Cancellation of-- —-S. 497 Cr.P.C.-Bail-Cancellation of~Bail granted on statutory ground due to continuous detention for over a period of two years from date of arrest-Offence U/Ss. 302/440/324/184/353 PPC--Case was not being processed with all seriousness by Presiding Officer and delay was also caused by Respondent/accused because he obtained many adjournments to engage some Advocate for defence and on some dates counsel did not appear-Held: Discretion on statutory ground cannot be exercised in favour of accused person especially when he was also responsible for causing delay-Bail cancelled. [P. 1142 & 1143] A (ii) Bail Cancellation of-- —S. 497 Cr.P.C.-Bail-Cancellation of--Bail granted on statutory ground due to continuous detention for over a period of two years from date of arrest-Offence U/Ss. 302/440/324/186/353 PPC--He went to sacred precincts of Sessions Court where justice is administered to litigant public-He went to chamber of Advocate and within his sight as well as other PWs took law in his hands and fired at deceased-Occurrence took place in broad-day light-Taking law in hands in Sessions Court's premises can be effected by a desperate person-As such according to proviso IV to sub-section (1) of section 497 Cr.P.C. petitioner can well be termed as desperate criminal and even after lapse of statutory period of two years ftom date of his arrest he was not entitled to bail-Bail cancelled. [P. 1143] B Sardar Faiz Muhammad Khan Khosa, Advocate, for Petitioner/Complainant. Sh. Muhammad Rahim, Advocate, for State. Sardar Altaf Hussain Khan, Advocate, for Respondent/Accused. Date of hearing: 18.4.1996. order Farid Bakhsh complainant got recorded FIR No. 136 dated 20.10.1993 at Police Station City Rajanpur under section 324 PPC wherein he narrated that Eisa (deceased of this case) was challaned in the murder case of Goorha son of Mitha, Caste Khosa on ".he basis of the occurrence which took place about 11 months before. Eisa was admitted to bail. Allah Bakhsh petitioner-accused son of Mitha, a real brother of Goorha deceased of the aforesaid case, was annoyed and nursed the grudge. On 20.10.1993 Eisa deceased of this case went to Sessions Court, Rajanpur alongwith Farid Bakhsh complainant. Muhammad Bakhsh and Rasool Bakhsh, relatives of Eisa deceased, had also arrived. At about 8.45 a.m. they were sitting on the business place of Rap Muhammad Siddique, Advocate. Allah Bakhsh accused arrived there while armed with a pistol who raised the lalkara. He fired at Eisa which hit his back. The aforesaid persons saw the occurrence. The respondent-accused did not let them go close to the place Eisa was present. The police officials namely Muhammad Ramzan Constable, Gulzar Ahmad Constable, Abid Hussain Constable, Muhammad Suleman Constable and Abdul Qadir Steno caught hold of Allah Bakhsh alongwith the pistol. Rao Muhammad Siddique, Advocate and others also saw the occurrence. 2. As expressed above, Allah Bakhsh accused-respondent was arrested at the spot. Eisa expired afterwards and section 324 PPC has been substituted by sections 302, 440 PPC. Afterwards the challan for the prosecution of Allah Bakhsh under sections 302/440, 324/186/353 PPC has been submitted. 3. Allah Bakhsh respondent-accused filed his application for his admission to bail which was dismissed on merits on 27.2.1995 by the then Sessions Judge, Rajanpur. However, he filed his application afresh on 9.1.1996 for his admission to bail on statutory ground due to his continuous detention for over a period of two years from the date of his arrest. The present Sessions Judge gave his opinion that the trial against the accused had not yet commenced and that due to the lapse of a period of two years he had become entitled to be released on bail as of right under proviso III to sub-section (1) of section 497 Cr.P.C. Feeling aggrieved Farid Bakhsh petitioner-complainant filed this petition on 2.2.1996 for the cancellation of the bail. 4. I have heard the learned counsel for the parties as well as learned State counsel and gone through the record before me. Learned counsel for Farid Bakhsh petitioner-complainant argued that the petitioner was responsible for delay whereby the trial could not commence as he did not engage his learned counsel from the beginning and after the lapse of some dates he intimated the Court that he desired to engage his learned counsel. He added chat the case was not being taken seriously by the trial Court. He expressed the opinion that the respondent could be termed as a desperate criminal as he went to the precincts of Sessions Court, Rajanpur who took the law in his hands and fired at Eisa deceased while he was sitting in the chamber of Rao Muhammad Siddique, Advocate, Rajanpur. He maintained that the discretion should have not been used in favour of the respondent in the circumstances. The learned counsel for the State supported the learned counsel for the petitioner-complainant. Learned counsel for Allah Bakhsh respondent-accused argued that the delay in the matter of commencement of the trial cannot be attributed to the respondent-accused who obtained some dates and that on many dates the trial Court was on leave. He added that the discretion has rightly been used in favour of Allah Bakhsh respondentaccused especially when he is neither hardened nor desperate c • dangerous criminal as no other case of the instant nature stands registered against him and his mind was brewing simply due to the reason that his real brother was murdered by Eisa deceased of this case. After giving my serious and anxious consideration to the matter in hand I am of the view that the learned Sessions Judge, Rajanpur has admitted Allah Bakhsh respondent-accused to bail without any legal justification. A perusal of the interlocutory orders passed by the trial Court has made out that the trial is being conducted in a perfunctory manner. I am tempted to express that sessions trials should be given seriousness which they deserve. In the instant matter learned Sessions Judge, Rajanpur remained on leave on 25.5.1994, 4.7.1994, 31.1.1995, 25.4.1995, 29.5.1995, 22.8.1995, 14.9.1995 and 17.10.1995. On 9.1.1995 the accused request for adjournment to engage some learned counsel. Same was the position on 24.1.1995. On 15.2.1995 Allah Bakhsh accused intimated the Court that he had not engaged any learned counsel. On 7.3.1995 the accused intimated the Court that he had engaged the learned Advocate who shall appear on the next date. On 8.5.1995 learned counsel for the accused was not present. Same was the position on 13.6.1995. The adjournment was granted on 12.7.1995 due to the absence of the learned defence counsel. The resume of the proceedings projected above have made out that the prosecution is not responsible for causing the delay in the final disposal of the case. I am aware that there is the common saying that an accused is a favourite child of law. However, at the same time I hold the view that a complainant is also not devoid of the justice of the Court keeping in view the shape of scale of justice, i The case was not being processed with all the seriousness by the Presiding Officer and the delay was also caused by Allah Bakhsh respondent because he obtained many adjournments to engage some learned Advocate for his defence and on some dates bis learned counsel did not appear. In the circumstances, the lapse of the period of two years is no ground for the I admission of this petitioner to bail on the statutory ground. If a Presiding Officer has loose control and does not show the seriousness towards the disposal of the sessions case/trial as was in the recent past good days; I must express my view that the discretion on the aforesaid statutory ground cannot be exercised in favour of the accused person especially when he was also responsible for causing the delay as in the instant matter. No doubt the brother of Allah Bakhsh respondent-accused was allegedly murdered by Eisa deceased of this case and his mind must be brewing and he himself be feeling disturbed; yet this aspect of the matter is not enough to use the discretion in favour of the respondent-accused as the same is the motive for the occurrence. 5. Technically and legally speaking due to the registration of the case Allah Bakhsh respondent-accused is a criminal person at present unless he is acquitted. He may be an innocent person unless he is convicted, but in the circumstances of the instant matter he can well be termed as a desperate criminal. He went to the sacred precincts of Sessions Court where justice is administered to the litigant public. He went to the chamber of Rao Muhammad Siddique, Advocate, Rajanpur and within his sight as well as the other PWs took the law in his hands and fired at Eisa deceased. Rao Muhammad Siddique, Advocate had the licence to practise. The occurrence took place in broad day light in Sessions Court premises at 8.45 a.m. on 20.10.1993. The taking of law in his hands in Sessions Courts' premises can be effected by a desperate person. As such according to proviso IV to sub­ section (1) of section 497 Cr.P.C. the petitioner can well be termed as a desperate criminal and even after the lapse of statutory period of two years from the date of his arrest he was not entitled to be admitted to bail. The present position is that two PWs have been examined by the Sessions Judge Rajanpur which means that the trial has been started. 6. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that Allah Bakhsh respondent-accused was not entitled to be admitted to bail and the discretion used in his favour by the learned Sessions Judge, Rajanpur was simply unjustified. Consequently I accept this application, set-aside the impugned order dated 29.1.1996, dismiss the application filed by Allah Bakhsh respondent-accused for his admission to bail and cancel his baiL Allah Bakhsh respondent-accused has been put under the custody of the Naib Court for handing over to the guard posted in Lahore High Court, Multan Bench, Multan to be sent to District Jail, Rajanpur with the direction to produce him before the learned Sessions Judge, Rajanpur on 6.5.1996. 7. The learned Sessions Judge, Rajanpur is directed to conduct the trial of the case with all the seriousness and to dispose of the same till 30.6.1996 under intimation to the Additional Registrar of this Court (K.K.F.) Bail cancelled.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1145 [ Bahawalpur Bench] Present: MUHAMMAD NASEEM, J. MUHAMMAD ISMAIL alias BABOO-Petitioner versus STATE-Respondent Crl. Misc. No. 467/B-1995 (BWP) dismissed on 16.7.1995 Bail and Jurisdiction-- —Offence U/Ss. 302/460/459/379 PPC~Bail~Grant of-Prayer for-Bail plea,has been rejected by Sessions Court with reasoning that due to use of kalashinkov, case is to be heard by Judge Special Court for Suppression of Terrorist Activities-Contention that mere narration that kalashinkov was used during occurrence is not enough especially when kalashinkov has not been recovered—High Court is of the view that narration of fact that kalashinkov was used in occurrence from which firing was effected to steal eminence irrespective of fact that kalashinkov was not recovered during investigation—Case shall have to be heard by Special Court constituted under Suppression of Terrorist Activities (Special Court) Act 1975-According to Rule 14 chapter 10 of High Court Rules and orders Volume III in judicial hierarchy bail application has to be filed before court of lowest grade-Petitioner has not moved special Court constituted under Suppression of Terrorist Activities (Special Court) Act 1975 for his admission to bail and dismissal of his application by Addl. Sessions Judge would not confer upon him right to move High Court-Held: Petitioner may proceed in accordance with kw before court of competent jurisdiction-Petition dismissed. [Pp. 1146 & 114" A, B & C Rana Muhammad Yaqoob, Advocate, for Petitioner. Date of hearing: 16.7.1995. order The petitioner is the accused of case FIR No. 286 dated £I.11."?92 registered at Police Station Sadar Ahmadpur East Uisfict Bihawalpur under Sections 302/460/459/397 PPG. According to the prosecution case on 21.11.1992 at 8.00 P.M. two accused persons whose description js mentioned in the F.I.R. took away the gold ornaments and cash amount of Rs. ILOOu, - from the house of Mehdi Hassan uncle of Muhammad Saleem complainant. Mehdi Hassan came out of his house when both the persons opened £re at him. Many bullets hit who subsequently succumbed to his injuries During the occurrence Karim Bakhsh was also injured due to the firing effected by the accused persons. It is mentioned in the F.I.R. that one person was armed with kalashinkov while the other was armed with carbine. MuLasunad Ismail alias Babu petitioner has been arrested as one of the accused whose « i bail plea has been rejected by the lower Court with the reasoning that the case is to be heard by the Judge Special Court for Suppression of Terrorist Activities. Hence this petition. 2. About the jurisdiction of the lower court to entertain the bail application I had asked the learned counsel for the petitioner to argue the matter as the kalashinkov is allegedly used during the occurrence by one of the accused. According to him mere narration that the kalashinkov was used during the occurrence is not enough especially when kalashinkov has not been recovered. My view is that the narration of the fact that kalashintov was used in the occurrence from which the firing was effected has to steal the eminence irrespective of the fact that the kalashinkov was not recovered during the investigation. The result is that the case shall have to be heard by the Special Court constituted under the Suppression of Terrorist Activities ( Special Court ) Act, 1975. This being the position the application for the grant of bail shall have to be moved before the said Special Court . According to Rule 14 Chapter 10 of High Court Rules and Orders Volume ffl in the judicial hierarchy the bail application has to be filed before the court of lowest grade. The petitioner has not moved the Special Court constituted under the Suppression of Terrorist Activities ( Special Court ) Act, 1975 for his admission to bail and the dismissal of his application by the Additional Sessions Judge would not confer upon him the right to move the High Court. 3. For what has been said above, I dismiss this petition without merits. First the petitioner may proceed in accordance with law before the court of competent jurisdiction, as expressed above. (K.K.F.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C . ( Lahore ) 1151 [ Multau Bench] Present: SYED ZAHID HUSAIN BoKHARI , J. MURID HUSSAIN and 3 others-Petitioners versus STATE-Respondent Crl . Misc. No. 199-B-1996 partly accepted on 27.3.1996. Bail- —-S. 497 Cr.P.C .-Bail--Grant of-Prayer for--Offence U/Ss. 302/337-F ( i )/337-F(ii)/148/149 PPC--Petitioners were named in promptly registered F.I.R. with a specific role of causing injuries to deceased-­Nature of injuries, specifically attributed to petitioners, was such that it could not result into death of deceased and therefore prime facie they were liable to commit Qatl-shibh-i-amd punishable U/S. 316 PPG which falls within prohibitory clause of section 497 Cr.P.C .-There appear reasonable grounds for believing that petitioners have been guilty of offence punishable with imprisonment for 10 years or more-Bail petition to extent of Murid Hussain and Wahid Bakhsh is rejected-Case of petitioner Raiz Ahmad is slightly different-In F.I.R. parentage of petitioner Riaz Ahmed is narrated as Jawanak --As a matter of fact petitioner Riaz Ahmad is son of Khuda Bukhsh -It was not contradicted before Court that Murid Hussain and Wahid Bukhsh petitioners have no brother named Riaz Ahmad-Participation of petitioner Riaz Ahmad becomes doubtful-Doubt, even if arises at stage of bail, is to be resolved in favour of accused/petitioner which entitles him to grant of bail-Held: Bail granted to extent of petitioner Riaz Ahmad only-Bail granted. [P. 1153 & 1154] A & B 1984 SCMR 429 and 521 rel . Sardar LatifKhan Khosa , Advocate, for Petitioners. Malik Muhammad Saleem , Advocate, for Complainant. Mr. S.M. Rasheed , Advocate, for State. Date of hearing: 27.3.1996. ojhxeb Murid Hussain , Wahid Bakhsh , Riaz Ahmad and Ghulam Farid petitioners prayed for the grant of bail after arrest in case FIR No. 39/95 dated 12.2.1995 of P.S. Kot Chhutta , district D.G. Khan under sections 302, 337-F ( i ) 337-F (ii), 148/149 PPG registered on the statement of Ghulam Haider for an occurrence which took place on 12.2.1995 at 11 a.m., in the area of village Mana Ahmadani situated at a distance of 6 miles from the police station. 2. According to the prosecution version narrated in the FIR, petitioners and their co-accused Piyara armed with Solas came to the land of the complainant where complainant and his brother Allah Wasaya were collecting wood from the land. The accused started abusing Allah Wasaya and caused 17 injuries on different parts of his body. The alleged motive of occurrence was that Allah Wasaya used to cultivate the land on lease owned by refugees of Notak Hameed which was contiguous to the land of the accused who intended to take possession of the said land. They had many a times quarrelled with each other on that account. 3. Allay Wasaya was admitted in the hospital in injured condition, where he scummed to injuries on 14.2.1995 and the offence under section 302 PPG was consequently added. 4. Learned counsel for the petitioners argued that the motive alleged is not supported from any circumstance because, according to the learned counsel, no civil or criminal proceedings were initiated between the parties and that the petitioners have been attributed simple injuries with blunt weapon which were not the cause of death; that the occurrence took place at spur of the moment without pre-meditation and the petitioners had no intention to commit the murder and at the most they can be held responsible for causing simple injuries; that in the post mortem report injury No. 15 was found fatal and sufficient to cause the death and this injury has not specifically been attributed to any of the petitioners and question of application of section 34 PPG shall be determined at the trial and till then case of the petitioners requires further inquiry as envisaged under section 497(2) Cr.P.C . Lastly it was argued that in the FIR, Riaz Ahmad son of Jawanak brother of Murid Hussain and Wahid Bakhsh petitioners, was named as accused but during the investigation Riaz petitioner was involved mala fide. 5. Learned counsel for the complainant and the State have vehemently opposed the application and argued that the petitioners gave merciless beating to Allah Wasaya deceased; that number of accused commensurate with number of injuries; that the occurrence took place in the broad day light and there was no question of mistaken identity. Further argued that during the investigation blood stained Solas , weapon of offence, were recovered at the pointation of all the accused/petitioners; that the report of Chemical Examiner and the Serologist show that Sotas were stained with human blood. Lastly, it was argued that even if the contentions of the learned counsel for the petitioners are admitted true, the offence would fall under section 315 PPG which falls within the prohibitory clause of Sec. 497 Cr.P.C . 6. I have heard learned counsel for the parties and gone through the record and considered the arguments of the parties with care. 7. It is true that the petitioners have not ben specifically burdened with the allegation of causing injury i.e. injury No. 15 to the deceased and the injuries caused by them were found simple in nature. Learned petitioners counsel in order to establish that petitioners had no intention to cause death of Allah Wasaya -deceased: Relied upon PLD 1972 S.C. 277, 1985 SCMR 565, 1986 P.Cr.L.J 2585, 1983 P.Cr.KJ . 1558 and NLR 1984 S.C.J. 166. I am afraid the contention of the learned counsel is misconceived and the authorities relied upon are not applicable to the present case as radical change has taken place by the incorporation of Sec. 315 PPC as amended by Crl . Law (Second Amendment) Ordinance (XII) 1993, S. 7(1) which read as :- Sec. 315 PPC Whoever, with intent to cause harm to the body or mind of any person, causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-amd ." . The proposition under consideration is also elucidated vide illustration:- "A in order to cause hurt strikes Z with a stick or stone which in the ordinary course of nature is not likely to cause death. Z dies as a result of such hurt. A shall be guilty of Qatl Shibh-i-amd ." The petitioners gave Sota blows to Allah Wasaya deceased and caused injuries which prima facie do not show that the petitioners had any intention to cause death of Allah Wasaya and they had only the intention to cause harm to his body. The petitioners repeated the blows and prima facie offence would fall under section 315 PPC, which is punishable under section 361 which provides that:- Sec: 316 PPC Whoever commits qatl Shibh-i-amd shall be liable to diyyat and may also be punished with imprisonment of either description for a term which may extend to fourteen years as tazir ." 8. The petitioners were named in the promptly registered FIR with a specific role of causing injuries to the deceased. The nature of injuries, specifically attributed to the petitioners, was such that it could not result into the death of the deceased and therefore prima facie they were liable to commit Qatl-Shibh-i-amd punishable under section 316 PPC which falls within the prohibitory clause of Section 497 Cr.P.C . There appear reasonable grounds for believing that the petitioners have been guilty of the offence punishable with imprisonment for 10 years or more, hence bail petition to the extent of Murid Hussain and Wahid Bakhsh is rejected. 9. The case of Riaz Ahmad petitioner is slightly different because in the FIR parentage of Riaz Ahmad petitioner/accused is narrated as Jawanak . As a matter of fact petitioner Riaz Ahmad is son of Khuda Bakhsh . It was not contradicted before the Court that Murid Hussain and Wahid Bakhsh petitioners have no brother named Riaz Ahmad. In this view of the matter, the participation of the petitioner Riaz Ahmad becomes doubtful and it has been held in 1984 SCMR 429 and 521 that doubt, even if arises at the stage of bail, is to be resolved in favour of the accused/petitioner, which entitles him to the grant of bail. 10. For what has been stated above, the petition iuj _; ,c guiiii u oaii to the extent of Riaz Ahmad s/o Khuda Bakhsh is accepted. lie ; s dr : octed to be released on bail provided he furnishes bail bond in rhe .sum of Rs . 1,00,000/- (One lac ) with two sureties each in the like amount to the satisfaction of Sessions Judge/Trial Court D.G. Khan. The prayer of Murid Hussain and Wahid Bakhsh is refused. The observations made in this order, are tentative in nature and shall have no bearing upon the facts of the case at the stage of trial. The Trial Court shall form its own opinion on ths basis of evidence produced by the parties during the trial. 11. This petition is disposed of in the above terms. (K.K.F.) Petition partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1157 [DB] [Rawalpindi Bench] Present: sajjad ahmad sipra and raja muhammad khurshid, JJ. GHULAM HUSSAIN and 5 others-Appellants Versus STATE-Respondent Criminal Appeal No. 827 of 1991, and Murder Reference No. 389/1991 decided on 18.2.1996. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302/307/148/149-Conviction for--Challenge to-Appraisal of evidence? -Eye-witnesses not only related to deceased but related inter-se also-- Complainant real brother of deceased giving un-truthful and self contradictory account-Original F.I.R. substituted with second one-In original F.I.R. fire arm injuries attributed-Parties having inimical background-Medical evidence inconsistent with ocular evidence-­ Prosecution trying to remove inherent flaws of case after having looked Medical evidence-As alleged, Appellants/acquitted co-accused were armed with gun, rifle, hatchets, waholi and soties but neither using fire Arm nor sharp side of hatchets-Recoveries rightly not believed by trial • Court-Investigation was un-wholesome, not conducted on scientific lines but pick and choose method adopted-Prosecution versten remained un­ substantiated regarding motive alleged in F.I.R.-Prosecution failed to prove its case beyond reasonable doubt-Appeal accepted. [Pp. 1161, 1163 to 1167] A, C, D, E, F, G, H, L, J) Criminal Trial- —Documentary proof—People may tell lie but the documents will never. [P. 1184] B Mr. IjazHussain Bataliv and AkhtarAli, Advocates, for Appellants. SyedAli Raza, Advocate for A.G. for the State. Dates of hearing: 12.2.1996,13.2.1996,14.2.1996 & 18.2.1996. judgment R.M. Khurshid, J.--The appellants and two others namely Muhammad Qasim and Suba Khan were arraigned under sections 302/307/148/149 PPC for the murder of Sher Khan son of Dost Muhammad. 2. The appellants were convicted and sentenced to various terms by S.M. Waqar-ul-Hassan Shah Bokhari, learned Additional Sessions Judge, Chakwal vide his judgment dated 15.8.1991. The appellant Noor Hussain was convicted under section 302 PPC and sentenced to death and a fine of Rs. 10,000/- or in default to suffer one year's R.I. The fine if recovered was to be paid to the legal heirs of the deceased. The aforesaid appellant namely Noor Hussain and Sardar Khan were also convicted under section 324 PPC and sentenced to two years R.I and a fine of Rs. 1,000/- or in default to suffer 6 months R.I. The appellant Itibar Khan, Fateh Muhammad and Nawab Khan were convicted under section 323 PPC and sentenced to 9 months R.I each and a fine of Rs. 1,000/- each or in default to suffer three months R.I. The fine if recovered, was to be paid to the injured PWs namely Muhammad Nawaz and Samundar Khan. The appellants Fateh Muhammad. Ghulam Hussain and Nawab Khan were convicted under section 143 PPC and sentenced to one year R.I each and a fine of Rs. 1,OOG/- each or in default to suffer three months R.I. The appellant Itibar Khan was convicted under the aforesaid section and sentenced to \ years R.I and a fine of Rs. 1,500/- or in default to suffer 6 months R.I. The appellants Noor Hussain and Sardar Khan aforesaid were convicted under the aforesaid section and sentenced to 2 years R.I each and a fine of Rs. 2,000/- each or in default to suffer 6 months R.I. The fine if recovered was to be paid to Muhammad Nawaz and Samundar Khan in the ratio of 2/3 and l/3rd respectively. All the sentences were directed to run consecutively. The benefit of section 3S2-B Cr.P.C. was also extended to all the convicts. The learned Additional Sessions Judge acquitted Muhammad Qasim and Suba Khan after giving them the benefit of doubt vide the same judgment. 3. Murder Reference No. 389/91 was made by tie learned Additional Sessions Judge for the confirmation of death sentence awarded to Noor Hussain appellant. Likewise criminal revision No. 146/91 was Eled by Muhammad Nawaz complainant against acquittal of Muhammad Qasim and Suba Khan with a prayer that they alongwith other appellants namely Itibar Khan, Sardar Khan, Fateh Muhammad, Nawab Khan and Ghulam Hussain be convicted and sentenced under section 302/307/148/149 PPC. Both these matters will be decided vide this judgment. 4. The brief facts are that FIR Ex. PR was lodged by Mohammad Nawaz PW-11 at Police Station, Tomman District Chakwal on 11.5.19S7 at 1.00 PM for an occurrence, which took place on the same day at 7.00 AM in which the deceased was done to death. According to FIR, the complainant was resident of Dhoke Phali and was working as Rig-man in Toot Oil Field. He was on leave and was proceeding to join duty alongwith Sher Khan deceased who was also employed as Store Keeper in the same company. The deceased had reached at Toot Oil Field No. 1 at about 7.00 AM on the unfortunate day to take up the duty. The complainant also reached there and saw the accused namely Ghulam Hussain armed with rifle, Noor Hussain armed with hatchet, Suba Khan with 12 bore gun, Itibar Khan with Waholi, Sardar Khan with hatchet, Muhammad Qasim with hatchet, Fateh Muhammad and Nawab Khan both armed with soties at the place of occurrence. All of them were sitting in ambush and raised lalkara on seeing Sher Khan deceased. Out of them Ghulam Hussain and Suba Khan aimed heir rifle and gun respectively at the deceased and shouted that if some body tried to intervene, he will be killed. Thereafter Noor Hussain appellant/accused gave a hatchet blow from its sharp side on the head of the deceased. The appellants Sardar Khan and Muhammad Qasim (acquitted) also gave hatchet blows on the head of the deceased, whereupon the latter fell down. On seeing this the complainant rushed to that side and when he reached near his deceased brother, he was also attacked by Fateh Muhammad with his Soti and injured the right side of his head. Nawab Khan, Itibar Khan and Fateh Muhammad also gave soti blows and Waholi blows respectively to the complainant thereby injuring his right arm and legs. The complainant raised hue and cry which attracted Samundai Khan PW-12 and others namely Irshad Ahmad, Muhammad Khan and Khan Muhammad who were present near by and had allegedly seen the occurrence. The accused Ghulam Hussain and Suba Khan aimed their iifles whereupon no body intervened out of fear. However, Samunaar Khan PW went forward, but was injured by Fateh Muhammad and Nawab Khan by giving him soti blows. Ghulam Hussain gave but blows of his rifle to Muhammad Khan thereby causing him injury. Thereafter Noor Hussain and Itibar Khan gave blows to the deceased after he had fallen down with their respective weapons from its wrong as well as sharp side. 5. The motive for the occurrence was the suspicion entertained by Ghulam Hussain that the deceased had illicit relations with his daughter Mst. Malkani and on account of that suspicion Ghulam Hussain with the help of Niaz Gut and Muzaffar Khan gave soti blows to the deceased on 10.5.1^87 but they did not succeeded to take his life on that date. In pursuance of the same occurrence the present occurrence was committed on the next following day i.e. 11.5.1987. 6. The prosecution examined two eye witnesses namely Muhammad Nawaz complainant as PW-11 and Samundar Khan and injured PW as PW- 12 respectively. The remaining witnesses namely Irshad Ahmad, Muhammad Khan and Khan Muhammad were given up on the plea that they have been won over. The accused were arrested on 16.5.1987. The blood stained earth was recovered from spot on 11.5.1987 vide memo Ex. P. V. Noor Hussain accused led to the recovery of blood stained hatchet P-4 vide memo Ex. P-E on 25.5.1987 from his residence in the presence of Muhammad Aslam and Muhammad Ashiq PWs Ghulam Hussain led to the recovery of rifle 303 bore alongwith two rounds vide memo Ex. PK on 5.7.1987 from his residence. The blood stained waholi was got recovered by Itibar Khan vide memo Ex. PG. Likewise Sardar Khan got recovered blood stained hatchet P-5 vide memo Ex. PF from a residential room of his house, The son P-9 v was got recovered by Fateh Muhammad accused vide memo Ex. PJ while Nawab Khan led to the recovery of blood stained soti P-8 vide memo Ex. PI. 7. The medical evidence consisted of statement of Dr. Awais Ahmad Butta (PW-10), who conducted the post mortem examination upon the deceased and found 11 injuries on his person. The detail of injuries is given in the post mortem report Ex. P-M. All the injuries were found to have been inflicted with blunt weapon. Injury No. 1 was considered dangerous to Me and was sufficient to cause death in the ordinary course of nature. Injuries Nos. 4 and 8 were held to be grievous and the remaining were found to be simple. The same doctor had prepared the Medico Legal Report Ex. P-N in respect of Muhammad Nawaz complainant/PW. He had found 8 injuries on his person out of which injury No. 4 was grievous and remaining were stated to be simple. The same doctor had examined Samundar Khan and had found that there were three injuries on his person vide Medico Legal Report Ex. P.O. and that all the injuries were inflected with blunt weapon. 8. <Dr. Tahir Aziz Radiologist was examined as PW-14 to show that there was fracture of right scapula of Muhammad Nawaz PW. However, no bony injury was seen in vault of the skull and ribs. His report Ex. P/Z was brought on record being in his hand and signed by him. Ex-ray films Ex. PZ/1 to Ex: PZ/6 relating to aforesaid Muhammad Nawaz were also brought on record. During the cross-examination a question was put to the Radiologist, to which he answered that he examined the right arm of Noor Hussain accused present in the court. The Radiologist stated that the right below of the aforesaid accused appeared to be deformed. He however, added that he was not an expert in that field so as to say whether Noor Hussain could lift up his arm beyond 10/15/20 degrees. After examining some formal witnesses and after putting the Investigating Officer in the witness box, the prosecution closed its case. 9. The accused were examined under section 342 Cr.P.C. Ghulam Hussain accused/appellant whose statement was adopted by all his coaccused stated that all of them were falsely implicated in this case due to previous enmity and suspicion. They put up a counter story that the deceased and the injured PW used to block the way leading to ODGC premises to extract money from the company officers. On he day of occurrence, they alongwith some persons blocked the passage whereupon a fight ensued between them and the company employee who tried to enter the company premises. All of them, therefore claimed to be innocent. None of the accused except Suba Khan led the defence evidence. Apart from him Noor Hussain accused took up the plea that he was unable to wield any weapon on account of his defective arm and examined Dr. Syed Farrukh Habib' Sadiq Shah Orthopaedic Surgeon as DW-1. Noor Hussain son of Maqsood Ali was also examined to produce certified copies of some letters. uhammad Ashraf Head Constable was examined as CW-1 in respect of FIR Ex. DD to show that original FIR was substituted as according to the original FIR Suba Khan and Ghulam Hussain had allegedly fired from their respective gun and rifle causing injury to the head of the deceased. 10. We have heard the learned counsel for the parties. It is to seei. if the prosecution has been succesrful to prove its case beyond reasonable doubt. 11. The learned counsel for the appellants assailed the testimony of the eye witnesses on the ground that they were related inter se and also to the deceased. 12. Secondly they were not only related but were also interested and inimical to the appellants/accused as there existed history of enmity since 1985 over the outraging of modesty of Mst. Malkani a sister of the complainant and the deceased. The witnesses of recovery were also related to the complainant side and as such interested to involve the accused falsely in this case. It is for that reason that the recoveries were not even believed by the learned trial court. It was stated that medical evidence was also inconsistent with the version given by the eye witnesses and almost incredible because admittedly the accused party wanted to finish Sher Khan but they used wrong side i.e. blunt side of hatchet and Waholi and did not use the firearm to accomplish the job. It was, therefore, urged that the prosecution story was inhibited by intrinsic doubt and on such doubtful testimony the conviction could not be based without some sort of orroboration of truthful order. A reference was also made to the statement of CW-1 Muhammad Ashraf Head Constable who had prepared Ex; DD as correct copy of the original FIR No. 33 dated 11.5.1987 relating to this occurrence and found affixed in the register of FIR of Police Station, Taman. A perusal of Ex. DD would show that Ghulam Hussain and Sub Khan while armed with rifle and gun respectively aimed at the deceased Sher Khan after raising lalkara and fired in his head. However, according to CW there was a clerical addition though this did not exist in the original FIR. The explanation in this context was given by the Head Constable that he was writing while a constable sitting with him was reading out the FIR. According to the Head Constable the firing shown in the Ex: DD was not found in the original FIR and that it was a clerical mistake as he did not compare it with the original. 13. The learned counsel for the appellants however, assailed the testimony of this witness on this aspect on the ground that it was not a clerical omission, but was a truth which even perforated out of the tight-lips of complainant Muhammad Nawaz, who during the cross-examination admitted that he had stated before the police that Suba Khan and Ghulam Hussian accused aimed with their respective weapons and fired at his brother which hit him on his head. It was, therefore, submitted by the learned counsel for the appellants that the people may tell lie but the B documents will never. As such it was contended that CW-I tired to suppress the truth but the same came out like a flash during the cross-examination of the complainant namely Muhammad Nawaz, who is admittedly a brother of the deceased. The learned counsel for the appellants therefore, assailed the very basis of the case on which the whole story of the prosecution was concocted and wrongly built up. In this context, the learned counsel added that in fact the FIR was the result of due deliberations and consultations by he complainant side. The local police had concocted the present story on seeing the medical evidence, which disclosed that all the injuries were inflected with blunt weapon and none was caused with any firearm on the person of the deceased or to any of the PWs. .14. The learned counsel for the appellants further assailed the prosecution story on the ground that recoveries were not of any use in the present case as those were also based on the tainted evidence which was not only interested but inimical to the accused side and closely related to the complainant, side. As such no tainted evidence could be used to support an other tainted evidence and as such was rightly disbelieved by the learned trial judge. However, it was submitted by the learned counsel for the appellants that the learned trial Judge fell in error to use the same type of tainted evidence to convict the present appellants, which he had disbelieved qua the acquitted accused namely Muhammad Qasim & Suba Khan. It was particular so because no line of distinction could be successfully drawn between the acquitted accused and the convicted accused as evidence against both sets was of the same nature and quality. 15. It is urged that the medical evidence was not only inconsistent but was also self destructive because according to the FIR and the eye witnesses three persons had given blows on the head of the deceased, but only two injuries were found according to the Medico Legal Report It was, therefore, not clear as to which injury was ascribed to which accused particularly when one of the assailants namely Muhammad Qasim was acquitted. The learned trial court while acquitting the aforesaid Muhammad Qasim and Suba Khan had made observation that they were innocent and were wrongly implicated. After such a positive finding, the whole evidence of the prosecution against all the accused had become doubtful and could not be deployed to make the conviction of the appellants. Reliance in this regard was made on PLD 1959 SC 109, NLR 1982 Criminal 291 SC, 1984 SCMR 190 and 1984 SCMR 485 to sustain the above contentions. According to the learned counsel for the appellants, the story of motive remained doubtful. No direct evidence was produced to show that on a day before the unfortunate occurrence, the deceased was attacked by Ghulam Hussain and two other persons nor the said occurrence was substantiated by producing any medical evidence, to that effect. It was, therefore, contended that the motive was only created and in fact no such occurrence had ever taken place so as to lend any credibility to the prosecution version. 16. In view of the aforesaid situation, the defence story seems to be convincing and highly reasonable that the complainant and the deceased acted as emagogues in OGDC, and used to block the way of the workers employed in the company in order to extract money from them. On the day of occurrence they behaved in the same fashion which resulted into the occurrence in which the deceased had to lose his life. Taking the advantage of the situation, the complainant side cooked up the story to implicate their old enemies to settle their account of the past inimical events which kept them boiling throughout. 17. Lastly it was contended that the prosecution case was highly doubtful, in that Noor Hussain appellant was incapacitated to use his arm so as to inflict serious blow which may result into the death of the deceased, as his arm was not strong enough to move freely to cause such a heavy blow. However, it was unfortunate that evidence to that effect was shut out as was done in the case of DW-2. The learned counsel for the complainant opposed the production of some letters written by OGDC, which would have shed light on the true story of the accused. 18. The learned counsel for the State contended that the motive was proved through PW-7 Muhammad Aslam and that the occurrence took place in broad day light. Therefore, there was no possibility of any error or mistake regarding the assailants. When confronted with Ex. DD, the learned counsel for the State contended that it was a clerical omission on the part of petty official and ought to be over looked. 19. We have given our careful consideration to the above arguments. There is no escape from the conclusion after going through the statements of eye witnesses that they were not only inter se related to each other closely but were also related to the deceased. It is also clear from the statement of complainant Muhammad Nawaz that there was a back ground of enmity between the parties since 1985 when his sister Mst. Bakhat Begum was molested and tried to be outraged, by the accused Suba Khan, Itibar Khan, and Sardar Khan etc. 20. The complainant had stated that prior to the incident of 10.5.1987 Suba Khan etc. accused had no enmity with them. However, in his same statement regarding the incident of Bakhat Begum, he admitted that it generated enmity with the accused party and the complainant side. It was also stated during cross-examination by the complainant that they had retaliated the occurrence of Bakhat Begum by beating Itibar Khan one of the appellants who was also accused in that case, but he again corrected himself in the same breath by saying that incident of quarrel took place on account of acceptance of tender by the company (OGDC). However, he stated that the incident of tender had occurred after the molestation of Bakhat Begum. A case was accordingly registered under section 324/148/149 PPC at the report of Itibar Khan appellant regarding the above mentioned incident against the complainant side. 21. It follows from above that the parties had admittedly inimical background. It was further admitted by the complainant that PWs in this case were the members of the same family. This shows that the PWs were not only, closely related inter se but were also inimical to the accused side i.e. appellants. The complainant also admitted that they had some dispute with OGDC in the past on account of payment of compensation and that the said dispute was pending for the last 10 years. It was further admitted by the complainant that he and his deceased brother Sher Khan had blocked the passage leading to the Toot Oil Field on account of this dispute. This part of the statement of the complainant makes it clear that in the past also the complainant and his brother (deceased) with the help of his companions used to block the passage leading to the Toot Oil Field and that it was not an innovation, on the part of defence to raise this plea for the first time. Although'it was denied that the occurrence had taken place due to a fight ensuing from the blockage of passage, but the defence story is to be looked into in its background and in comparison to the prosecution version to find out as to which was reasonable story. The complainant has alleged that he was present at the place of occurrence as he had to reach for duty there. At the same time he stated that he was employed at Dakhni No. 6, which is at a distance of 85 miles from Toot Oil Field and that there was no Rig-machine functioning in the said Field since September, 1986. It may be pointed out here that the complainant had stated earlier that he was a Rig-man and was employed at Toot Oil Field. However, this statement of the complainant becomes doubtful because according to his own version during the crossexamination, no Rig-machine was functioning at Toot Oil Field. As such his contention that he had gone to report for duty at Toot Oil Field would be belied by his own statement. He also deposed that Noor Hussain and Itibar Khan did not inflict any injury by the hatchet or vaholi from the sharp side on Sher Khan, when he had fallen down. 22. The prosecution story is that the appellants had assembled there to finish the deceased and if so was their common object and intention, then why they have not used rifle and gun with which two of then; were armed. Like-wise it is also not understandable, as to why the sharp side of the weapons like hatchet or vaholi was not used to inflict the injuries to the deceased if they actually wanted to kill him. The normal course of events i would suggest that in this situation, the accused/appellants while armed . I with firearms would use the same to finish the deceased and accused armed i with hatchet etc. would use sharp side of the weapon instead of using them ; from wrong side. The departure from this phenomenon would identify some inherent flaws in the prosecution case, which were tried to be removed after having looked at the medical evidence and after due deliberations and consultations. It is for that reason that the first version reported to the police that Suba Khan and Ghulam Hussain accused had fired from their arms injuring the head of the deceased was substituted with the present version of the non-use of firearm and use of hatchet etc. from their wrong sides as injuries to the deceased and PWs were with blunt weapons. In such a situation, the very basis i.e. FIR becomes a doubtful piece of evidence and any structure built over it would crumble in an attempt to support it through tainted, interested and inimical evidence. Any reasonable mind will not accept the present version advanced by the prosecution. It is also a . matter of serious concern that in the FIR three accused had wielded their r I weapons to cause injuries on the head of deceased, but according to the post 101 1 mortem report, there were only two injuries on the head of the deceased, which made the prosecution case highly doubtful regarding the implication of all the three accused nominated therein although out of them one namely Muhammad Qasim had already been acquitted being held as innocent by the learned trial court. The other co-accused namely Suba Khan who was allegedly armed with a gun was also found innocent and his plea of alibi was accepted by the Investigating Agency. He has been held innocent by the learned trial Court. This shows that an un-holy effort has been made even to involve innocent persons in this blood feud. The investigation in this case was also unwholesome. The Investigating Officer had resorted to a wrong method of pick and choose while dealing with the case. The plea of alibi was raised before him by Suba Khan to which he verified and came to the conclusion that he was not present at the place of occurrence and as such placed him in column No. 2 of the challan. Likewise he arbitrarily rejected the plea of ali-bi raised by Muhammad Qasim before him and did not advance any reason to be dissatisfied by the evidence adduced before him in that respect. It shows that the investigation was not conducted on scientific lines as would be clear from the cross-examination of the Investigating Officer, who admitted that it was brought to his notice during the course of investigation that employees of Toot Oil Field used to mark their attendance at the place of occurrence but he did not bother to verify as to how many workers used to assemble there. According to him, investigation on this line was not unnecessary although it was the plea of the accused that they were involved due to enmity, but the occurrence had taken place in some different manner. Any sanguine effort on the part of the Investigating Officer would have highlighted the true facts but no effort was admittedly made to look into the background which resulted into the present occurrence. Investigating Officer also admitted that during the whole of his investigation no eye witness of the occurrence taking place on 10.5.87 had appeared before him. He also admitted that no medical report in respect of Sher Khan deceased regarding his injuries on the aforesaid date was produced before him. It is thus obvious that the incident of 10.5.1987 resulting from the suspicion of illicit relations between the Sher Khan and Mst. Malkani i.e. the daughter of Ghulam Hussain accused remained highly doubtful. It, therefore, follows that the prosecution story was not only weak on account of any credible testimony of the eye witnesses, but also remained un­ substantiated regarding the motive alleged in the FIR. 23. The statement of Muhammad Aslam would not be of any value under the existing circumstances because there was no corroborative evidence of intrinsic value to sustain the story disclosed by him. Although he stated that there was some brawl between the deceased and Ghulam Hussain in which the former had hit the latter with a soti and caught hold of his arm, but at the same time the witness stated that Muzaffar Khan while armed with soti hit Sher Khan. On seeing the incident the witnesses along with Khan Muhammad rescued Ghulam Hussain. Rather the witness was told by the deceased that he was being suspected for illicit relation by Ghulam Hussain for which the above occurrence had taken place. As already stated above, the witness is not only related to the complainant side but appears to be a chance witness, as he was present at the Petrol Pump to chit chat with one Khan Muhammad. The cross-examination of the witness shows that he made improvement in order to strengthen the prosecution story and was disbelieved even by the learned trial court in respect of the recoveries affected from the accused. As already stated above, there is no trust worthy corroboration of this witness relating to the first incident, therefore, his bald statement would not help to prove the motive as alleged by the prosecution. 24. The question of deformity of Noor Hussain to wield weapon with right arm is also meaningful. In this respect, the statement of Dr. Syed Farrukh Habib Sadiq Shah DW-1, Orthopaedic Surgeon Vrill show that his right hand was not functioning normally and he was disabled to use any kind of force as compared to his left hand. Although the doctor stated that the deformity was approximately one year's old, but certainty regarding the period of disability could not be assessed because a question to that effect was disallowed by the learned trial court thereby shutting out the possibility of getting a clear verdict from the expert. However, the statement of Noor Hussain accused under section 342 Cr.P.C. would be relevant so far his answer to question No. 13 is concerned, wherein he had contended that he was unable to hold or use to inflict any injury to any one. Although no evidence of certainty was produced, but the fact remains that there was disability of some nature with the right hand/arm of the aforesaid accused at the time when he was examined by DW-I and the aforesaid deformity existed for approximately one year prior to the said examination. In such a situation, the possibility could not be ruled out that the disability might have existed at the time of occurrence as alleged in the defence particularly when a question to the expert was shut out on the objection of the complainant side to ascertain the exact age of disability by suggesting that the same could be more than 5 years or 10 years old. Any ambiguity in that connection would create a reasonable doubt in favour of the accused particularly when a chance of clarification has been shut out and also because of the nature of evidence adduced by the prosecution and as analysed above. 25. In view of our above discussion, we come to an irresistible conclusion that the prosecution has not been able to prove its case beyond ny reasonable doubt against any of the accused/appellants. We therefore, accept the appeal and while extending the benefit of doubt to all the appellants acquit them of all the charges against them. Death 'Sentence awarded to Noor Hussain appellant under section 302 PPC is therefore, not confirmed. The conviction and sentences awarded to all the appellants by the learned trial court are accordingly set aside. Murder Reference No. 389/91 is accordingly disposed of. 26. The criminal revision No. 146/91 also stands dismissed. 27. The appellant Noor Hussain shall be set at liberty forthwith if not required to be detained in any other case. The remaining appellants are on bail and their bail bonds shall stand discharged. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1167 [DB] [Circuit Court Hyderabad ] Present: HUSSAIN ADIL KHATRI AND DR. GHOUS MUHAMMAD, JJ. KHUR-Appellant versus STATE-Respondent Criminal Appeal No. 110 of 1995 accepted on 30.10.1995. (i) Burden of Proof- -—In a criminal trial, however, intrigiting may be facts and circumstances of case the charge framed against accused must be proved beyond all reasonable doubts and requirement of proof can not lie in realm of surmises and conjectures. [P. 1173] D (ii) Identification- —Accused-Identification of-Whether in dark night when Police Party was engaged in encounter was it possible for witnesses to have identified culprits-Question of--Police threw two or three light bombs on dacoits it is unbelievable that P.W. 3 could have identified unknown culprits from a distance of about 150 feet in a case of dacoity followed by encounter where source of identification was only 2/3 light bombs-In such a case where only evidence is of identification question of light is of paramount importance-When dacoits and police come closer during encounter at place like jungle in dark night with natural fear and confusion which presence of dacoits and firing creates it is not possible that police would be in a position to be careful to notice features of dacoits-Even if two witnesses are believed that they have spoken truth that they saw faces of 17/18 persons (culprits) it is not possible to accept their version having recognized appellant as one of culprits particularly when he was a stranger from them and had no distinctive mark as to his appearance to fit his features indelibly upon minds of witnesses-Held : No reliance could be placed on evidence such witnesses. [P. 1172] A & B (iii) Identification-- —Accused-Identification of~Precautions for--It is duty of prosecution to establish during trial that every necessary precaution was taken to ensure fair identification. [P. 1173] C Qurban All Chohan, Advocate for Appellant Shaft Muhammad Memon, A.A.G. for State. Date of hearing: 22.5.1995. judgment Dr. Ghous Muhammad, J.--This appeal has arisen out of judgment dated 20.7.1993 passed by the learned Judge (Special Court) S.T.A., Nawabshah (Mr. Noor Muhammad Shaikh) in Cr. Case No. 55/1995 whereby he sentenced and convicted the appellant and the fourteen coaccused to undergo imprisonment for life, forfeiture of their properties to the extent of Rs. l.OO.OOO/- each or in default to suffer further R.I. for three years. The F.I.R. for the offences under Sections 302, 307, 353 365-A, 148, 149 P.P.C. and 13-D Arms Ordinance was lodged by the driver of Blue Lines Bus Sendee. He alleged that he drove his bus loaded with passengers at 4.30 p.m. on 26.11.1990 from Larkana and when he reached Aliabad at 8.30 p.m. he had to slow down the speed because a truck were crossing at that place. However, as soon as the truck passed away firing started at the bus from both sides of the road and he was compelled to stop the bus which as surround by 17/18 armed persons. He was directed by four persons to open the door and thereafter all the culprits entered into the bus. They robbed the passengers and also directed them alongwith the complainant and the cleaner to move towards the canal side. They also snatched Rs. 8.000/- from the complainant. After about 1 \ hours when they reached near the "bund" they saw light of some vehicles. The dacoits asked the abductees to sit on the ground and some of them went ahead. The dacoits noticed that the law enforcing agencies were following them. This was followed by exchange of firing from both the sides for an hour. During this period the passengers started running towards the law enforcing agencies but two of them fell down and sustained fire arms injuring. The law enforcing agencies narrowed their circle and threw shells of light and identified the culprits who managed to escape inspite of chase by the Rangers and police. All the released abductees were brought at the Police Station and the FIR was lodged by the driver. The police also secured one dead body from the place of encounter and one injured namely Nizamuddin Rajput was referred to hospital at Kazi Ahmed. After usual investigation the case was challaned. The learned trial court framed the charge against the appellant and the 14 absconding accused on 13.10.1991. The appellant pleaded not guilty to the charge and claimed to be tried. The prosecution examined seven witnesses P.W. 1 Khan Muhammad is a mashir. He produced mashirnama of exchange of firing, securing of dead body and injured person from the place of incident. He also produced the inquest report and mashirnama of arrest of the appellants. He took part in the identification test of the suspects involved in this case. He also arrested the appellants and produced the mashirnama (Ex. 3). P.W. 2 Allah Bux is the Asstt. Mukhtiarkar and TCM Daulatpur who had supervised the identification test parade held on 19.6.1991. He produced the mashirnama which was prepared by him. P.W. 3 Dr. Sikandar Ali was Medical Officer of Rural Health Centre, Kazi Ahmed. He conducted postmortem examination on the dead body which was brought by P.C. Abdul Rahman of P.S. Kazi Ahmed, and he produced postmortem report. P.W. 4 Ghulam Nabi is to complainant. P.W. 5 Sikandar Ali was SHO, Kazi Ahmed on 26.11.1990. On receipt of information from SHO Daulatpur that a bus was being robbed by some culprits at Aliabad he rushed towards that place with police party and then alongwith other members of the law enforcing agencies they followed the track and finally when the reached at the bund the firing was exchanged. The police party threw two light bombs on the opponents side and saw that there were 17/18 dacoits who were firing at the police party. P.W. 7 Muhammad Yousuf was passenger in the bus who was abducted alongwith the other passengers. P.W. 8 SHO Siraj Ahmed had partly investigated the matter. The appellant in his statement recorded under Section 342 Cr.P.C. denied the prosecution allegations and pleaded innocence. He did not produce any evidence in defence but he examined himself on oath and stated that he had no knowledge about the alleged incident and prior to this case he was not involved in any other case but in cross-examination he admitted the suggestion that four cases of abduction were pending against him in the trial courts. P.W. 1 ASI Khan Muhammad was SHO, Kazi Ahmed Police Station on 26.11.1990. He deposed that at about 8.30 p.m. on that day SHO Kazi Ahmed Sikandar Ali received telephonic message that some dacoits had blocked the National Highway near Aliabad and were robbing the passengers. Therefore, on the direction of the SHO this witness and the police party went to that place where they found one empty bus of Blue Line Service and some persons were available there. According to them all the passengers were abducted by the dacoits alongwith driver and the conductor of the bus. In the meanwhile two vehicles carrying Rangers also arrived there. The Police party and the Rangers followed the dacoits through link road and when they reached at the protective bund they came under heavy firing from the dacoits. According to this witness the police party fired three light bombs in the light of which they saw 17/18 culprits who were armed with rifles. Therefore, the police also fired for about half an hour and then the encounter ended. The 14/15 abductees also informed the police party that during encounter some passengers had sustained injuries and they took the police party to the place where-from the passengers were abducted. There the police party saw one person lying injured and the other one had died. The injured was taken to the hospital and the dead body of the deceased was shifted to Kazi Ahmed, Hospital. The S.H.O. himself alongwith his police party and the Rangers followed the dacoits towards the jungle. This witness prepared mashirnama of vardat at the spot where the injured was lying in presence ofmashirs Zulfiqar Ali and Ali Akbar Dahery (Ex. 10- A) and the mashirnama of the place where the bus was parked (Ex. 10-D). He also identified and picked out the present accused as one of he culprits in the identification test. In cross-examination he stated as follows: "At the time of encounter I had seen the accused at a distance of about one jarib. The night of the incident was dark but we have seen the faces of the accused in the light of light bombs. It is not a fact that the accused was previously known to us as he used to visit Kazi Ahmed Police Station," P.W. 2 Allah Bux was Assistant Muktiarkar and T.C.M. Daulatpur on 19.6.1991. On that day Police of Kazi Ahmed Police Station produced the appellant before him for holding identification test. This witness kept the appellant sitting in his office where from he was not visible to any person. After fifteen to twenty minutes he was informed by the police that the witnesses had reached the office for identification. He then arranged dummies from amongst the persons who were available there. He mixed the appellant after removing his hand off with the nine dummies and called ASI Khan Muhammad through his peon for identification of the appellant He identified him properly. The another assembly of fifteen persons including the accused was formed and the accused stood at different members from the eastern side. This witness then called H.C. Muhammad Dyas, who also picked out the appellant. Likewise the remaining witnesses, namely, H.C. Ghulam Muhammad and P.C. Bahar also picked out the appellant from different lines. Thereafter in the presence of mashirs Muhammad Bux and Ali Zaib the learned Magistrate prepared the ntashirnama (Ex. 6-Ai. In cross-examination he stated that he had no information as to where from and when the appellant was arrested. He denied the suggestion that the police, the P.Ws and the accused were brought in his office together. He also denied the suggestion that no identification test was held and the mashirnama was prepared in his office. P.W. 3 Dr. Capt. Sikandar Ali was Medical Officer at Rural Health Centre, Kazi Ahmed. He received a deadbody of unknown person for postmortem on 27.11.1990 at 1.00 p.m. through P.C. Abdul Rahim of police station Kazi Ahmed. After postmortem examination he issued certificate (Ex. 8A). He was not cross-examined by the learned defence counsel. P.W. 5 SIP, Sikandar Ali was SHO Kazi Ahmed Police Station on 26.11.1990. He was informed by SHO Daulatpur that a robbery had taken place near Aliabad. Therefore, be alongwith his subordinate police staff went towards that place in their official vehicle. As soon as they re'ached there they saw one bus lying abandoned and a lay man was sitting there. He informed to the police party that after dacoity the passengers of that bus were taken away by the culprits on foot towards western side. In the meanwhile two vehicles of Rangers who were on patrol duly also reached there and then they all went in search of the passengers. At about 9.30 p.m. when the law enforcement agency reached at the bund they were fired upon by all the dacoits. The police party and the Rengers also returned fire at the culprits. According to this witness they also threw two light bombs in the light of which they saw that there was about 17/18 dacoits who were firing at them. During the encounter about 15/16 abductees managed to escape towards the police side but two of them had sustained injuries. One of them died on the spot while the other one disclosed his name as Nizamuddin Rajput ASI Khan Muhammad took the passengers and the injured as well as the deadbody to the Police Station. This witness and the remaining members of the law enforcing agencies followed the dacoits in the jungle but after staying there for 2/3 days they returned and could not find any trace of the culprits. On 5.12.1990 he was transferred from P.S. Kazi Ahmed. Therefore, for the purpose of remaining investigation he handed over the case papers to SHO -Muhammad Aslam Barani P.W. 6 Bahar Ah' was police Constable posted at Kazi Ahmed Police Station. He also supported the statement of P.W. 5 SIP Sikandar Ali but he deposed that during the encounter the police party threw light bombs on the light of which he had seen the faces of all the accused persons who were 17/18. He also deposed that the appellant was one of the culprits involved in the exchange of firing with police. In cross examination he stated as follows: "At the time of encounter the dacoits were at a distance of about 25-30 paces from us I had consumed 32 bullets of semi-Auto-matice rifle. The dacoits were spread over an area of 35 paces from every one of them." P.W. 7 Muhammad Yousuf was one of the passengers who were abducted by the dacoits. He deposed that there were twenty five passengers in the bus and the dacoits robbed him of Rs. 2,200/- and one watch. He also stated that firing was exchanged between the police and Rangers as well as dacoits. According to him he saw two deadbodies of passengers and after searching his cousin Ali Akbar they took shelter in the nearby village. This witness was also not cross-examined by the learned defence counsel. The mainstay of the prosecution in this case are the following pieces of evidence: (a) Ocular testimony (b) Medical and circumstantial evidence. There is no doubt that the incident of robbery and abduction as alleged took place on 26.11.1990 at 8.30 p.m. and thereafter the passengers alongwith the driver and cleaner of the bus were abducted and kept in custody by the culprits till the encounter with the law enforcing agencies took place on the same night. There is also no denying the fact that the culprits were strangers to the prosecution witnesses and the dacoity/abduction and exchange of firing took pace in dark night. So far the Ocular testimony is concerned, the private witnesses, namely, complainant Ghulam Nabi, the driver and Muhammad Yousuf one of the passengers have not supported the prosecution version. P.W. 4 driver Ghulam Nabi even went to the extent of deposing in this examination-inchief that the faces of the dacoits were muffled as such he could not identify them although from the beginning to the end he had the opportunity to recognise them. Therefore, evidence of these witnesses is of no help to the prosecution. Now, there remains three witnesses, namely ASI, Muhammad (P.W. 1) and S.I.P. Sikandar Ah' (P.W. 5) as well as P.C. Bahar All (Ex. 6). P.W. 1 deposed in his cross-examination that he saw the accused at a distance of about one jarab in the light of light bombs P.W. 6 stated that when the Police Party threw light comes he had seen faces of all the accused persons who were firing at the police party but he has no given the approximate number of the culprits. The crucial question is whether in dark night when the police party was engaged in encounter was it possible for the witnesses to have identified the culprits. It would be significant to note that P.W. 4 Ghulam Nabi as well as P.W. 7 Yousuf have nowhere deposed that the police threw light bombs on the dacoits. Had this been a fact they could have conveniently said so in their statements. Nevertheless, assuming that the police threw two or three light bombs on the dacoits it is unbelievable that the P.Ws could have identified the unknown culprits from a distance of about 150 feet in a case of dacoity followed by encounter where the source of identification was only 2/3 light bombs. In such a case where the only evidence is of identification the question of light is of paramount importance. This should always be approached in a careful and judicious manner and not in an unintelligent and wooden manner as has been done by the learned trial court When the dacoits and the police come closer during the encounter at place like jungle in dark night with the natural fear and confusion which the presence of dacoits and firing creates it is not possible that the police would be in a position to be careful to notice the features of the dacoits. Even if the two witnesses are believed that they have spoken the truth that they saw the faces of 17/18 persons it is not possible to accept their version having recognized the appellant as one of the culprits particularly when he was a stranger for them and had no distinctive mark as to his appearance to fit his features indelibly upon the minds of the witnesses. Therefore, no reliance could be placed on the evidence of such witnesses. So far the medical evidence is concerned this only supports the prosecution that during encounter one unknown person died on the post due to fire arm injury. But nowhere it has been established that he died due to the firing of the appellant or his accomplices. Now there remains o,nly the evidence of identification test which took place on 19.6.91 under the supervision of T.C.M. and Asstt. Mukhtiarkar Allah Bux. The mechanism of identification proceedings are well known and does not require repetition. Reference in this regard may be made to rules 26.7, 26.32 and also rule 27.25 ( Vol. Ill ) of the Police Rule 1934. However in order to ensure that the proceedings are properly conducted and are entirely above suspicion it is essential that the rules and the principle governing the holding of identification test parade should be strictly followed. So far as the identification of persons is concerned, it is a very weak type of evidence the value of which is easily destroyed if there is any suspicion that the conduct of the investigation agency was not absolutely above board. Therefore, precautions are necessary to conceal the identity of the accused while he is being removed from one place to the other and it is also the duty of the police that all necessary steps should be taken to ensure that the accused should not be seen by the witnesses before the identification test parade. The police officer who arrests the accused should get his face covered and take him to the police station in that state. In the police station the lock-up in which such an accused is kept should be covered with curtain so that no one is able to see his face. When he is taken to court or to jail his face should be kept covered. In jail also no outsider should be allowed to see his face. All these precautions should not only be taken but should be proved to have been taken. That these precautions were taken should be recorded in official records like the general diary of the police station and the jail register and the same should be produced in court In the absence of such evidence, no value can be attached to the identification of an accused person made by a witness. In other words it is the duty of the prosecution to establish during the trial that every necessary precaution was taken to ensure fair identification. In the instant case the accused was arrested on 19.6.91 and he was put to identification test on the same day. However, as was rightly pointed out by the learned counsel for the appellant the mashir of arrest and mashir of identification are the same persons and strange enough the scribe of mashirnamas of arrest (Ex. 3-E) and identification (Ex. 6A) is also the same which indicates that the mashirnama of identification was prepared by P.W. 1 (ASI Khan Muhammad) and not by the Assistant Mukhtiarkar and T.C.M., Daulatpur (P.W. 2). This proves that the identification test parade was treated as a routine formality by the prosecution and such practice deserves to be depreciated. No reliance can be placed on such a mashirnama of identification. In a criminal trial, however, intriguing may be the facts and circumstances of the case the charge framed against the accused must be proved beyond all reasonable doubts and the requirement of proof cannot lie in the realm of surmises and conjectures. The learned trial court lost sight of this well settled principle of criminal jurisprudence while evaluating the evidence led by the prosecution. The upshot of above discussion is that the prosecution has miserably failed _ to prove the charge against the appellant. By a short order on 22.5.1995 we had allowed this appeal and reversed the judgment of the trial cjuit and acquitted the appellant. The above are the reasons for the same. (ILA.B.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1170 Present: tassaduq hussain jilani, J. MUHAMMAD ILYAS-Appellant versus STATE-Respondent Crl. Appeal Nos. 295 and 300 of 1992 decided on 3.12.1995. (i) Pakistan Penal Code, 1860 (Act XLV of I860)-- —S. 161 read with section 5(2) of Prevention of Corruption Act, 1947--Illegal gratification-Case of-Conviction for--challenge to--In initial statement recorded before raiding Magistrate appellant a dispenser, stated that he accepted Rs. 420 for doctor and his share was only to extent of Rs. 40 only-In raid cases under anti-corruption laws statement of an accused assumes special significance-Statement of accused and recovery of tainted money has effect of corroborating statement of complainant-Prosecution case, therefore has proved against appellant- However, coming to question of sentence, High Court is of the view that version given by appellant that be accepted tainted money at asking of doctor cannot be ignored-Doctor was neither cited as witness nor impleaded as an accused-Appellant has suffered agony of protracted trial-Held: Ends of justice would be met if appellant is sentenced to be period to which he has already undergone-Appeal dismissed. [Pp. 1150& 1151] B,D&E (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 161 read with Section 5(2) of Prevention of Corruption Act, 1947- Dlegal gratification-Case of-Conviction for-Challenge to-Appellant, although admitted the receipt of Rs. 20/- but stated that said amount was paid to him for purchase of ATS injections and medicine which had to be administered to injured-Prosecution case is not free from doubt-Held: Appellant is acquitted-Appeal accepted. [Pp. 1148 to 1150] A & C Mr. M.A. Zafar, Advocate, for Appellants. Mr. A.H. Masood, Advocate, for Respondent. Date of hearing: 3.12.1995. judgment This judgment shall dispose of Crl. Appeal Nos. 295/92 filed by Muhammad Hyas, appellant and Crl. Appeal No. 300 of 1992 filed by Muhammad Shafiq, appellant as they arise out of the same judgment dated 9.4.1992 passed Special Judge Anti-Corruption, Sargodha whereby he convicted both the appellants u/s 161 PPC R/W Sec. 5(2) of the Prevention of Corruption Act, 1947 and sentenced to them in the following terms:- (i) Muhammad Ilyas, appellant:- One year R.I. with a fine of Rs. 1000/- and in default of payment of fine to further undergo six months R.I. (ii) Muhammad Shafique, Appellant: - Six months R.I. with a fine of Rs. 500/- and in default of payment of fine to further undergo three months R.I. 2. The prosecution story as given in the FIR Ex. PR registered on the complaint of PW-1 Nazar Hussian, briefly stated is that bis friend, Akbar was injured in some fight. He wanted to have him medically examined and obtain medico legal certificate. He went to District Headquarter Hospital , Faisalabad . Muhammad Ilyas, appellant who was serving there as Dispenser, demanded Rs. 600/- for the said purpose. However, after some negotiation, the deal was settled at Rs. 400/- As he did not want to pay the illegal gratification, he contacted PW-2, Ch. Muhammad Ashraf, Inspector F1A and he presented application Exh. P.F to A.D.C.G. for deputing a Magistrate for the purpose of raid. However, A.C. Faisalabad vide order dated 1.3.19S7 deputed Ch. Muhammad Ismail, MIC to conduct the raid. He recorded statement of Nazar Hussain, PW-1 which is Exh. PA, constituted a raiding party and gave tainted notes of Rs. 420/- to Nazar Hussain, PW-1 for the afore-referred purpose. At the appointed time, PW-1 went to Hospital alongwith the members of the raiding party. PW-1 went inside the room where the Dispenser and the Doctor were present while members of the raiding party remained outside. Within their view, the appellant Muhammad Ilyas, accepted the money and handed over the medico-legal certificate Ex. PB to the complainant. Muhammad Shafique, appellant also received Rs. 20/- Immediately thereafter, the raiding party went to the spot and re6overed the tainted currency notes from the appellants Muhammad Eyas and Muhammad Shafique the serial numbers of which were tallied with the serial numbers which had already been noted prior to the raid. PW- 4 Ch. Muhammad Ismail, recorded the statements of both the appellants. The appellant Muhammad Ilyas, admitted that he accepted Rs. 400/- for issuing the medico-legal certificate Exh. P.B. However, he stated that he was to get Rs. 40/- and the rest of the money was to be given to Dr. Iftikhar Piracha and sought forgiveness. The appellant, Muhammad Shafique, although admitted the receipt of Rs. 20/- but stated that the said amount was paid to him for the purchase of ATS injunction and medicine which had to be administered to Akbar, injured. Immediately after the raid, a supplementary statement of Nazar Hussain, PW-1 was recorded to the effect that when he went to Hospital, he had also contacted Dr. Iftikhar Piracha who told him to meet his Dispenser i.e. the appellant, Muhammad flyas and that thereafter, he will issue the medico-legal certificate. 3. As the matter pertained to Provincial Government and the case had initially been registered by the FIA vide FIR Exh. PQ, the FIA decided to transmit the same to Anti Corruption Establishment. Whereafter, the aforereferred FIR was registered on 15.8.1987. During trial, the prosecution produced four witnesses i.e. PW-1 Nazar Hussain, PW-2, Ch. Muhammad Asbraf, Inspector FIA, PW-3 Ch. Abdul ffafeez, Eegionaf Inspector ACE Faisalabad Region. He conducted the investigation and submitted report u/s r/S'Cr.F.C: in tri'af court. PW-4 Ch. Muhammad Ismail MIC supervised the raid proceedings and recorded statements of the appellants immediately after the raid. 4. Learned counsel for the appellants in support of the appeals, raised the following points:- (i) that the registration of case vide FIR Exh. PQ by the FIA is product of mala fides in as much as FIA had no jurisdiction to proceed in the matter. (ii) that in terms of Rule 14 of the Anti-Corruption Establishment Rules, 1985, it is either the DC or the ADCG who has to pass an order for constituting a raiding party and in this case, the AC passed the afore-referred order which is not warranted in law. (iii) that no public witness was associated with the raid proceedings and conviction cannot be based on the statement of Nazar Hussain, PW 1 who had doubtful credentials in asmuch as he admitted that a complaint was pending before the learned District & Sessions Judge wherein it was alleged that he was (Nazar Hussain) a tout. PW-1 while recording his statement before the Police stated that he was a member "Tanzeem Mohasba Rishwat Satani" whereas during trial, he disowned having made the said statement. (iv) that prosecution evidence is discrepant. PW-1 Nazar Hussain, stated that the • Doctor was present at the particular time whereas PW-2 stated that the Doctor was not present. Similarly, PW-1 stated that the payment was made in the "Hall" whereas PW-2 and PW-3 stated that it was made in the room. (v) that non production of Akbar, injured with regard to whose injuries Exh. PB, the medico-legal certificate was issued, has weakned the prosecution and the same is therefore not free from doubt 5. Learned counsel for the State on the other hand, has supported the impugned judgment and submitted that Muhammad Ilyas admittedly received the amount in question and the onus was on him to prove that the money was not paid and that onus he has failed to discharge. 6. I have heard learned counsel for the parties and have also gone through the record. 7. The recovery of tainted money has been proved on record not only by the statement of PW-1 and PW-2 but also the statement of PW-4 Ch. Muhammad Ismail MIC with whom the appellant has neither any enmity nor the same has been suggested. That being so, in terms of Section 4 of the Prevention of Corruption Act, 1947, the onus shifted oa the appellant to prove that he accepted the amount for a bona fide purpose. In the initial statement recorded before the raiding Magistrate, he stated that he accepted the money for Dr. Iftikhar Piracha and his share only was to the extent of Rs. 40/- In raid cases under the anti-corruption laws the statement of an accused assumes a special significance. In the instant case, the statement of the accused and the recovery of the tainted money has the effect of corroborating the statement of the complainant The prosecution case, therefore, to the extent of Muhammad Ilyas, appellant has been proved. So far as Appellant Muhammad Shafique is concerned, his explanation immediately after the raid was that the amount was paid to him as payment of ATS injection and a medicine that had to be administered to the injured, Akbar. While endorsing this fact that the appellant did make such statement it is surprising that neither PW-4 Muhammad Ismail nor PW-3 Abdul Majeed, who investigated the case took any note of this and probed any further. It was the duty of the Investigating Officer to investigate the version of the accused. To his extent therefore, the prosecution case is not free from doubt. The conviction of Muhammad Shafique appellant is thus set aside and hi appeal i.e. Cr. A. No. 300 of 1992 is allowed and he is acquitted. 8. In view of what has been discussed above in the foregoing paragraphs, the conviction of Muhammad Ilyas, appellant is unexceptional. However, coming to the question of sentence, this Court is of the view that the version %iven by the appellant is his statement that he accepted the tainted money at the asking of Dr. Iftikhar Piracha cannot be ignored. It is on record that PW-4 Ch. Muhammad Ismail, MIC recorded the supplementary statejtnent of PW-1 Nazar Hussain, complainant wherein he alleged that in fact it was Dr. Iftikhar Piracha who referred him to appellant Muhammad Ilyas with the promise that thereafter he will issue the medi-co- legal certificate. The said Dr. Iftikhar Piracha was neither cited as a witness nor impleaded as an accused. The case was registered in March, 1987 and the appellant has suffered the agony of a protracted trial. In these circumstances, the ends of justice would be met if the appellant is sentenced „ to a period to which he has already undergone. (K.K.F.) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1174 Present: rana bhagwan das, J. MUHAMMAD BUX--Applicant versus MUHAMMAD SIDDIQUE and 3 others-Respondent Crl. Misc. No. 331 of 1995 partly accepted on 24.3.1996. Bail--Anticipatory~ —Bail-Grant of--Prayer for--Murder--Offence of-There is no doubt that place of incident in both cases is one and same but there is no denial of fact that report lodged by applicant was prompt in point of time whereas counter report was lodged by Muhammad Qasim belated by 24 hours and there is no plausible explanation forthcoming for this inordinate delay which would prima facie tend to show that counter version was after thought and put forward after due deliberations-Instant death of deceased as a result of fire-arm injuries and hatchet wounds is not disputed and is supported by post mortem report-There is nothing on record to show that respondents were falsely implicated or that prosecution was launched with ulterior motive to disgrace or humiliate respondents—Sessions Judge committed an error by admitting respondents to pre-arrest bail at initial stage of investigation-Respondent Jawaid is neither related to other respondents nor did he commit any overt act in commission of offence-He was rightly granted bail-Held: Bail granted to other respondents is cancelled-Bail cancelled. [Pp. 1176 to 1178] A, B, C, D & E Mr. Muhammad Ashraf Leghari, Advocate, for Applicant. Mr. Muhammad Jamil Zubedi, Advocate, for Respondent Nos. 1 to 3. Mr. Abdul LatifAnsari, Asstt. A.G. for State. Date of hearing: 24.3.1996. order The applicant who is complainant in crime No. 92/1995 registered at Police Station Pangrio District Badin, seeks an order to cancel bail before arrest granted to respondents by learned Sessions Judge Badin vide order dated 5.12.1995. 2. Respondents alongwith others are charged with the commission of murder of deceased Jan Muhammad and causing injuries by hatchet as well as lathi to witnesses Ghulam Muhammad, Bachayo and Ghulam Qadir are involved in the aforesaid crime. It is the case of the prosecution that on 15.11.1995 at about 11.00 a.m. respondents alongwith co-accused committed criminal trespass in the Sugarcane cultivation of the complainant and his brother deceased Jan Muhammad. It is said that dispute over the land was going on between the parties for the last two years and litigation before the courts was going on. It is said that respondent Allah Dino who was armed with a shot gun fired at Jan Muhammad who also fired in his self defence. It is said that on instigation of respondent Jawaid, respondent Muhammad Sadiq caused hatchet blows to Jan Muhammad who fell down. On intervention by complainant and witnesses accused Bachoo gave a hatchet blow to Ghulam Muhammad whereas accused Uris dealt a hatchet blow to P.W. Bachayo, accused Muhammad Qasim gave hatchet blow to Ghulam Qadir whereas accused Nooro caused hatchet injuries to Ghulam Rasool and Yousuf who sustained injuries. Report of the incident was promptly lodged with Police out Post Khoski P.S. Pangrio on the same day at 2.00 p.m. 3. On the part of respondents one Muhammad Qasim lodged report on the next day at 11.00 a.m. alleging that he and his brothers were granted 12.00 acres of land in Deh Hingorjani and in the proximity of the said land they had purchased 3.00 acres of land from Lakhadino. According to him a dispute was going on over this piece of land between the parties. On the earlier day at about 11.00 a.m. Porrho duly armed with a rifle, Ghulam Muhammad Lashari carrying a shot gun, Ghulam Rasool armed with a rifle, Ghulam Muhammad and Taj Muhammad Lashari duly armed with rifles, Ghulam Muhammad Sheedi Beldar, Ghulam Qadir Sheedi and Bachayo Sheedi carrying hatchets, Jan Muhammad duly armed with a shot Gun and seven unidentified persons firing in air entered their Sugarcane cultivation. It was alleged that at the instigation of Mir Muhammad Lashari, Jan Muhammad fired a gun shot at the complainant party. Porrho, Ghulam Muhammad Lashari, Ghulam Rasool Lashari, Ghulam Muhammad Sheedi and Taj Muhammad Lashari also fired from their rifles and guns at them whereas Ghulam Muhammad Sheedi Beldar, Ghulam Qadir Sheedi and Bachayo Sheedi caused hatchet injuries with sharp side to Uris and Bachoo (brothers) and Nooro and Jeewan (nephews) of the complainant. Muhammad Sadiq and Allah Dino went to complain to their Zamindar Shafi Muhammad but did not turn-up whereafter report was lodged with police as alleged. Respondents approached the Court of Sessions Judge Badin for prearrest bail who were admitted to interim bail which was subsequently confirmed vide order dated 5.12.1995 which has been impugned in the present application. 4. Mr. Muhammad Ashraf Leghari learned counsel for the applicant seriously urged that the respondents having been nominated in the FIR promptly lodged, specific role of firing gun shot to Allah Dino and causing hatchet injuries to Muhammad Sadiq and Lalkara attributed to respondent Jawaid, they were not entitled to anticipatory bail which has jeopardized the investigation as a whole. He further contended that the respondents neither urged malafides against the complainant or the police and their apprehended arrest being unconnected with undue harassment or humiliation, they were wrongly admitted to pre-arrest bail which is granted in exceptional and compelling circumstances. Learned counsel submitted that the ocular evidence is confirmed by the postmortem report as well as injury certificates in respect of the witnesses and there are no reasonable grounds to believe that the respondents did not commit a non-bailable offence. 5. On the other hand Mr. Muhammad Jamil Zubedi learned counsel for the respondents submitted that the respondents were falsely involved on account of enmity; that the prosecution story as made out in the FIR was improbable and unbelieveable; that there being cross cases between the parties resulting into injuries to the party of the respondents and the party of the applicant being admitted to bail, learned Sessions Judge was justified in admitting the respondents to pre-arrest bail as the arrest was motivated by ulterior motives. 6. There is no doubt that place of incident in both the cases is one and the same but there is no denial of the fact that the report lodged ty applicant was prompt in point of time whereas the counter report lodged by Muhammad Qasim was belated by 24 hours and there is no plausible explanation forth-coming for this inordinate delay which would prima facie fend to show that the counter version was after thought and put forward after due deliberations. It is also not disputed that dispute between the parties over the lands including litigation is going on for the last about two years thus the enmity between the parties can be explained as motive for commission of the offence as well as a ground for alleged false involvement. 7. With regard to the instant death of the deceased as a result a£ fire-arm injuries and hatchet wounds is not disputed and is supported by the postmortem report placed on record. The deceased had suffered as many as eight fire arm wounds on different parts of body including left side head and occipital region of the left side with blackening around. No doubt a single gun shot has been attributed to respondent Allah Dino rest of the injuries are explained by the circumstances that these could be caused by pellete emerging from the cartridge as the assailants fired at the deceased from a close range. It is difficult to subscribe to the view of learned counsel for the respondents that after the receipt of gun shot wound at the hands of Allah Dino deceased could not stand or that he could not fire in his self defence. In my view this point involves deeper appreciation of evidence which is not advisable at the stage of bail and the point raised must be left open for determination at the trial after recording evidence. In any event, any expression or opinion though tentative in nature is lively to prejudice case of either of the parties therefore I would purposely refrain myself from making any comment on this aspect of the case., 8. As regards respondent Muhammad Sadiq hatchet injuries are attributed to him which were found on the person of the deceased by the Medico legal officer performing autopsy which contributed towards the cause of death. Even otherwise this respondent would be liable for the act of respondent Allah Dino by reason of sharing of common intention within the meaning of Section 34 P.P.C. 9. Dealing with the contention of the learned counsel for the respondents that in the face of counter versions of the incident respondents were rightly admitted to bail it would suffice to say that the counter FIR was lodged after inordinate delay of twenty four hours and injuries on the person of Uris, Bachoo and Nooro are insignificant and caused by a hard blunt substance are not by itself sufficient to justify the grant of bail. Counter version also suffers from another infirmity that as against eight persons from the side of the applicant allegedly armed with rifles and shot guns not a single fire-arm injury was found on the person of the accused party. 10. Lastly dealing with malafides in the wake of apprehended arrest by the respondents there is nothing on record to show that they were falsely mplicated or that the prosecution was launched with ulterior motive to disgrace or humiliate them. In Murad Khan vs. Fazl-e-Subhan PLD 1983 S.C. 82) it was held that one of the main considerations for grant of prearrest bail is whether the prosecution is motivated by malice so as to cause irreparable injury to a citizen's reputation and liberty. Supreme Court further held that the condition of arrest being for ulterior motives for example that of humiliation and unjustified harassment is a necessary condition for pre-arrest bail. 11. In the subsequent case reported as Zia-ul-Hassan vs. State PLD 1984 S.C. 192) it was ruled that the court has no power to grant bail before arrest unless- all the conditions laid down by there Superior Courts are satisfied, the most essential of them being that the intended arrest would be tainted with malafides which must be specifically stated. 12. In Iqbal Hussain vs. Abdul Sattar (PLD 1990 S.C. 758) in the case of a sudden fight where injuries on the person of accused were so insignificant and on such non-vital parts of the body in so far as the scenario depicted in the case was concerned that it was almost impossible to give any benefit to the accused in respect of injuries for making it a.prima facie case of self defence at bail stage. 13. In Mst. Resham Jan vs. Abdul Rehman (1991 SCMR 1849) accused had been granted bail in a murder case on ground of further enquiry without their being a finding that there are no reasonable grounds for believing that the accused has committed non-bailable offence. Bail granted by the High Court was cancelled. 14. In Sarwar Sultan vs. State (1994 S.C. 133) Supreme Court laid down guidelines for the Courts in the matter of grant of bail after arrest and bail before arrest. It was observed that grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation prosecution case may suffer for want of recovery of incriminating articles and other material which may be necessary to connect him with commission of alleged offence. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. 15. In the present case learned Sessions Judge committed an error by admitting respondents to pre-arrest bail at initial stage of investigation without recording a finding that there are no reasonable grounds for believing that the respondents have not committed the offence alleged against them. Needless to emphasises no case of malafides has been made out. In the aforesaid circumstances even learned Assistant A.G. does not support the order granting bail. 16. The case of respondent Jawaid is however, distinguishable in the sense that he is neither related to the other respondents nor did he commit an overt act in the commission of the offence. In the absence of any active,role attributed to this respondent, his bail was not opposed on behalf of complainant as well before the learned Sessions Judge, he was therefore, rightly granted bail. The bail granted to respondents Allah Dino and Muhammad Sadiq is however, cancelled. They are taken into custody and remanded to Central Prison Hyderabad for production before the learned Sessions Judge Badin, where the case has been sent-up. (K.K.F.) Bail cancelled.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1179 [ Multan Bench] Present: syed zahid husain bokhari, J. GHULAM SHABBIR-Appellant versus STATE-Respondent Crl. Rev. No. 234 of 1995, accepted on 16.4.1996 Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 439-Limitation--Quesiion of—Appeal dismissed as time barred-­ Challenge to-Ground taken by appellant for condonation of delay is not very cogent, but question of limitation should not be taken in hyper technical manner-In case of criminal nature, law of limitation should not be applicable in stricto-senso, because in such cases, question of liberty of a citizen is involved-Law of limitation in criminal case is to be interpreted in a beneficial manner-Held : Rejection of application for condonation of delay and appeal in limine was, not justified and Sessions Judge has not exercised his jurisdiction property-Revision accepted. [Pp. 1180 & 1181] A,B&C Mian Abbas Ahmad, Advocate for Petitioner. Mehr Muhammad Saleem Akhtar, Advocate for State. Date of hearing: 16.4.1996. order Ghulam Shabbir filed this petition under section 439 Cr. PC against the judgment and order dated 30-11-1995 whereby learned Addl : Sessions Judge Kot Addu District Muzaffargarh dismissed the criminal appeal in limine on the ground of limitation and confirmed the conviction under section 458 PPC whereby the petitioner was sentenced to undergo 3 years R.I vide judgment and order dated 29-8-1995 recorded by E.A.C/Magistrate 1st Class Kot Addu District Muzaffargarh in a case FIR No. 32/88 dated 4-4- 1988 of P.S Sanawan District Muzaffargarh. 2. The brief facts which gave rise to the present criminal revision petition are that petitioner and his co-accused Altaf Hussain and Muhammad Rafique were booked in a case FIR No. 32 dated 4.4.1988 under section 458/380 PPC of P.S Sanawan District Muzaffargarh, and were tried by the Haqa Magistrate. Muhammad Rafique co-accused of the petitioner confessed his guilt before the Court on 15-3-1989 and was consequently sentenced to 3 years R.I for offence under section 458 PPC. The petitioner and his co-accused Altaf claimed trial and they were accordingly tried and convicted by the Ilaqa Magistrate and sentenced to undergo three years R.I. Altaf Hussain co-convict of the petitioner filed a separate appeal and the learned addl : Sessions Judge vide his judgment dated 16-10-1995 accepted the appeal and acquitted the accused of the charges framed against him. The petitioner Ghulam Shabbir did not file appeal in time and after the acquittal of his co-convict, he filed appeal against the conviction on 28-11-1995. The petitioner also filed an application for the condonation of delay alongwith appeal. The learned Addl : Sessions Judge dismissed the appeal in limine vide the impugned order dated 30-11-1995, hence this revision petition. 3. It was argued by the learned counsel that the impugned order is illegal, improper and incorrect; that the petitioner is entitled to acquittal on account of principle of consistency; that the prosecution has not been able to prove its case against the petitioner beyond reasonable doubt and that the appeal of the petitioner was not decided on merits and it was disposed of on the technical ground of delay in filing of the appeal which has 'caused grave mis-carriage of justice. 4. Learned counsel for the State argued that appeal was barred by two months and that the petitioner filed bis appeal against conviction after the acceptance of appeal of his co-convict Altaf Hussain and prima facie it was established that the delay in filing of the appeal was mala fide. Further argued that there was no justification to file the appeal in a belated manner. He fully supported the impugned order. 5. I have heard the learned counsel for the parties and gone through the record. No-doubt the petitioner filed a time barred appeal before the learned Addl : Sessions Judge. The petitioner filed an application for the condonation of delay alongwith appeal on the ground that the petitioner could not file appeal within time as he was in the jail and he requested his friends to file appeal on his behalf but they failed to do so. Strictly speaking the ground taken by the appellant for the condonation of delay is not very cogent but in my view, question of limitation should not be taken in a hyper technical manner. In the case of criminal nature, the law of limitation should not be made applicable in its stricto senso because in such cases, question of liberty of a citizen is involved. Liberty of a citizen is very precious right which should be curtailed in accordance with law and the law of limitation should be interpreted liberally than the cases of civil nature where the rights in personal are involved. It is held in PLD 1960 Lah : 85 that- Limitation Act-Sec. 5~to be construed liberally-The delay in filing a criminal appeal should ordinarily be excused u/s. 5 of the limitation Act, in case of this nature because no valuable right accrues to the other party. The State, I believe, would always welcome that justice should be done in the case". Similarly in PLD 19971 Peshawar-1 (DB) it was held that :-- "Where the accused neither applied for, condonation of delay nor showed sufficient cause, High Court entertained time barred appeal as Revision and exercised the powers of appeal". 6. It is thus clear from the above referred authorities that law of limitation in criminal cases is to be interpreted in a beneficial manner. In „ this particular case, learned Addl : Sessions Judge while disposing of the appeal of the co-accused observed that the prosecution has failed to prove beyond any reasonable doubt that actually Altaf Hussain was one of the culprits and acquitted him by extending benefit of doubt. At page 7 of the judgment, learned Addl : Sessions Judge observed that the statements of complainant Faiz Bakhsh PW, Abdul Hameed PW 1 and Abdul Aziz PW., that they had identified the culprits at the spot as accused Altaf Hussain Ghulam Shabbir and Rafique, therefore, cannot be believed. This observation of learned Addl: Sessions Judge clearly shows that there exists grave doubt about the participation of the petitioner in the commission of the offence. This important circumstance is sufficient to deal with the question of imitation, in a liberal manner. Consequently it is held that the rejection of the application for the condonation of delay and the appeal in limine was, not justified and the learned Addl : Sessions Judge has not exercised his jurisdiction properly. 7. This Court while exercising its powers under section 439 Cr. PC can examine propriety and correctness of the orders passed by the subordinate Courts, which is also supervisory in nature. The law leans in favour of adjudication of appeals against conviction on merits. 8. For what has been stated above and for the safe administration of justice, this revision petition is accepted and the impugned order passed by learned Addl : Sessions Judge Kot Addu is set-aside and learned Sessions Judge is directed to decide the appeal of the petitioner on merits either himself or to entrust it to some learned Addl : Sessions Judge for disposal within 30. days of the receipt of this order. The office shall immediately transmit the copy of this order and record of the Lower Court to the learned Sessions Judge Kot Addu. K.K.F. . Revision accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1182 Present: ahmad saeed awan, J. MUHAMMAD AKRAM-Petitioner versus STATE-Respondent Crl. Misc. No. 677/B/1996, accepted on 22.4.1996. Bail- —-S. 497 Cr. P.C.--Bail~Grant of--Prayer for--0ffence u/S. 302/34 PPC-- Two co-accused have been got discharged by police being found innocent while 3rd one's pre-arrest bail has been confirmed-It is a case of no evidence-Principle of consistency demands that petitioner should also be released on bail in view of act (murder) being done in GAairof-Bail granted. [P. 1183] A Mr. Mumtaz Hussain Malik, Advocate with Mr. Muhammad Ilyas, SaeedAlvi, Advocate for Petitioner. Mohassan Raza Qazlbash, Advocate for State. Date of hearing: 22.4.1996. order The petitioner through this Crl. Misc. No. 677/B/96 seeks bail after arrest under Section 497 Cr. P.C. in case F.I.R. No. 68/95 dated 23.7.1995 registered under Sections 302/34 P.P.C. with Police Station Johar Town, Lahore. 2. As per F.I.R., facts of the case are that on 23.7.1995 at 11.330 p.m. (night) the petitioner alongwith this two brothers allegedly murdered Mst. Azra their sister and one Ijaz Ahmed son of the complainant in the room of their house; the petitioner was arrested in the case and has been confined since 9.8.1995 in the Judicial lock-up. 8. Learned counsel for the petitioner contended that the petitioner accidently killed both under Ghairat as he had seen his sister Mst. Azra in a compromising condition with Ijaz Ahmed, further contended that the legal heirs of deceased Azra have granted pardon (afw) to the petitioner and the co-accused's pre-arrest bail has already been confirmed by this Court in Crl. Misc. No. 4182/B/95 while Bashir Ahmad and Muhammad Hanif co-accused where found innocent and were got discharged by the police; as a rule of consistency the petitioner is entitled to the grant of bail. 4. The learned State counsel assisted by the learned counsel for the complainant controverted the arguments of learned counsel by contending that the petitioner had been specifically named as the murderer; the F.I.R. was lodged promptly; story of seeing both the deceased in a compromising condition was a concocted story and the offence clearly falls within the prohibitory clause of Section 497 Cr. P.C. and that the petitioner thus did not deserve the concession of bail. 5. From a bare reading of the F.I.R. and perusal of inquest report; the plea of having acted under Ghairat stands spelt out; further the defence plea is being supported from the material collected during the course of investigation; even the F.I.R. itself sufficiently demonstrates that the petitioner's plea about the compromising position could have prompted him to kill both the accused and further no motive has been ascribed to commit murder. 6. In a similar case like in hand, reported as Muhammad Siddique vs. The State (P.L.D. 1994 Lahore 19) it was held that :-- "It is a principle too well established by now that the defence plea, if any, can be considered for the purpose of grant or otherwise of bail. The state of law a it exists in our country does make a definite allowance for the people acting under grave and sudden provocation. ". 7. In Crl. Misc. No. 2197/B/1995 wherein the facts were identical; the learned Judge of the High Court following the dictum laid down in supra case of Muhammad Saddique vs. The State granted bail to the petitioner, no one either respectable or a person of low status to certain elements of our society, would not tolerate such a situation where a young girl of his dearest is found in compromising position with some one else; which is worst sort of sudden provocation. 8. Admittedly two-co-accused have been got discharged by the police being found innocent while the 3rd one's pre-arrest bail has been confirmed by this Court; when similar role of murder was assigned as none had seen occurrence; in fact is a case of no evidence; the principle of consistency demands that the petitioner should also be released on bail in view of act eing done in Ghairat. The petition is allowed and the petitioner is admitted to bail subject to his furnishing the bail bonds in the sum of Rs. 1 ,00,000 /- ith two sureties in the like amount to the satisfaction of A.C./Deputy Magistrate, Lahore . K.K.F. Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 1184 (DB) [Circuit Court Hyderabad ] Present: abdul majeed khanzada and ghulam ha!der lakho, JJ. ALI AKBAR—Applicant versus STATE-Respondent Cr. B.A. No. 109 of 1996 dismissed on 7.5.1996 Bail-- —S. 497--Cr. P.C.--Bail--Grant of--Prayer for--Offence U/Ss. 365-A, 302, 147, 148, 149, 336 PPC and 13 (D) Arms Ordinance 1965 and 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979— Since offences fall within prohibitory clause and important witnesses such as abductee who remained with culprits is yet to be examined- Held: High Court is of the view that this is not stage to allow bail- Petition dismissed. [P. 1185]A Mr. S. NasirAli Shah Bukhari, Advocate for Applicant Mr. A. Lateef Ansari, Asstt. A.G. for State. Date of hearing: 7.5.1996. order Abdul Majeed Khanzada, J-This is a second bail application on behalf of the applicant. Prior to this Cr. Bail Application No. 297/1993 was filed on behalf of the applicant which was dismissed by a Division Bench of this Court on 12.8.1993. The brief facts of the case are that on 16.5.1991 at about 8-30 p.m. seven person in a Suzuki van entered the Attdk at Shoukat AH when he was situating with his brother Akhtar Ali Khan, Nano Kh«n son of Shabrati; Jangsher son of Din Muhammad Malik and Liaquat son of Muhammad Pariyal Mangannar. All the seven pel-sons got dawn from the Suzuki van. Out of them five were armed with Kalashinkovs while two were armed with Dandas and they were wearing Malashia dothes. One of the assailant asked who was Shoukat Ali on which they replied that he had gone to Islamabad to'see his relation and was not available. One of them who had muffled face pointed out Shoukat Ali, the Chairman and gave one lathi blow on his head. They caught hold of Shoukat Ali and put him in the Suzuki van <4ad.t3ig£Lta siacL t&a van. but the Suzuki van did not start and then they tried to take him out from the eastern gate as there were some people at the eastern gate they did not go through it and returned. The dacoits armed with Kalashinkovs started firing in the air, on which, his son Bilawal and nephew Noman came running from the house and the dacoits also took them by their arms to Tando road when Muhammad Din gave hakals from behind that why they were kidnapping Shoukat Ali Chairman, his son and nephew. They opened the burst of Kalashinkov which hit Muhammad Din on his back side and he died on the spot. The armed dacoits took Shoukat Ali, his son Bilawal and nephew Noman and covered some distance and kept on firing. They then after moving for two furlongs stopped and robbed them of their cash and belongings. Shoukat Ali was then left for arranging money. He returned to MehrabJJur while on his way Mehrabpur police met him and they were informed of the incident He went to Police Station and lodged the report. After about three and half months of the incident the dacoits released two boys. The boys who were released stated in their statements ' under section 161 Cr. P.C. that the present applicant met them on they way on the third night. Police after unusual investigation sent up the application to stand trial in the Court of Judge, Special Court (STA) Nawabshah. The main contentions of the learned counsel are that complainant Shoukat Ali has been examined who has not implicated the applicant but perusal of the evidence would reveals that he has not exonerated the applicant. He has further argued that no identification parade who held through P.W. Mazhar Ali. He has admitted that identification parade was held through Noman one of the abductee and the present applicant was rightly picked up. Both the abductees were returned after three months and their statements under section 161 Cr. P.C. were recorded on 25.8.1991 while their 164 Cr. P.C. statements were recorded on 18.8.1992. The present applicant was arrested on 17.3.1992 by Mehrabpur Police. After identification through the witnesses he was arrested in the present crime FIR No. 28 of 1991 and was challaned. Mr. Abdul Lateef Ansari learned Assistant A.G. has opposed the bail application and argued that first bail application was rejected on 12.8.1993 by a Division Bench of this Court and no fresh ground has been shown to review that order of the same Bench. According to him this is a third bail application in the trial Court He has further argued that most important witness and abductee Bilawal and the Investigating officer remains to be examined. Since the offence is under sections 365-A, 302, 147, 148, 149, 336 PPC and 13(d) Arms Ordinance and 17(3) of Offences Against Properly (Enforcement of Hudood) Ordinance 1979 which fall within the prohibitory clause and some important witnesses such as the abductee Bilawal who remained with the culprits for about three and half months is yet to be examined. We are of the view that this is not the stage of allow this application which is accordingly dismissed. (K.K.F.) Appeal dismissed

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1186 Present: R.M. khueshid, J. MUHAMMAD ASHRAF-Petitioner versus STATE-Respondent Crl. Misc. No. 555/B/96, dismissed on 10.4.1996 Bail- —-S. 497 Cr. P.C.-Bail--Grant of»Prayer for--Offence U/S. 10/11 & 16 of Zina (Enforcement of Hudood) Ordinance 1979—Genuineness of Nikah Nama can only be gone into at time of trial of case-Veracity of testimony of abductee can only be tested after she appears or is produced in trial Court as a witness—Abductee has clearly implicated petitioner to have prepared a forged Nikah deed and has denied her marriage-Challan has already been sent to court-Bail refused. [P. 1187] A Mr, Ejaz Anwar, Advocate for Petitioner. Mr. Ishfaq Ghuman, Advocate for State. Mr. Ghulam Murtaza, Advocate for Complainant. Date of hearing: 10.4.1996. ORDER A case under Section 10/11/16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 was registered against the petitioner on the ground that he alongwith others, abducted Salina Bibi and committed Zina with her. The learned counsel for the petitioner has submitted that the petitioner and the said lady were validly married vide Nikah Deed dated 9.11.1995 and as such they were residing as husband and wife. In this context it was further submitted that Mst. Salam Bibi had filed a writ petition No. 16365/95, in which she contended that she was earlier married to one Muhammad Ismail and out of that wedlock two children were born to her. The aforesaid Ismail divorced her on 10.3.1995 vide divorce deed, whereupon she remarried on 19.11.1995 with the present petitioner. That writ petition is yet pending adjudication. It is, therefore, submitted that prima facie no offence of zina is made out, as such being a case of further inquiry, the petitioner is entitled to post arrest bail. 2. The learned state counsel has pointed out that Crl. Misc. No. 1276/H/1995 was instituted by one Muhammad Yousaf, brother of the petitioner against S.H."O., Police Station Sadar Sheikhupura with the plea that Mst. Salma Bibi was illegally detained by the latter. In pursuance of the proceeding in the aforesaid Criminal Miscellaneous detenue, Mst. Salam Bibi appeared in this Court on 6.2.1996 in company of her father and made statement that she was forcibly abducted by the petitioner, Muhammad Ashraf with the help of others. She also alleged that her thumb impression , on the plain paper was obtained after she was taken away. She "denied to have affixed her thumb impression on any Nikah Deed. She finally deposed that since she was residing with her father, therefore, she would like to continue residing with him. In the light of the statement made by Mst. Salma Bibi, alleged abductee, a detailed order was recorded in the above referred Criminal Miscellaneous, in which she was allowed to reside with her father as prayed by her. 3. When confronted with the above situation, the learned counsel for the petitioner contended that there are two different versions made by Mst. Salma Bibi. In one statement she has claimed to be married with the petitioner and in her other statement she denied to be married with the petitioner. On these premises it was alleged by the learned counsel for the petitioner that it had become as case of further inquiry and as such the petitioner should be admitted to bail. 4. I have considered the above contentions and find that genuineness or otherwise of Nikah Nama can only be gone into at the time of trial of the case. Veracity of the testimony of Mst. Salma Bibi can only be tested after she appears or is produced in the trial court as a witness. At present she has clearly implicited the petitioner to have prepared a forged Nikah Deed and has denied her marriage with him. The challan has already been sent to the court. The petitioner has, therefore, no case of bail at this stage. The petition is accordingly dismissed with the direction that the learned trial court shall dispose of the case within three months, failing which the petitioner may repeat bail petition in the appropriate forum. (K.K.F.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 1187 Present: zeenat khan, J. INAYATULLAH KHAN-Petitioner versus STATE-Respondent Crl. Misc. B. No. 16 of 1996 accepted on 18.3.1996 (i) Bail- —-S. 497 Cr. P.C.-Bail-Grant of-Prayer for-Offence U/Ss. 302/34--Provisions of sections 5 (1) and 5(A) of Suppression of Terrorist Activities (Special Courts) Act, 1975 have not been strictly complied with—Medico legal report does not show injury attributed to accused to have been extended to body cavity, nor it has caused any fracture of bone, nor any impairment temporary or permanent of any organ of body-Accused is entitled to a lenient treatment-Bail granted. [P. 1189] A (ii) Bail-- —S. 497 Cr. P.C.-BaU-Grant of--Prayer for-Offence U/Ss. 302/34--Abscondence is not an absolute rule for refusal of bail to an accused when he is otherwise entitled to it on merits-Bail granted. [P. 1189 ]B Mr. S. Zafar Abbas Zaidi, Advocate for Petitioner. Mr. Muhammad Saleem Khan, Advocate for State. Date of hearing: 18.3.1996. judgment Inayatullah Khan son of Makhdoom Jan, petitioner herein, seeks his release on bail in case F.I.R. No. 96 dated 10.11.1993 registered at Police Station Dadiwala, wherein he is charged under Sections 324/34 PPC for having caused grievous injury to the complainant Afsar Khan by firing at him in common intention with the other co-accused. He has been refused bail by the forum below and hence this Court for the same relief. 2. I have considered the arguments advanced on either side and carefully perused the record. 3. Learned counsel appearing for the State has vehemently opposed the grant of bail on the ground that the case against the accused is exclusively triable by the Special Court and in view of the provision contained in the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called as the Act), the petitioner is not entitled to the concession of bail and there is sufficient material on record to connect him with the commission of the scheduled offence, besides the fact that the accused/petitioner remained fugitive from law for a considerable long time. 4. The instant case was registered on 10.11.1993 and the accused/petitioner was arrested on 16.12.1995. The investigation was not completed within fourteen days as required by Section 5(1) of the Act ibid, viz-a-viz the trail was also not concluded speedily within the meanings of Section 5-A of the Act. The adjournments in the case have been frequently granted for more than two days which is also violative of the provisions contained in subsection (2) of Section 5-A of the Act The provisions of a Special Law should not be always taken against an accused so stringently so as to bring him down to the category of a subject rather than a citizen who, without being a terrorist, might have acted or re-acted in response to the strong and normal impulses of his own motives and enmities, subjectively justified. A Special Law can no doubt be enacted to provide certain special behaviours towards certain accused as it was in case of Suppression of Terrorist Activities Act, but that law requires to be applied as a whole. No pick and choose can be allowed for the benefit of the prosecution on the one hand and detriment of the accused on the other. If the law contains specific provisions that imperatively provide for the submission of challan within a period of fourteen days and for the conduct of trial in a speedy manner with day-to-day hearing. If all these provisions, even if stringent, are applied together and at one time, there is a strong likelihood of final decision of the case even before the accused could feel to be released on bail. In the instant case, the provisions of Sections 5(1) and 5--A of the Act aforesaid have not been strictly complied with. The injured was examined by the Doctor on 10.11.1993 and the medico-legal report does not show the injury attributed to the accused to have been extended to the body cavity, nor it has caused any fracture of the bone, nor any impairment temporary or permanent of any organ of the body and thus the accused is entitled to a lenient treatment. 5. As far as the abscondence is concerned, it is also not an absolute rule for the refusal of bail to an accused when he is otherwise entitled to it on merits. 6. In such circumstances, the petitioner is admitted to bail provided he furnishes bond in the sum of Rs. one lac with two sureties each in the Uke amount to the satisfaction of the trial Court, who shall see that the sureties are local, reliable and men of means. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 1189 Present: javaid nawaz khan gandapur, J. ABDUL QAYYUM-Appellant versus STATE-Respondent Crl. Appeal No. 2 of 1996, accepted 14.3.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 367»0ffence U/S. 324 Qisas and Diyat Ordinance 1990~Convict for- Challange to~Contention that impugned judgment recorded by MIC, empowered U/S. 30 Cr. P.C. is in violation of mandatory provisions/ requirements of section 367 Cr. P.C.-Therefore, it is not a proper judgment at all-After having gone through record of case with same degree of care and going through provisions of Section 367 Cr. P.C. High Court tend to agree with contention-Impugned judgment and sentence awarded to appellant is set aside and case remanded-Appeal accepted. [Pp. 1190 & 1191] A, B & C Mr. Sinaullah Khan Gandapur, Advocate for Appellant. Mr. Muhammad Khan Khakwani, Advocate for State. Date of hearing: 14.3.1996. judgment The learned counsel for the appellant, at the very outset, contended vehemently that the impugned judgment dated 29-10-1995 recorded by Mr. Hidayatullah Khan, E.A.C., Sheranis /Magistrate 1st Class, empowered U/S. 30 Cr. P.C., is in violation of the mandatory provisions/requirements of Sec. 367 Cr. P.C. Therefore, it is not a proper judgment at all. The learned counsel for the appellant was of the view that a judgment should invariably discuss the merits/demerits of the statements of the witnesses, with reference to the charge and that a "proper judgment" must specify the points for determination and the reasoning of the Court for such determinations. The trial Court is, therefore, not only obliged but is under a statutory duty to thoroughly examine all the evidence adduced by the parties, as well as their arguments, and to appreciate the same according to law. Normally minor omissions and commissions are curable and could be ignored by the appellate Court but on account of failure to specify the points of determination, absence of reasons for decision about the contentions raised in the matter or a total lack of reasoning, constituted a material defect of judgment which could not be conveniently overlooked. In other words, a judgment which is not lucid, complete, self contained and unimbigous does not fulfil the requirements of Sec. 367 Cr. P.C. Accordingly the conviction recorded on the basis of such judgment cannot be sustained/upheld. The High Court in the circumstances could set aside the conviction and sentence and send back the case for re-writing of a proper judgment. 2. In this case, the Magistrate 1st Class (empowered under Sec. 30 Cr. P.C.) has adjudicated upon the case in the following terms : -- "All the P.Ws. examined before this Court during trial and the P.Ws. already examined by the Court in the abscondence period of the accused fully supported the version of the prosecution case against the accused and there seems no material contradiction in the statements of the P.Ws. in the cross examinations put on them by the defence. I came to the conclusion that the prosecution case against the accused is fully proved and the accused is guilty of offence U/S. 324 Qisas & Diyat Ord. I, therefore convict and sentence him for a period of five (5) years R.I. and with a fine of Rs. 5000/- (five thousand) or in default he should be kept behind the bar for a further period of two (2) months S.I. The accused is benefited U/S. 382-B Cr. P.C." 3. When ., confronted with this situation, the learned counsel for the State frankly conceded and rightly so, that the impugned judgment could not be termed as a "proper judgment" within the meaning of Sec. 367 Cr. P.C. 4. After having gone through the record of the case with some degree of care and going through the provisions of Sec. 367 Cr. P.C. I tend to agree with the contention of the learned counsel for the parties. 5. Accordingly the present appeal is accepted, the impugned judgment and sentence awarded to the appellant is set aside and the case remanded to the Senior Civil Judge/M.I.C. (empowered U/S. 30 Cr. P.C.) D.I. Khan with the directions to summon the parties and after hearing them, decide the case by writing a proper judgment, in accordance with law, within a period of two (2) months. 6. The office is directed to send the record to the Senior Civil Judge immediately. Cr. Misc. No. 20/96 With the mutual consent of the learned counsel for the parties this petition for the condonation of delay for six (6) days is accepted in the circumstances of this case. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 1191 (DB) [Circuit Court Hyderabad ) Present: shah nawaz awan and rana bhagwan das, JJ. MIRZA MAZHAR ALt-Applicant versus STATE-Respondent Crl. Bail Application No. 92 of 1996, accepted on 1.4.1996 Bail- —S. 497 Cr. P.C.--Bail«Grant of-Prayer for--Offence U/s 20 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Suppression of Terrorist Activities (Special Courts) Act, 1975-Since offence under which applicant is charged with is not a scheduled offence, it is evident that Court constituted under Suppression of Terrorist Activities (Special Courts) Act has no jurisdiction to proceed with trial of accused-Trial Court is, therefore, directed to return charge-sheet for presentation to court having jurisdiction—Applicant is admitted to interim bail with a direction to appear before Court having jurisdiction- Order accordingly. [P. 1193] A Mr. Ghulam Moinuddin Baloch, Advocate for Applicant. Mr. Abdul Lateef'Ansari, A.G. for State. Date of hearing: 1.4.1996. order Shah Nawaz Awam, J-Applicant above named was booked under section 20 Offences Against Property (Enforcement of Hudood) Ordinance vide FIR bearing No. 64/1994 registered at Police Station Hussainabad to face his trial before the Court of learned Judge, Special Court-I (STA) Hyderabad. Bail application filed on his behalf was rejected vide order dated 15.2.1996, hence this application. 2. Briefly stated facts of the prosecution case are that on 13.9.1995 at 1430 hours during patrolling near Nursery Chowk SHO Hussainabad P.S. came to know from general public that some dacoits have sancted cash from cashier of Fateh Garments. On receiving such information he alongwith his subordinate reached Fateh Garment at Unit No. 4 Latifabad and contacted the owners of the garment factory. The allegedly informed him that about Rs. 8.25.000/- were robbed at the point of arms by unknown dacoits near Bhitai Hospital from their Cashier Muhammad Hanif Memon and Security Guard Monwu- Ahmed as well as Abdul Salam but they would lodge the FIR after consultation. Thereafter they enquired about cashier Muhammad Hanif but they could not trace him. On 18.9.1995 SHO received information throogn spy that complainant and accused party were going to settle their dispute therefore he called Cashier Muhammad Hanif for interrogation who disclosed that Mazhar Mirza, Zulfiqar Dahiri and Muhammad All Rind riding on a motor cycle duly armed with T.T. Pistols had snatched ihe cash from him but due to fear of the accused persons he had not lodged the report. It is alleged that SHO then lodged report on behalf of State and arrested the present applicant on 23.9.1995 and during interrogation a T.T. Pistol and two motor cycles were secured from their possession. After completion of investigation accused was challaned in the Court of law. 3. Mr. Ghulam Moinuddin Baloch learned counsel for the applicant contended that there is delay of about four days in lodging the FIR and that alleged witnesses Muhammad Hanif, Huzoor Ahmed and Muhammad Islam Qaimkhani had sworn their affidavits in which they have completely exonerated the applicant from commission of the offence. Besides no identification parade to identify the applicant have been arranged so far till the date of the arrest of accused. According to learned counsel recovery of incriminating articles or the alleged T.T. Pistol has not been made from the applicant therefore he is entitled to concession of bail. 4. Mr. Abdul Lateef Ansari Assistant A.G. has frankly argued that the applicant being charged with an offence under section 20 Offences Against Property (Enforcement of Hudood) Ordinance the said offence is not a scheduled offence therefore the Judge, Special Court No. 1 (STA) Hyderabad is not competent to try the applicant for this offence. He has expressed no objection if the applicant in released on bail. 5. Since the offence under which the applicant is charged with is not a scheduled offence, it is evident that the Court constituted under the Supersession of Terrorist Activities (Special Courts) Act has no jurisdiction to proceed with the trial of the accused. Trial Court is therefore directed to return the charge sheet for presentation to the Court having jurisdiction. In the meanwhile the applicant is admitted to interim bail on his furnishing a solvent surety in the sum of Rs. 50,000/- and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court with a direction to appear before the Court having jurisdiction and competent to try the case against the accused. (K.K.F.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1193 [ Multan Bench] Present: SYED ZAHID HUSAIN BOKHARI, J. MUHAMMAD IQBAL-Petitioner versus STATE-Respondent Crl. Misc. No. 2106 of 1993 accepted on 21.4.1996. Bail-- —S. 497(2) Cr. P.C.-Bail-Grant of-Prayer for--Case of further inquiry-­ Offence U/S. 364/34/302-Petitioner and other accused are not related inter-se—He is not connected with motive of occurrence in any manner, except last seen evidence and pointation of place of occurrence no cogent evidence exists against petitioner--I.O. after conducting thorough investigation opined that co-accused had enmity with deceased whereas petitioner had no such enmity-I.O. declared petitioner as innocent- Opinion of Police though not binding upon court but being adverse to prosecution creates a reasonable doubt which is to be resolved in favour of petitioner even at stage of bail-Held : Opinion of police if based on 1 sound material brings case of petitioner within ambit of section 497(2) Cr. P.C.-Bail granted. [Pp. 1194 & 1195] A 1984 SCMR 429 & 521 rel. Mr. MazharAli, Bhatti, Advocate for Petitioner. Mr. Zafar Mahmood Anjum, Advocate for State. Date of hearing: 21.4.1996. order Muhammad Iqbal petitioner has sought bail after arrest is case FIR No. 256/95 dated 23-8-95 under sections 364/34/302 PPC of P.S. Luddan Distt Vehari registered on the complaint of Akhtar Hussain against the petitioner and two others for the abduction of his brother Safdar Hussain on 21-8-1995 from his house situated in the area of Chah Baluchan situate at a distance of 12 miles from the P.S. It is stated in the FIR that Muhammad Iqbal petitioner and Ghulam Ali co-accused took away Safdar Hussain in car No. 8341-RIG driven by Muhammad Iqbal petitioner in the presence of Haider Hussain, Iqbal Hussain and the complainant. Safdar Hussain did not return to the house. Thereupon complainant alognwith Shabbir Shah and Lai Shah PWs started search of the deceased and came to know that Muhammad Iqbal and Ghulam Ali co-accused took Safdar Hussain to the house of Muhammad Yasin. They contacted him who did not given them satisfactory reply. According to the complainant, Safdar Hussain had friendly relations with Ghulam Ali co-accused who was on visiting terms at his house. He cast suspicion that on account of illicit liaison of Safdar Hussain with Mst. Bashiran wife of Ghulam Ali accused, either had committed murder of Sadar Hussain or had concealed in order to murder him alongwith his co-accused Muhammad Iqbal and Muhammad Yasin. Initially the case was registered under sections 364/34 during the investigation on the recovery of dead body, offence under section 302 PPC was added. Petitioner was arrested and his plea for the grant of bail was rejected by the learned Addl. Sessions Judge. Hence this petition. 2. Learned counsel for the petitioner argued that none has seen the petitioner committing the murder of Safdar Hussain deceased; that the petitioner has no motive whatsoever to commit the present occurrence: that the dead body was not recovered on the exclusive pointation of the petitioner; that the petitioner has been found innocent during the investigation; that the petitioner was a taxi driver and did not know about the intention of his co-accused to commit a crime. 3. Learned State counsel argued that the petitioner is named in the FIR. He carried the deceased from his house to the house of Muhammad Yasin co-accused and that he shared the common intention of his co-accused and that the offences alleged against the petitioner fall within the prohibitory clause of section 497 Cr. P.C. 4. I have heard the learned counsel for the parties and have gone through the record with care. 5. Muhammad Iqbal petitioner and other accused are not related inter-se. He is not connected with the motive of the occurrence in any manner. Except the last seen evidence and the pointation of place of occurrence no cogent evidence exists on the file against the petitioner. The prosecution could not collect ocular evidence to prima facie establish that petitioner as a matter of fact committed murder of Safdar Hussain. The 1.0. after conducting through investigation opined that Muhammad Yasin and Ghulam All had enmity with the deceased whereas the petitioner had no such enmity with the deceased. Petitioner produced number of persons in his defence and on the basis of the statements recorded, the I.O. declared the petitioner as innocent. These facts are mentioned in report prepared under section 173 Cr. P.C. by the Inspector SHO on 24-9-1995. It has been held in 1984 SCMR 429 and 521 that opinion of the police though not binding upon the court but being adverse to the prosecution creates a reasonable doubt which is to be resolved in favour of the petitioner even at the stage of bail. It was further held that the opinion of the police if based on sound material brings the case of the petitioner within the ambit of section 497(2) Cr. P.C. 6. In this case the police has collected sufficient material to form its opinion about the innocence of the petitioner. He has been found innocent during the investigation. 7. For what has been stated above, it appears to me that there are no reasonable grounds for believing that the accused has committed a nonbailable offence but there are sufficient grounds for further enquiry into his guilt. Resultantly the petitioner is held to be entitled to the grant of bail after arrest in terms of section 497(2) Cr. P.C. This petition is accepted and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs. one lac with two sureties each in the like amount to the satisfaction of learned Addl. Sessions Judge, Mailsi. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1195 [ Multan Bench] Present: SYED ZAHID husain BOKHARI, J. Mst. FAJRI-Petitioner versus STATE-Respondent Crl. Misc. No. 568-B of 1996, accepted 21.4.1996. Bail- -—S. 497-Cr. P.C.-Bail-Grant of-Prayer for-Offence U/S. 10/16 Zina (Enforcement of Hadood) Ordinance VII, 1979-Language of Article 16 of Zina Ordinance,. 1979 no doubt exempts a woman, being subject of enticement, from being tried and punished as an accused-It is person who effects enticement is to be tried or punished for commission of offence-A woman cannot entice herself-Petitioner is in judicial lock-up and no more required for further investigation-Offence under Article 16 does not fall within prohibitory clause of section 497 Cr. P.C.--Held : Grant of bail in offences punishable with imprisonment for less than 10 (ten) years is a rule and refusal an exception-Bail granted. [P. 1197] A Mr. Masud Arif Butt, Advocate for Petitioner. Mr. S.M. Rashid, Advocate for State. Date of hearing: 21.4.1996. order Mst. Fajri filed this petition for the grant of bail after arrest in case FIR No. 34/96 dated 14-2-1996 under Article 16/10, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 of P.S. Basti Maluk. DLsrt : Multan registered on the complaint of Karim Bakhsh brother of Msi. Fajri petitioner against the petitioner and Muhammad Yasin co-accused. It is mentioned in the FIR the petitioner, a married woman having 6 children eloped with her paramour Muhammad Yasin, a young man of 25 years. 2. Learned counsel for the petitioner argued that a case was registered after an un-explained delay of about 4 months; that there was no evidence as to the elopement or commission of zina; that the petitioner legitimately married Muhammad Yasin co-accused after having divorce from her first husband and that the petitioner being a female deserves to be released on bail under section 497(1) Cr. P.C. 3. Learned State counsel argued that the petitioner is named in the FIR with specific role; that she being a married lady could not contract second marriage without obtaining valid divorce from the previous husband. Further argued that the Secretary of the Union Council concerned Las reported that the alleged talaq proceedings were fake and fabricated. 4. I have heard the Learned counsel for parties and "nave gone through the record. 5. I enquired from the police official who has brought the record that whether any offence under Article 10, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 has been added. He replied in the negative. The learned counsel for the petitioner has also sought bail for an offence under Article 16, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979. Article 16 ibid reads as under :- Enticing or taking away or detaining with criminal intent a women : - Whoever takes or entices away any woman with intent that she may have illicit inter-course with any person or conceals or detains with intent any women, shall be punished with imprisonment of either description for a term which may extend to seven years and with whipping not exceeding thirty strips, and shall also be liable to fine. 6. Language of Article 16 of the Ordinance, no doubt exempts a woman, being subject of enticement, from being tried and punished as an accused. It is the person who effects enticement is to be tried or punished for the commission of the offence under this Article. A woman cannot entice herself. It was so held in 1991 PSC FSC 1365. Further the petitioner being a - ady is also entitled for the grant of bail under section 497(1) Cr. P.C. The petitioner is in the judicial lock up and no more required for further investigation. The refusal of bail to the petitioner at this stage will amount to punishment in advance because offence under Article 16 is punishable with imprisonment of either description for a term which may extend to seven years which does not fall within the prohibitory clause of section 497 Cr. P.C. It was held in PLD 1995 SC 34 that 'grant of bail in a bailable offence is a right while in non-bailable offences grant of bail is not a right but concession/grace .... grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception.' 7. In may considered opinion there exist no exceptional and extra ordinary circumstances which would justify decline refusal of bail to the petitioner. For what has been stated above, this petition is accepted and the petitioner Mst. Fajri is admitted to bail after arrest provided she furnishes bail bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of Sessions Judge/Trial Court, Multan . (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1197 [ Multan Bench] Present: syed zahid hussain bokhari, J. Mst. SHAHNAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 506-B of 1996, accepted on 7.5.1996. Bail- —-S. 497 Cr. P.C .» Bail»Grant of--Prayer for-Offence U/S. 16/11/10 Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979-No body has seen petitioner committing Zina with her co-accused--Husband of petitioner came to Pakistan on 25.12.1995 and case was registered on 10.1.1996 with an unexplained delay of 17 days-Petitioner was medically examined when her husband was present in Pakistan-No semen was sent to Laboratoiy for grouping which facility of course is available in Pakistan-This fact can validly be considered against prosecution even at stage of bail-Article 16 does not fall within prohibitory clause of section 497 Cr. P.C.--Petitioner being a lady is entitled to grant of bail under first proviso to section 497(1) Cr. P.C.-Bail granted. [P. 1198] A Malik Muntazir Mehdi, Advocate for Petitioner. Mr. Khawar Masud Tipu, Advocate for Complainant. Sh. Gul Muhammad, Advocate for State. Date of hearing : 7.5.1996. order Shahnaz Bibi petitioner sought bail after arrest in case FIR No. 9/96 dated 10-1-1996 under sections 16/11/10 Offence of Zina t Enforcement of Hadood) Ordinance VII, 1979 of P.S. Mumtazabad Distt : Mulian registered against the petitioner and Muhammad Shafique. 2. It is alleged in the FIR that Shahas Bibi petitioner is married woman having two children eloped with Muhammad Shuf. :ue co-accused in the absence of her husband, Ghulam Yasin, who was away to Saudi Arabia to earn his livelihood She was seen in the company of said Shafique by Muhammad Hanif and Muhammad Feroze witnesses who passed this information to her father-in-law Allah Bakhsh complaina-nt. She was apprehended on 16-1-1996 alongwith her paramour Muhammad Shafique. 3. It was submitted by the learned counsel for the petitioner that none has seen the petitioner leaving the house of her husband with Muhammad Shafique ^o-accused and, therefore, prima facie mere exist no evidence to make out a case under section 16, Offence of Zina lErJorcement of Hadood) Ordinance VII, 1979. Further argued that the police failed to collect any evidence direct or otherwise to attract the mis-chief of section 10(3) ibid. Also argued that petitioner being a lady is entitled to the grant of bail especially when she is being kept in judicial lock up and no more required for further investigation. 4. Learned State counsel and the complainant counsel argued that the petitioner had committed a heinous offence and the offences alleged against her fall within the prohibitory clause of sec. 497 Cr. P.C. 5. I have heard the learned counsel for the parties and have gone through the record. 6. Admittedly no body has seen the petitioner committing zina wit her co-accused. Husband of the petitioner came to Pakistan on 25-12-1995 and case was registered on 10-1-1996 with an un-explained delay of 17 days. The petitioner has medically examined when her husband was present in Pakistan . No semen was sent to the laboratory for grouping which facility, of course, is available in Pakistan . This fact can validity be considered against the prosecution even at this stage as held in 1987 P.Cr. L. J, 137. The offence under Article 16 ibid is punishable with 7 years only which does not fall within the prohibitory clause of section 497 Cr. P.C. The petitioner being » lady is entitled to the grant of bail as envisaged under first previous to sec. 497(1) Cr. P.C. 1. For what has been stated above, the petitioner is admitted to bail after arrest provided she furnishes bail bond is the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of Sessions Judge/Trial Judge, Multan . The trial Judge is directed to complete the trial within a period of 4 months from today. This petition stands disposed of. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1199 Present: shafi muhammadi, J. ALI HASSAN-Applicant versus STATE-Respondent Crl. Bail Application No. 399/94 accepted on 30.3.1995. Bail-- —S. 497 Cr.P.C.--Bail--Grant of-Prayer for-Offence U/S. 302 Qisas and Diyat Ordinance read with section 34 PPC--Grounds for grant of bail (i) Absence of recovery of alleged used weapon from applicant/accused, (ii) previous enmity of applicant with complainant party, (iii) Mention of name of applicant/accused as witness in case pending against complainant party and (iv) difficulty to put responsibility of causing fatal injury upon applicant if it is believed that he had gun and had fired also- Besides High Court is of the view that case of applicant was basically on same footing as those of co-accused who were granted bail by trial Court-­ Held: Case of applicant falls in clutches of further inquiry attracted by section 497 (2) Cr.P.C-Bail granted. [P. 1201] A & B Mr. Rahim Bux Jamali, Advocate, for Applicant. Mr. Dhanni Bux Dayo, Advocate for State. Date of hearing: 30.3.1995. order Applicant Ali Hassan Mehkani is facing trial alongwith co-accused (i) Nooral (ii) Sattar and (iii) Maqbool in a case registered under section 302 Qisas and Diyat Ordinance read with Section 34 PPC rising out of an F.I.R No. 74/93 lodged by complainant Gul Baig on 27.7.1993 at P.S. Tando Adam, District Sanghar. All the four accused moved an application for their bail before the trial Court (I/C Additional District & Sessions Judge, Shahdadpur District & Sessions Judge Sanghar) who granted bail to accused Nooral, Sattar and Maqbool but declined to give the same concession to applicant Ali Hassan vide his order dated 21.4.1994. Hence the present application. 2. Brief facts of the prosecution story unfolded by the F.I.R. are that on 24.7.1993 complainant Abdul Sattar, his father Muhammad Azeem (murdered in the case), his uncle Shah Muhammad and his maternal uncle Jhando had reached bus-stop Goth by bus after completing their work at Tando Adam. They took tea in a hotel and proceeded to their village via Sui- Kander Canal Path. Deceased Muhammad Azeem was ahead of them at a distance of one acre. It was about 1630 hours when they reached Kot of Lala Ayoob and from there all the four accused, mentioned in para 1 above, appeared armed with guns. AH Hassan was the first one who fired upon Muhammad Azeem and he fell down. Rest of the accused also fired upon him after encircling him. The complainant and his two uncles raised "Hakkals" (means challenged them by raising their voices). Hence the accused, on seeing them ran away, Muhammad Azeem was found lying dead with injuries on his head, chest and left arm. Leaving PWs and the dead body of Muhammad Azeem at the place of incident, the complainant reached the police station to lodge the F.I.R. Police arrested the accused persons and after completing usual investigation challaned them in the Court. Motive behind this murder as reflected by the F.I.R. is that one Jam Mehkani had been murdered about 8/9 months prior to the present incident and the police had challaned Muhammad Azeem (the deceased in the present case) alongwith his two sons. About 3/4 months back Muhammad Azeem, who is also father of the complainant, was released on bail while his two brothers are still in jail. It, therefore, appears that the accused party had taken revenue of that murder. 3. The applicant first tried his fate before the trial Court aJongwith other three co-accvsed to get him released on bail but failed. Hence he preferred the present bail application. The learned counsel for the State has strongly opposed this application on the grounds that it was a broad-day light murder and the name of the applicant/accused was mentioned in the F.I.R. with his specific role. Hence he was not entitled to be released on bail. 4. No doubt that name of the applicant was mentioned in the F.I.R. with his specific role but he was not the only one with these characteristics. The names of other three accused with their specific role were also mentioned in the F.I.R. with their specific role but they were granted bail by the trial court. Neither the State nor the L.Rs of the deceased or the complainant who was the real son of the later Muhammad Azeem, filed any application for cancellation of their bail. The only difference between the case of present applicant and the case of three co-accused, who were granted bail, is this that "The present applicant was alleged to be the first one who had fired upon Muhammad Azeem." The remaining while three accused had allegedly encircled him and started firing upon him. 5. The deceased had seven wounds of entry as per medical report. The charge sheet submitted in this case shows recovery of two guns recovered one each from co-accused Sattar and Maqbool, hence there is nothing on the record to show that any fire-arm was recovered from th present applicant. In these circumstances the trial court could -refuse bail to those accused persons from whom the alleged weapons were recovered and not to the present applicant from whom nothing was recovered. The F.I.R is also silent on the point at least at the present stage as to how many shots were fired by each accused and whose shot proved fatal to the deceased. Similarly it is also difficult to find out at this stage which injury out of the seven injuries was caused by whom. All these factors apparently put equal responsibility on each accused if it is believed that the present applicant had also fired upon the deceased as was narrated in the F.I.R. notwithstanding this reality that no such weapon was recovered from him. 6. Another important factor in this case is the established enmity between the parties. The parties belong to the same tribe. The police has brought on record one copy of a charge-sheet in F.I.R. No. 90/92 which shows deceased Azeem as one of accused alongwith his two sons-one arrested and the other absconder, besides two more absconding accused. The said charge-sheet radiates the present applicant and his father to be the witnesses in that cases which was also registered u/s 302 of Qisas and Diyat Ordinance read with section 34 and 109 PPC. 7. In the light of all those factors the trial court could grant bail to the present applicant too on the principle of consistency after granting bail to remaining three co-accused because neither firing first by an accused can be a ground to refuse bail to an accused nor later firing by any co-accused be a foundation to grant bail to a co-accused. It is only the fatal injury caused by any accused person coupled with other pieces of evidence which can be taken into consideration for the purpose of granting or refusing bail to any of the accused particularly when the number of accused persons is more than one. 8. The collective result of all these factors i.e. (i) absence of recovery of the alleged used weapon from the applicant/accused, (ii) previous enmity of the applicant with the complainant party, (iii) mention of name of the applicant/accused as witness in the case pending against the complainant party and (iv) difficulty to put the responsibility of causing fatal injury upon the applicant if it is believed that he had gun and had fired also etc., leave me with no hesitation to hold that the case of the applicant falls in the clutches of further inquiry attracted by section 497(2) Cr.P.C. Besides the above I am of the view that case of the applicant was „ basically on the same footing as those of the co-accused who were granted bail by the trial Court. 9. Hence he was also entitled for bail on the principle of consistency. Resultantly, the bail was allowed to the applicant on 14.11.1994 by my short order and these were the reasons for doing so. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1202 [ Multan Bench] Present: muhammad naseem, J. MUHAMMAD SHARIF-Appellant versus JAMSHID ALI and THE STATE-Respondent Crl. Appeal No. 333/1995 accepted on 11.4.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 249-A-Offence U/S 452/506 PPC--Acquittal of accused-Challenge to~ When prosecution witnesses do not appear in witness-box as their attendance is not procured by Presiding Officer in ordinary manner or through adopting coercive methods; section 249-A of the Code of Criminal Procedure is not applicable--That fault/loose control/non-serious working of Presiding Officer should not damage case of prosecution for purpose of acquittal of accused under section 249-A of Criminal Procedure—A Magistrate can only acquit an accused where he considers either that charge is groundless or that there is no probability of accused being convicted of any offence—Impugned order fell far from ambit of section 249-A of Code of Criminal Procedure-Held: Impugned judgment of acquittal cannot be sustained-Appeal accepted. [P. 1205] C, D, E & F (ii) Limitation Act IX of 1908-- —S. 5/14 read with Criminal Procedure Code, 1S9S-S. 417';2-A)« Condonation of delay-Contention, delay occasioned as revis-'jii against acquittal filed and followed in Courts of Session in good faith—S. 417^2-A) Cr.P.C. incorpora-ted through amendment vide Act XX of 1994 enforceable from 14.11.1994, whereas the impugned order of acquittal was passed on 21.11.1994-Held: Such amendments of short words remained eclipsed from sight of Bench and Bar because same are neither printed in either Press-media nor in Law Journals in time even though that of much importance-A fit case to condone delay-Delay Condoned. [Pp. 1203 & 1204] A&B Ch. Faqir Muhammad, Advocate, for Appellant. Malik Muntazir Mehdi, Advocate for Respondent Date of hearing: 11.4.1996. judgment Muhammad Sharif appellant-complainant got recorded FIR No. 475 dated 27.10.1992 at Police Station Mumtaz Abad, Multan under sections 452/506 PPC with the allegation that Jamshed Ah' respondent/acquitted accused trespassed his property and criminally intimidated him. After necessary investigation the challan was submitted before the Area Magistrate. On 21.7.1993 Jamshed Ali respondent was charged under sections 506/452 PPC who pleaded not guilty thereto. Thereafter different dates were fixed from 30.10.1991 to 12.9.1994 for recording the evidence. On different dates that Presiding Officer remained on leave or otherwise did not perform the Judicial work due to his executive duties. For some dates the summons of the witnesses were not received back served or unserved. 'Afterwards the learned Sessions Judge, Multan transferred the matter to the Court of Syed Zahid Hussain Qadri, Magistrate 1st Class, Multan who took up the matter for the first time on 30.10.1994 and summoned the prosecution witnesses for 14.11.1994. The summonses were not received back. On 14.11.1994 the trial Magistrate passed the order to procure the attendance of the PWs through bailable warrants in the sum of Rs. 5,000/- each for 21.11.1994. An application under section 249-A Cr.P.C. was earlier submitted on 27.6.1994 and on 21.11.1994, after hearing the parties, due to the non-appearance of the prosecution witnesses Jamshed Ali respondent was acquitted. On 19.2.1995 Muhammad Sharif complainant filed a revision petition against the aforesaid order dated 21.11.1994 which was disposed of on 12.11.1995 by the Additional Sessions Judge, Multan without merits on the ground that against the order of acquittal an appeal is maintainable and that with the revision petition no certificate of the District Magistrate was attached which could make out that the State did not want to file an appeal. Thereafter Muhammad Sharif appellant-complainant filed this appeal before this Court under section 417(2-A) Code of Criminal Procedure on 28.11.1995. It has been averred in the appeal that section 249-A Code of . Criminal Procedure was not applicable in the circumstances of the matter. 2. Alongwith this appeal an application under sections 5/14 of the Limitation Act for condoning the delay has been filed wherein it has been mentioned that the matter was prosecuted/followed before the Additional Sessions Judge in goof faith and that section 417(2-A) Code of Criminal Procedure was incorporated through amendment vide Act XX of 1994 made applicable from 14.11.1994 (printed as PLD 1995 Central Statutes 231). This application/appeal have been resisted by the respondent/acquitted accused. Learned counsel for the appellant argued that the matter was prosecuted before the Additional Sessions Judge in good faith after filing the revision petition especially when the impugned order of acquittal was passed on 21.11.1994 while the long standing procedural law in the matter was amended with effect from 14.11.1994. He added that in the circumstances it is a fit case for condoning the delay. On the contrary learned counsel for the respondent argued that ignorance of law is no excuse and for that reason the appeal having been filed under section 417(2-A) Code of Criminal Procedure after considerable delay has necessarily to be dismissed. I, however, agree with the learned counsel for the appellant. The Code of Criminal Procedure was enforced on 22.3.1898 and the amendment was effected through the incorporation of sub-section (2-A) in section 417 Code of Criminal Procedure through Act No. XX of 1994 with effect from 14.11.1994 (printed as PLD 1995 Central Statutes 21). This Court can safely express its view that such amendments of short words remain eclipsed from the sight of the Bench and Bar for the reason that the same are neither printed either in the press media nor in the law journals in time even though that of much importance. My view finds support from the working of the Additional Sessions Judge even, who disposed of the criminal revision petition filed by the appellant on 12.11.1995. It shows that both the members of the Bench and Bar remained ignorant while the appellant as the revision petitioner followed the matter before the Addl. Sessions Judge in good faith. After the dismissal of the revision petition on 12.11.1995 he filed the appeal on 29.11.1995 and in view of the aforesaid special circumstances of the dispute in hand I agree that due B to the attraction of sections 5/14 of the Limitation Act it is a fit case to condone the delay in the matter of preference of this appeal and I pass an order accordingly. Thus the appeal is held to have been preferred within time. 3. On merits learned counsel for the appellant argued that a perusal of the interlocutory orders has made out that no serious effort was made by any Magistrate including Syed Zahid Hussain Qadri Magistrate 1st Class, Multan to procure the attendance of the prosecution witnesses through ordinary way or through adopting the coercive methods. He added that even though Muhammad Sharif complainant appeared before the trial Court on different dates his presence was not marked and his statement was not recorded. He added that the non-service of the prosecution witnesses due to the laxity of the Presiding Officer of the Court would net attract the provisions of section 249-A Code of Criminal Procedure for the purposes of the acquittal of accused. On the contrary learned counsel for the respondent/acquitted accused canvassed that the prosecution failed to adduce the evidence for a considerable period and for that reason the presumption would be that the prosecution had no material with it so as to connect the respondent/acquitted accused with the alleged occurrence whereby there was no likelihood for his conviction and he has rightly been acquitted under section 249-A Code of Criminal Procedure. 4. Before embarking upon the discussion it would be convenient to reproduce as under section 249-A Code of Criminal Procedure:- "249-A. Power of Magistrate to acquit accused at any stage.- Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence." 5. A perusal of the record maintained by the trial Court has made me to express at the very out-set that the trial has been conducted in a perfunctory manner. Almost all the interlocutory orders are in the hand of the Reader of the Court and have simply been signed by the Presiding Officer. There is no material on record to make out that any serious efforts was made by the Presiding Officer himself to look into the matter of the service of the prosecution witnesses. The summons are prepared by the Ahlmad and through theNaib Court are sent to the Deputy Superintendent of Police .(Legal) for service who further has to despatch the same to the concerned Police Station. No Presiding Officer has gone through the Despatch Register and sought any explanation of his Ahlmad, Naib Court or the Station House Officer of Police Station Mumtaz Abad as to why the summonses were not be ng returned served or unserved. My experience is that such havoc is played by the Ahlmad of the Court to help the accused. It shows the loose control of the Presiding Officer on his staff. From 30.10.1993 onwards the PWs were not served as the summonses were not received back served or unserved. No coercive method was employed to procure the attendance of the prosecution witnesses and it was on 27.6.1994 that an application was filed under section 249-A Code of Criminal Procedure by the accused during the trial for his acquittal due to the non-appearance of the prosecution witnesses. On about six dates the Presiding Officer was not in he chair. The matter was transferred on administrative side by the learned Sessions Judge, Multan to the Court to Syed Zahid Hussain Qadri Magistrate 1st Class, Multan who took up the matter for the first time on 0.10.1994 and summoned the witnesses for 14.11.1994. He did not take the pains as to why the witnesses were not served and as to why the summons were not received served or unserved. On 14.11.1994 he passed the order for the issuance of the bailable warrants of the prosecution witnesses. He did not take the pains and worked in the same perfunctory manner on 21.11.1994. He did not ascertain as to why the bailable warrants of the PWs were not received back served or unserved. It shows that every time no serious attention was being paid for the disposal of the case on merits. Muhammad Sharif complainant has appeared before this Court on eveiy date of hearing and he has taken up the plea that he appeared before the trial Court on every date of hearing, but his presence was not marked. Thus the non-appearance of the prosecution witnesses cannot be said to be due to the laxity of the complainant. Rather the Presiding Officer(s) proceeded in the matter in perfunctory manner. This is with respect to the working of the Presiding Officers and is one aspect of the matter. 6. The other aspect of the matter is that in the aforesaid state of affairs when the prosecution witnesses do not appear in the witness-box as their attendance is not procured by the Presiding Officer in ordinary manner or through adopting the coercive methods; section 249-A of the Code of Criminal Procedure is not applicable. That fault/loose control/non-serious working of the Presiding Officer should not damage the case of the prosecution for the purpose of the acquittal of the accused under section 249- A Code of Criminal Procedure. I am tempted to express that no doubt an accused is the favourite child of law, but keeping in view the shape of scale of justice the complainant is also not devoid of the justice of the Court. As I read the provisions of section 249-A of the Code of Criminal Procedure a Magistrate can only acquit an accused where he considers either that the charge is groundless or that there is no probability of the accused being convicted of any offence. The trial Magistrate did not conclude, rather it was not possible for him to have concluded that the charge was groundless or that there is no probability of the accused being convicted of any offence in the circumstances of this case because the impugned order had been summarily passed upon a denial of opportunity to the prosecution to produce the prosecution witnesses whose attendance had to be procured by the Presiding Officer by adopting all the legal methods. Such denial mounted to the denial of justice itself. My view is that the impugned order fell far from the ambit of .section 249-A of the Code of Criminal Procedure in the circumstances of the material available. Thus the order under appeal represents an absolute illegal exercise of jurisdiction at the cost of justice itself. Section 249-A of the Code of Criminal Procedure has been invoked by the trial Court without any legal justification for the purpose of acquittal of Jamshed AH respondent and I hold that the impugned judgment of his acquittal cannot be sustained. 1. For what has been said above, I accept this appeal, set-aside the impugned judgment dated 12.11.1994 and remand the case to the trial Court to decide the same afresh in accordance with law after recording the prosecution evidence, statement of the accused and the defence evidence (if the accused is desirous in the matter). The parties and their learned counsel shall appear before the learned Sessions Judge, Multan on 6.5.1996 who shall send the judicial file to the Court of competent jurisdiction in view of the fresh arrangement due to the separation of Judiciary from the Executive. Jamshed Ali respondent-accused is admitted to bail in the sum of Rs. 5,000/- (rupees five thousand only) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Multan who shall submit the bail bond etc. on 6.5.1996 before him failing which he shall be liable to face the legal consequences. The bail bond etc. shall be attached with the original file. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C (AJ&K) 1206 Present: chaudhary muhammad taj, J. AMJAD KHAN-Petitioner versus STATE-Respondent Crl. Misc. No. 14 of 1996 accepted on 25.4.1996. (i) Bail- —S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence U/Ss. 419, 420. 467, 468, 471 & 409 APC read with section 5(2), Prevention of Corruption Act, 1947-It is basic principle of law that bail is not to be refused as punishment merely on allegation that a person has committed an cffenee punishable with death or transportation for life unless reasonable grounds appear to exist to disclose his complicity—Wisdom behind it is that if an accused, is finally acquitted, how can he be compensated for his detention in judicial lock-up during trial-Therefcre, law allows concession of bail to accused person. [P. 1209] A (ii) Bail-- —S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence U/Ss. 419, 420, 467, 468, 471 & 409 APC read with section 5(2) Prevention of Corruption Act, 1947--A person accused of is not to be deprived of his liberty unless interest of prpper investigation and trial and those of society cannot be protected without doing so-Seriousness of offence and strength of evidence are not themselves, relevant for purpose of deciding whether liberty of a person who is presumed not to be guilty, is to be taken away or not-Those are relevant only indirectly in so far they may have bearing on strength of his desire to defeat a proper inquiry into his offence. [P. 1210] B (iii) Bail- —S. 497 Cr.P.C."Bail--Grant of--Prayer for-Offence U/Ss. 419, 420, 467, 468, 471 & 409 APC read with section 5(2) Prevention of Corruption Act, 1947-Bail under section 497 Cr.P.C. is refused if there appear reasonable grounds for believing that accused is guilty of an offence punishable with death or imprisonment for life--But if it appears, at any stage of investigation, inquiry or trial, that there are reasonable grounds for believing that accused has committed a non-bailable offence but there are sufficient grounds for further inquiry into his guilt, accused shall, pending such inquiry, be released on bail—Held: Case of petitioner requires further probe into his guilt, as such is of further inquiry-Bail granted. [P. 1210] C Mr. Muhammad Idrees Mughal, Advocate, for Petitioner. Mr. Abdul Rashid Karnahi, Asstt. Advocate-General for State. Date of decision: 25.4.1996. order This application is directed against the order passed by the Sessions Judge (Special Judge Anti-corruption), Muzaffarabad, on March 14, 1996, whereby bail was refused to the petitioner. 2. The facts forming the background of this bail application precisely are that a case under Sections 419, 420, 467, 468, 471, 409, APC read with Section 5(2), Prevention of Corruption Act, was registered with the Anti Corruption Police Muzaffarabad, on the complaint of Mr. Muhammad Farid Awan, Deputy Accountant General, on January 11, 1996. It was alleged in the report that Syed Muhammad Latif Gilani, Accounts Officer in his report, mentioned that the bills referred in the complaint were fictitious and Syed Shaukat Ali Javed Gilani, P.R.O., to the Special Assistant, Prime Minister Secretariat, after receiving the cheques, credited the same in his Account No. 2852-1, with the National Bank of Pakistan, Civil Secretariat Branch, Muzaffarabad. It was further disclosed in the report that accused Shaukat Ali Javed Gilani son of Rehmatullah was Junior Auditor in the Audit Department and from October 1991, he was on deputation as Section Clerk, Prime Minister Secretariat. It was further alleged that the amount was drawn illegally from the Public Treasury, on the basis of forged bills. 3. In the course of investigation, the accused-petitioner was apprehended and it was discovered that an Account No. C/A 240-2 was ipened by him in the name of "Khan Electric Store", in the National Bank ' Pakistan, Gojra Branch, Muzaffarabad and the cheques of Rs. 53,883/-, . 36.218/- Rs. 32,258/-, Rs. 3,61,806/- and Rs. 1.15.164/- issued in the tib of above Account-holder, were credited in the said Account, Sequently drawn by the accused-petitioner through cheques amounting . 5,99,333/-. The amount was claimed to be deposited in the account of accused-petitioner by accused, Shaukat Ali Javed Gilani. The prosecution alleged abetment against the accused-petitioner, with the principal accused. The above referred cheques credited in the Account of the accused-petitioner, were alleged to be issued on the basis of forged bills. 4. An application for the grant of bail after arrest was moved by the accused-petitioner before the Special Judge, Anti Corruption, Muzaffarabad, on March 12, 1996 which was disallowed on March 14, 1996. The above order has been assailed in the present petition. 5. Mr. Muhammad Idrees Mughal, the learned Counsel for the petitioner, raised the following points in support of the petition: (i) That there is no prima facie case disclosed by the prosecution against the accused-petitioner, (ii) that the allegation levelled against the petitioner require further probe, as such, the matter is of further inquiry; (iii) that it is categorically denied by the petitioner to have opened any Account in the name of his "Store". It was explained that some-one fictitiously opened the Account in the name of his "Store", "Khan Electric Store", therefore, the petitioner neither deposited any amount nor drew the same from the said Account; (iv) that the Account alleged to have been opened by the accused-petitioner, does not contain a copy of his Identity Card with the Bank authorities which was opened on the identification of the Bank Manager against whom neither any case was registered nor his statement as witness was recorded; (v) that it is not proved beyond any suspicion and doubt that the amount was deposited in the above referred alleged Account of the accused-petitioner by Syed Shaukat All Javed Gilani, accused ; and (vi) that the accused-petitioner, after the completion of investigation, is in Judicial Lock-up and is no more required by the Police for any investigation. 6. On the other hand, Mr. Abdul Rashid Karr.ahi, the learned Assistant Advocate General opposed the petition on the following grounds :- (i) That a serious and heinous offence has been committed by the accused-petitioner. It was explained that with hi§ abetment, the accused Shaukat All Javed Gila'ij misappropriated the huge funds by forged bills ai 1( l fictitiously drawing heavy amounts which were credited in the account of accused-petitioner ; (ii) that the challan of the case has not been forwarded to the Court as the investigation is in progress; and (iii) that the principal accused, Syed Shaukat Ali Javed Gilani, is absconding and his arrest would be impossible in case bail is allowed to the accused-petitioner. 7. I have heard the learned Counsel for the parties and also gone through the record, including the Police diaries. According to the prosecution, the main allegation against the accused-petitioner is that he opened an Account with the connivance of accused Syed Shaukat Ali Gilani. The cheques on the basis of forged bills, were received by the said accused, Syed Shaukat Ali Javed Gilani. The cheques amounting to Rs. 5,99,333/- were got issued in the name of accused-petitioner's Account opened in the name of "Khan Electric Store" which were credited there and later on drawn by the accused-petitioner. The investigation made so far reveals that the relevant cheques credited in the Account of the accused-petitioner, were recovered vide different memos and the cheques through which the amount was withdrawn from the account of "Khan Electric Store", were also recovered. The petitioner has denied to have opened any Account in the name of his 'Store', "Khan Electric Store", and also denied to have drawn any amount from the above Account. The Account opening-form recovered by the Police, shows that the Account was opened in the name of above mentioned 'Store', to be operated by Amjad Mahmood, accused-petitioner, on the introduction of Bank Manager. It may be pointed out that the Account was opened in the name of above mentioned 'Store', without receiving a copy of the Identity Card of the Account-holder, introduced by the Bank Manager, against whom neither any case was registered, nor his statement as prosecution witness was recorded, for having opened the Account and so introduced by him as Account-holder. The investigation made so far is not clear as to whether the accused-petitioner is the same person who opened the Account, operated by the same and thus drew the amount which was credited in his Account by Syed Shaukat Ali Javed Gilani, accused through cheques after misappropriating the same from the public funds, through forged bills. 8. The next question arises whether in view of the circumstances mentioned above, the petitioner is entitled to be released an bail or not, it is the basic principle of law that bail is not to be refused as punishment merely on' the allegation that a person has committed an offence punishable with death or transportation for life unless reasonable grounds appear to exist to disclose his complicity. The wisdom behind it is that if an accused, in view of the circumstances of the given case, is finally acquitted, how can he be compensated for his detention in the Judicial Lock-up during the trial. Therefore, the law allows the concession of bail to such accused person. 9. However, it is to be borne in mind that a person accused of is not to be deprived of his liberty unless the interest of proper investigation and trial and those of society cannot be protected without doing so. The seriousness of the offence and strength of evidence are not by themselves, relevant for the purpose of deciding whether the liberty of a person who is presumed not to be guilty, is to be taken away or not. Those are relevant only indirectly in so far they may have bearing on the strength of his desire to defeat a proper inquiiy into his offence. 10. The bail under Section 497, Cr.P.C. is refused if there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life. But if it appears, at any stage of the investigation, inquiiy or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail. The question of bail came under consideration before the different jurisdictions, in the facts and circumstances as involved in the instant case. Dealing with the similar matter, Mr. Justice Sajjad Ahmed Jan, (as he then was) in a case titled "Manzoor & others Vs. The State" (PLD 1972 SC 81) observed : "It is important to remember that bail is not to be withheld as a punishment. There is no legal or the moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit bis acquittal in the long run." In another case, titled 'Muhammad Bashir vs. The State' (PLD 1983 S.C. AJ&K 8), the Supreme Court of Azad Jammu and Kashmir resolved the proposition in the following words: "It is the basic principle of law that the bail is not to be refused as a punishment merely on the allegations that a person has committed an offence punishable with death or transportation of life unless reasonable grounds appear to exist to disclose their complicity. The wisdom behind it is that if an accused in view of the circumstances of a given case is finally acquitted, how can he be compensated for his detention, in'the judicial lock-up during the trial. Therefore, the law allows concession of bail to such a person of course pending further enquiry into his guilt" Muhammad Latifs case (PLD 1978 S.C. AJ&K 83), can also be (??) referred wherein the proposition closer to the facts of the present case as involved. The relevant observation made in the above cited case is reproduced:- "S. 5(l)(c), (2)--Bail--Petitioner charged for abetment of offences under Penal Code and also for committing offences f criminal misconduct as defined in S. 5(l)(c), Prevention of Corruption Act in dishonestly and fraudulently allowing other accused to misappropriate amounts-Trial Court yet to determine whether or not petitioner guilty of offences and whether could be held privy to main offences committed by other accused—Petitioner granted bail on appeal." In another case, Mr. Justice Durab Patel, (as he then was) while dealing with the point that a large amount is involved, gave the following verdict recorded in the case reported as (1978 S.C.M.R. 64):- "no doubt, the amount involved is large but by itself this would not be a "round ibr refusing the bail." The dictum of the Supreme Court of Pakistan in a case titled Ainanullah Shah vs. The State (PUD 1996 S.C. 241) would be relevant for the purpose of present controversy which is in the following words:- "-—S. 497(5)-Penal Code (XLV of 1860), S. 302/109--Bail- Whenever reasonable doubt arises with regard to the participation of an accused person in the crime of about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the . accused should not be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial." 11. After surveying the relevant law on the subject, in the light of the circumstances emanating from the facts disclosed above, it can safely be held that the case of the accused-petitioner requires further probe into his guilt, as such is of further inquiry. The order refusing bail by the trial Court to the accused-petitioner, after careful consideration, is not found to have been based on reasons and therefore, being in conflict with the basic principles dealing with the bail matters, is no maintainable. This Court though normally does not interfere in the orders recorded by the trial Courts in exercise of its judicial discretion but where a departure to the basis principles is noticed, the interference all the more becomes necessary, as such setting aside the order recorded by the trial Court, the petition is accepted'and the accused-petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 2,00,000/- (Two lac) with two sureties and a personal bond in the like amount, to the satisfaction of Sub Judge, Magistrate 1st Class, or Additional Sub Judge, Magistrate 1st Class, Muzaffarabad. Thereafter, the petitioner shall be released if not required in any other case or for any other offence. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1212 [Multan Bench] Present: MUHAMMAD NASEEM, J. SAEED AHMAD and another-Petitioners versus STATE-Respondent Ci-1. Misc. 642/B-96 accepted on 5.5.1996. Bail-- —S. 497 Cr.P.C.~Bail--Grant of--Prayer for--Offence U/Ss. 10/11 Offence of Zina (Enforcement of Hadood) Ordinance, 1979 read with sections 402/471/467/468/420 PPC-Reasons for admission of bail--(i) Principal accused has been admitted to bail by Court of Session and through attraction of rule of consistency petitioners are held entitled-There is no role of commission of Zina through force or by consent attributed to petitioner-Said role has been ascribed to principal accused-Abscondence of petitioners should not be a hurdle for their admission to bail—Allah Wasai is a female whose case is also covered by proviso to sub-section (1) of section 497 Cr.P.C. for purpose of her admission to bail especially when principal accused has already been admitted to bail-Bail granted. [Pp. 1213 & 1214] A Malik Mumtaz Akhtar, Advocate for Petitioners. Mr. S.M. Rasheed, Advocate for State. Date of hearing: 5.5.1996. judgment Ahmad Nawaz complainant was married to Mst. Shahana 14 years before 17.8.1994. Out of the said wedlock the spouses were blessed with five issues, the youngest being a female aged 2 years. Shabbir Ahmad co-accused was on visiting terms with Ahmad Nawaz complainant Saeed Ahmad and his wife Mst. Allah Wasai alias Mst. Kalsoom Wasso accused also visited the house of the complainant. Fifteen days before 17.3.1994 Shabbir Ahmad coaccused as well as both the petitioners-accused are said to have taken Mst. Shahana on the pretext of making the purchases from the Bazar. At that time Muhammad Ramzan, father of Mst. Shahana, is stated to be present in the house of the complainant. Mst. Shahana is alleged to have taken the cash amount and" the ornaments with her. The efforts were made for the recovery/return of Mst. Shahana which remained futile. Eight days before 17.3.1994 some unknown person is said to have handed over a photostat of "Talaq Nama" dated 8.2.1994 said to have been got executed by the complainant whose stand is that he same was forged and fictitious. On the written complaint of Ahmad Nawaz complainant formal FIR No. 126 dated 20.8.1994 was registered at Police Station Bohar Gate, Multan under Articles 16/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and after the investigation the police has added sections 420, 467, 468, 471 PPC. Shabbir Ahmad principal accused was arrested who has been admitted to bail. Saeed Ahmad and his wife Mst. Allah Wasai alias Mst. Kalsoom Wasso were arrested on 13.2.1996 whose bail plea has been rejected by the learned Sessions Judge, Multan on the grounds that they remained fugitive of law and that they are directly involved with the occurrence. The petitioners have filed this petition before this Court to try their luck to be admitted to bail. 2. I have heard the learned counsel for the petitioners as well as learned State counsel and gone through the record before me. The main contentions of the learned counsel for the petitioners are that the principal accused has been admitted to bail and through the attraction of the rule of consistency these petitioners are also entitled to be admitted to bail. According to him there is no role of commission of Zina Bil Jabr attributed to male accused-petitioner, Saeed Ahmad. He added that the abscondence of the petitioners-accused is not enough to deny the concession of bail to the petitioners as it may be that due to the fear of the police both the petitioners shifted their place of abode. On the contrary learned counsel for the State laid the emphasis that the names of the petitioners are mentioned in the FIR who took away the married lady Mst. Shahana for the purpose of commission of offence of Zina by the principal accused Shabbir Ahmad and thus they are not entitled to be admitted to bail especially when they remained fugitive of law. 3. After giving my serious considerations to the arguments addressed by the learned counsel for the parties, I am inclined to admit both these petitioners-accused to bail for my following reasons:- (i) Shabbir Ahmad principal accused has been admitted to bail by the Court of Session and through the attraction of the rule of consistency these petitioners-accused are held entitled to sail with him in the same boat for the purpose of their admission to bail. (ii) There is no role of commission of Zina through force or by consent attributed to Saeed Ahmad petitioner-accused. The said role has been ascribed to Shabbir Ahmad principal accused who has already been admitted to bail. Thus both these petitioners have scored a valuable legal right. (iii). The abscondence of the petitioners-accused should not be a hurdle for their admission to bail on the ground that some time the accused person(s) become the fugit /e of law due to the apprehension of coercion which is eifected by the police in such cases. Both the petitioners are husband and wife inter se and this aspect of the matter must have played the part about their disappearance. As such on the basis of this aspect of the matter and the aforesaid reason, I am not inclined to restrain myself from exercising the discretion in favour of the petitioners-accused. (iv) Allah Wasai alias Mst. Kalsoom Wasso is a female whose case is also covered by the proviso to subsection (1) of section 497 Code of Criminal Procedure for the purpose of her admission to bail especially when Shabbir Ahmad principal accused has already been admitted to bail. 4. The cumulative effect of the aforesaid state of affairs and discussion is that it is a case wherein the petitioners-accused should be admitted to bail than to be retained in jail. I, therefore, accept this application and admit both Saeed Ahmad and his wife Mst. Allah Wasi alias Mst. Kalsoom Wassoo to bail in the sum of Rs. 25.000/- each with one surety each in the like amount to the satisfaction of the learned Sessions Judge, Multan with the direction to appear before the lower Court on every date of hearing failing which the bail allowed to the petitioners-accused may be cancelled by the trial Court. The bail bond etc. shall be added to the challan file. 5. Copy dasti subject to payment of usual charges, if any. (K.K.F.) BaQ granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1298 Present: zeenat khan, J. HASHIM KHAN and another-Petitioners versus STATE-Respondent Crl. M.B. No. 70 of 1996, dismissed on 16.4.1996. Bail- —S. 497 Cr.P.C.»Bail--Grant of-Prayer for»Offence U/A. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Both petitioners are directly charged in F.I.R. for abducting complainant-Medicolegal report would suggest that victim has sustained some injuries on his person-­ Statements of PWs recorded U/S. 161 Cr.P.C. would support version of abduction for quenching thirst of un-natural lust-There is no enmity in between parties-No person would like to humiliate himself by falsely implicating others for commission of such like offence-Held: Case is apparently covered by section 12 of Ordinance and falls within prohibitory clause—Bail petition dismissed. [P. 1299] A Mr. Muhammad Karim Anjum, Advocate, for Petitioners. Mr. Muhammad Khan, Advocate, for State. Date of hearing 16.41996. judgment he petitioners have been arrested in case F.I.R. No. 445 dated 9.10.1995 registered at Police Station Cantt. D.I. Khan under Sections 377/345 PPG read with Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. After being unsuccessful in the lower forums for the concession of bail, they have come to this Court for the same relief. 2. Learned counsel for the petitioners has vehemently argued that the medicolegal report does not support the version of carnal intercourse and, therefore, the case against them is arguable for the purposes of bail. 3. Learned counsel for the State has, however, opposed the grant of bail to the petitioners. 4. I have given anxious consideration to the arguments advanced on either side and perused the record. 5. Both the petitioners are directly charged in the F.I.R. for abducting the complainant Sher Nawaz while he was on way from School to his house in order to take lunch. They have allegedly threatened the complainant by shcrvvi \<r pistol and churri and thereafter drove him on a motorcycle to a i'u.ce known as "Tatta Baluchan". At present, the medico legal report would suggest that the victim has sustained some injuries on his person. The statements of PWs Abdullah, Zafar Ali, Muhammad Bakhtawar and Noor Nawaz recorded under Section 161 Cr.P.C. would support the version of abduction for quenching the thirst of un-natural lust. There is no enmity in between the parties. No person would like to humiliate himself by falsely implicating the others for the commission of such like offence. By the time apparently the case is covered by Section 12 of the Ordinance aforesaid and falls within the prohibitory clause of Section 497 O.P.C. 6. In view of the above circumstances, presently the petitioner is not entitled to the concession of bail and this petition is accordingly dismissed. (K.K.F.) Bail petition dismissed:

PLJ 1996 Cr PLJ 1996 Cr.C. (Quetta) 1300 [DB] Present: munawar ahmad mirza CJ and javed iqbal, J. MUHAMMAD AKBAR and another-Appellants versus STATE-Respondent Criminal Appeal No. 137/1994 decided on 22.12.1994. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 345 read with S. 311 of Pakistan Penal Code, 1860--Compounding of an offence-Permission of Court for compounding of offence is mandatory and offence "shall" be compounded except as provided under section 345 Cr.P.C.—Court of competent jurisdiction may refuse to grant such permission and in such eventuality S. 311 P.P.C. comes into picture whereby discretion has been conferred to award conviction-In absence of S. 311 P.P.C. provisions contained in section 345(2) and (7) Cr.P.C. would become redundant which is not intention of law giver, as section 311 P.P.C. and S. 345 Cr.P.C. are inter-dependent and therefore, cannot be read.separately. [P. 1308] N (II) Criminal Trial- —When special procedure has been laid down in any enactment carrying jurisdiction then it cannot be taken away on basis of interpretation which is hot in consonance with reasons. [P. 1304] C (iii) Islamic Jurisprudence- —Punishment for certain evil acts/mischieves not prescribed in Holy Quran-Powers of Qazi to assess punishment—References do not lack in Holy Quran where no punishment has been fixed and it has been left to the discretion of Qazi to assess what sort of punishment he proposes-On analogical deduction Ruler can be given discretion to deal with case not falling within ambit of fixed punishment to safe-guard interest of society. [Pp. 1304 & 1305] F & G Holy Quran verses : 4:6, 4:34 ref. (iv) Islamic Jurisprudence-- -—Haqooq E7tfaA»Explained in detail in Para 9,10 and 11. [P. 1306] L (v) Islamic Jurisprudence-Islamic Concept of Compromise-- —Offences in Islamic law for proof and punishment can be divided into "Hudood" and "Tozir'-Offence of Tazir can further he categorised as "in violation ofHuqooq Ullah" or "in violation ofHuqooul Ibad"~It is settled that compromise, forgiveness or pardon, in Hudood cases cannot be allowed by wall or victim unless it has done before the matter is reported the court-If the matter is not reported to court, wall or victim may grant pardon or forgive-However, forgiveness is effective in Tazir, both by wali as well as by victim, if matter concerns Huqooqul-Ibad--J\nrist are of the view that forgiveness is effective to the limit to which personal loss or grievance is concerned, but it will not be effective in a Tazir matter if it relates to Haqooq Ullah. [P. 1305] J&K Abu Caud, Vol. IB, Page 362 Urdu translation Al-Tashri-ul-Jandiuc Islami, Vol. I Page 777, Al Akkamus Sultaniyya by Mawardi P. 207 ref. (vi) Islamic Law--"Tazir"--Pumshment-- — Tazir is a kind of punishment, which falls within discretionary ambit of head of a state, but this discretion cannot be exercised in cases which are overed by Hadd-lt would not be permissible for a Head of State to simultaneously award punishment of Hadd with additional punishment bywayofToz/r. [P. 1305] I (yii) Pakistan Penal Code, 1860 (Act XLV 1860)-- —Ss. 302 and S. 311, read with Criminal Procedure Code, 1898-S. 345- Whether accused can be convicted by way of "Tazir," when legal heirs of a deceased has already compromised offence during trial-Question to-­ Held: Under section 311 P.P.C. (Qisas and Diyat Ordinance), unfettered discretion has been given to trial Court to award punishment to accused against whom right of Qisas has been waived or corapounded-In section 311 P.P.C. only embargo imposed is that imprisonment cannot be extended beyond 10 years, except in cases of previous convict, habitual and professional criminals, 14 years imprisonment can be awarded-Only pre-requisite is that discretion should be exercised keeping in view facts and circumstances of case. [P. 1304] B (viii) Pakistan Penal Code, 1860 (Act XLV of I860)- —S. 302--Conviction/sentence~Challenge to--Compromise executed in between legal heirs of deceased and appellant while trial was in progress-­ Trial Court accepting compromise convicted appellants by way of "Tazir" to under-go 10 years R.L-Appellant's counsel did not challenge discretion exercised by trial Court but contended, that since parties has entered into compromise, case as a whole was compounded, trial Court was not legally empowered to award punishment-It was obligatory for the Court after accepting the compromise to acquit accused-Held: Contentions being devoid of merits-S. 311 P.P.C. gives unfettered powers to trial Court for awarding punishment to accused against whom right of Qisas has been waived or compounded-Impugned judgment of trial Court does not call for interference-Appeal dismissed. [Pp. 1304 & 1309] A, O 1994 SCMR 1262,1992 P.Cr.LJ 443 and 1992 P.Cr.LJ. 1960 ref . (Ix) Pakistan Penal Code, 1860 (Act XLV of 1860)- —S. 311 read with S. 345, Criminal Procedure Code, 1898- Compounding/waiver of Qisas and compounding of offence are not identical and inter-changeable for the reason that authority to waive or compound Qisas exclusively rests with individual concern but com­ pounding of offence cannot be done without having consent of Court [P. 1308] M . (x) Pakistan Penal Code, 1860 (Act XLV of 1860)- —S. 311--Award of Punishment on Tozir"--As contemplated in section 311 P.P.C., it can be inferred safely that punishment can be awarded by way of "Tazir" which is an acknowledged mode of punishment under Islamic Law. [P. 1304] D (xi) Words & Phrases- —"Tozir'-Meaning of-Any punishment other than Hadd, which is not fixed by law giver, but is left to the discretion of Qazi and is based on principles of Holy Quran and Sunnah-'Tozir, in its presentative sense, means prohibition and also instruction in law it signifies and infliction un-determined in its degree by law, on account of right either of God, or of individual; and occasion of it is any offence for which Hadd (or stated punishment) has not been appointed; whether that offence consist in word or deed." [P. 1304 & 1305] E & H "Hedaya" by Charles Hamilton ref. Mr. K.N. Kohli, Advocate, for Appellants. Mr. Salahuddin Mengal, A.A.G. for State. Date of hearing: 22.12.1994. judgment Javed Iqbal, J.-This is an appeal preferred against the order of conviction passed by learned Sessions Judge, Kalat at Mastung in Session Case No. 74 of 1991, whereby convicts/appellants have been convicted to undergo imprisonment for 10 years and 5 years R.I. respectively with benefit of Section 382-B Cr.P.C. with prayer to set aside the impugned judgment and acquit the convict/appellants. 2. Briefly stated the factsof the case in brief are that accused Muhammad Akbar and Gul Muhammad were challaned under Section 302 PPG in the CVurt of Sessions Judge, Kalat to face murder trial as a report was got lodgeu on 3.9.1992 by Mst. Raheema at 5.30 P.M. to Naib Tehsildar Xhad Koocha alleging therein that convict/appellants took her alongwith her daughter namely Mst. Hajira to Khadkoocha towards eastern mountain Sulemani for decision of some dispute but committed murder of her daughter. After usual investigation the accused were sent up for trial and when the trial was in progress, a compromise was executed in between the parties and the same was filed by the legal heirs of Mst. Raheema and Abdul Raheem, stating therein that the matter was compromised and accused were r-given, and affidavits to that effect were also filed. The learned Sessions Judge Kalat at Mastung accepted the compromise, filed by the legal heirs, however, convicted accused/appellants Muhammad Akbar to undergo 10 years R.I. while Muhammad Haleem was convicted to undergo 5 years R.I. with benefit of Section 382-B Cr.P.C. hence this appeal. 3. It is mainly contended by Mr. K.N. Kohli Advocate, on behalf of convict/appellants that the impugned judgment being contrary to facts and law, be set aside as the learned Sessions Judge has not considered the provisions as contained in Section 302 PPG read with Section 311 PPG and Section 345 Cr.P.C. and awarded conviction by way of Tazir in pursuance of Section 311 PPC while he was not legally empowered to do so after wavier of Qisas and execution of compromise whereby the case as a whole was compounded, as such no convictien could have been awarded. 4 Mr. Salahuddin Mengal Assistant Advocate General appeared for State and strenuously controverted the position as mentioned above, with the submissions that learned Sessions Judge Kalat, was fully competent under Section 311 PPC to award conviction by way of Tazir and discretion so vested has been exercised properly and the impugned judgment being free from any legal infirmity does not call for any interference. 5. We have carefully examined the only contention raised by Mr. K.N. Kohli Advocate, that when an offence is compromised as a whole, the question of conviction by way of Tazir does not arise and the learned Sessions Judge, therefore, cannot exercise powers as conferred upon him under Section 311 PPG and it was obligatory for him to accept the \, compromise and acquit the accused persons. We have not been able to persuade ourselves to agree with the said contention being devoid of merits for the reasons as discussed herein below. The provisions as contained in Sec. 311 PPC are reproduced hereunder at the cost of repetition and for ^ ready reference:- 311. Ta'zir after Waiver or Compounding of Right of Qisas in Qatl-i-Amd:-- Notwithstanding anything contained in Section 309 or Section 310 the Court may, in its discretion having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or ""—• compounded with imprisonment of either description for a term which may extend to ten years as ta'zir, Provided that the court may punish an offender who is previous convict, habitual or professional criminal, with imprisonment of either description for a term which may extend to fourteen years as tazir." 6. A bare perusal would make it clear that an un-fettered discretion has been given to the Sessions Judge for awarding punishment to an B offender against whom a right of Qisas has been waived or compounded meaning thereby that in case of waiver of Qisas and even after execution of a compromise conviction can be awarded. The only embargo which has been imposed is that imprisonment cannot be extended beyond a period of 10 years except in the case s of previous convicts, habitual and professional criminals, where fourteen years imprisonment can be awarded. The only pre-requisite which is quite apparent is that the discretion so vested should be exercised keeping in view the facts and circumstances of the case. It is not the case of convict/appellants the discretion was either exercised arbitrarily or whimsically but the contention is that it was never so conferred. We have, minutely perused the language which is quite plain and free from any ambiguity. It hardly needs any explanation that when a special Procedure has been laid down in any enactment carrying jurisdiction then it cannot be taken away on the basis of an interpretation which is not in consonance with - ", " reasons. On the basis of language as contemplated in Section 311 PC it can be inferred safely that the punishment can be awarded by way of Tazir, which is an acknowledged mode of punishment under Islamic Laws. The word Tazir means any punishment other then Hadd which is not fixed by law giver, but is left to the discretion of Qazi and is based on the principle laid down by the Holy Quran and Sunnah (P.L.D. 1983 F.S.C. 255). We make it clear that references do not lack in the Holy Quran where no punishment has been fixed and it has been left to the discretion of Qazi to assess what sort of punishment he proposes keeping in view the fact and circumstances of the case. Verse 4 : 6 reads "If two men among you are guilty of lewdness punished the both" again Verse 4 : 34 goes on to say "As to those women on whose part you fear disloyalty and ill conduct admonish them "first", (next) refuse share their beds and (last) beat them (lightly)" as is clear from this Verse, the husband being head of the family is given authority to give punishment in order to safe-guard him whom life. On analogical education the Ruler can be given discretion to deal with the case not falling within the ambit of fixed punishment to safe-guard the interest of society and the public at large. (See Enforcement of Hadood Practice and Procedure by M. Mahmood). Charles Hamilton in "Hedaya" defines Tazir as under:- "Tazeer, in its primitive sense, means prohibition, and also instruction in law it signifies an infliction undetermined in its degree by the Law, on account of the right either of God, or of the individual; and the occasion of it is any offence for which Hadd (or stated punishment) has not been appointed; whether that offence consist in word or deed". 7. The above mentioned Quranic Verse and the definition of Taazir, make it abundant clear that Taazir is a kind of punishment, which falls within the discretionary ambit of head of a State, but this discretion cannot be exercised in those cases, which are covered by Hadd. However, it would ot be permissible for a Head of State to simultaneously award the punishment of Hadd with additional punishment by way of Taazir (P.L.D. 1981 F.S.C. 145). 8. We have also focused our attention to the Islamic concept of compromise. The offences under the Islamic Law, from the point of view of their proof, and punishment can be divided into "Hudood" and Tazir. The offence of Taazir can further be categorised as "in violation of Huqooq Ullah" or "in violation of Huqooqul Ibad". It is settled that compromise, forgiveness or pardon, in respect of "Hudood" offences cannot be allowed by the Wali or the victim unless it has done before the matter is reported to the Court. This is based on the conception that as punishment for Hudood is fixed by Qur'an no one in authority is entitled to intervene unless authorised by Qur'an or Sunnah itself. However, if the matter is not reported to the Court, the Wali or the victim may grant pardon or forgive. It has been related on the authority of Abdullah Bin Umar that Holy Prophet said. (Forgive Hudood among yourselves but when a matter of Hadd comes before me, it becomes compulsory) Abu. Saud, Volume IB, page 362, Urdu translation.) However, forgiveness is effective in Taazir, both by the Wali as well as victim, if the matter concerns "Huqooqul Ibad". In this connection the Jurists are of the view that the forgiveness to the accused by the victim is effective only to the limit to which his personal loss or grievance is concerned, for example if it be beating, abusing, etc. But his forgiveness will not be effective in a Taazir matter if it relates to the rights of Public of "Huqooq Ullah". In this connection Abdul Qadir Auda writes. (The victim has the right to forgive Tazir crimes but only to the limit to which his personal grievance is concerned like beating, abusing etc. But this forgiveness will not be effective in the matters of the Public rights specially, the reforming of the accused. When a victim forgave any accused, it will only be effective to the extent of bis personal rights). (Al-Tashir ul Janaiul Islami, Vol. 1 page 777). (See also Al-Ahkamus Sultaniyya by Mawardi, page 207). See also Enforcement of Hadood by M. Mehmood. 9. The above reproduced version would make it abundant clear that when public right or Society as a whole is involved, the punishment by way of Tazir can be inflicted. There is no doubt that contrary to the offences of Hudood which in their entirely deal with violation of rights of God (Haqooq Allah), the offence of murder and offences of injuries to the bodies generally violate the right of man, it is for this reason that in 17 : 33 the power over a killer is given to the heir of the slain, no doubt subject to an admonition that he should not commit excess in wreaking relation. Verse 5 : 33 provides the following for sentences waging war against Allah and raising corruption or mischief in the land: "The only reward of those who make war upon Allah and his Messenger and strive after corruption in the land will be that they will be killed or crucified, or have their Hadd and feet on alternate sides cut off, or will be expelled out of the land. Such will be their degradation in the world, and in the hereafter theirs will be an lawful doom". Surah 5 : 33. The sentences are.--(l) death, (2) crucifixion, (3) cutting of hands and feet from the opposite side, and (4) expulsion cut of the land which has been interpreted by some as imprisonment. The documentators have confined the applicability of this verse to sedition, decoity or high way robbery. But there is no justification for thus limiting its scope and extent. The word of the verse are applicable inter alia to situation where the actions of individual or a group amount to creating corruption in the land ( (/!/1/1 j } iJ> ). In fact according to one sense spreading corruption in the land itself amounts to waging war against Allah who has ordained the retention of a balanced society full of virtues and free of vices. It is for this reason that Allama Shabir Ahmed Usmani is of the view (see his Commentary on 5 : 33) that there is no justification for curtailing the generality of the words used, this verse to specifies offences of sedition, robbery or dacoity. The language of the verse should be considered in its wider sense. To be at war with Allah and His Prophet (peace be upon him) or to create corruption or disorder in the land would cover all such matters as, (1) offensive by the non-Muslims, (2) the mischief of apostasy, (3) highway robbery, (4) dacoity, (5) unjustified murder, (6) plunder, looting of pillage, (7) criminal conspiracy and (8) seditious propaganda. Each of these offences of such for which an offender would be liable to at least one of the sentences referred to therein. The reference to Qatl-e-Nahaq (^t'tP) or unjustified murder clarifies the opinion of the worthy commentator. In fact creation of disorder in society which one wishes to be an ordered society would itself amount to creating corruption or mischief. ( j I __ j ) Thus a person who is a goonda (arch criminal) takes pride in his-being called a goonda. It is hobby as well as policy to create terror in the minds of members of his locality who would like to put an end to his criminal activities. He earns his living by sale of liquor and other intoxicants, prostitution, gambling, blackmail and making people pay protection money. He masterminds the criminal activities of others and thus assembles round him other criminal hardened cold-blooded as well as potential and in the advancement of any or all of these activities/commits of abets murder. Is he not one who creates corruption ( 3 u3 ) in the land" (PLD 1980 FSC-1). See Law Practice of Q & D Zafar). The mission of the prophets, according to the Qur'an is the establishment of virtue and justice in accordance with the revealed guidance:- "We verily sent Our messengers with clear proofs, and revealed with them the Scripture and the Balance, (i.e. the authority to establish justice) that mankind may observe the right measure and He revealed iron (i.e. coercive power) wherein is mighty power and (many) uses for mankind and that Allah may know who helpeth Him and His messengers, though unseen. (Al-Qur'an LVn: 25). 10. It hardly needs any further elaboration that murder directly involves and affects the society and in case of unjustified murder by a person who on account of his immorality or to satisfy his brutal instinct takes the law in his own hands is responsible for creating sensation and panic in society and the offence so committed is also related to the rights of God (Haqooq Allah). In such a situation the State would be fully competent to award punishment as may be deemed fit and proper and notwithstanding pardon by the legal heirs of the deceased. 11. The Provisions as contained in Section 311 PPC are embodied for the protection of society as a whole from distraction. We may point out here that Shariah extends to all the branches of law which have been evolved by the ingenuity and need of the human mind so far. This is a standing testimony to the independence of the Islamic Law and its inherent potentialities. Anybody who takes the trouble of making a detailed study of the subject will be able to distinguish between that part of the Shariah which has a permanent and unlaterable character, and is, as such extremely beneficial for mankind, and that part which is flexible and has thus the potentialities of meeting the ever-increasing recruitments of every time and age. The punishment by way of Taazir was introduced to meet certain eventualities and as such kept discretionary and flexible to meet the ends of justice. 12. The upshot of the above mentioned discussion would be that the Provisions as contained in Section 311 PPC are enacted to safeguard the interest of all and betterment of the society as a whole. 13. It seems pertinent to mention here that compounding/waiver of Qisas and compounding of offence are not identical and interchangeable for the reason that the authority to waive or compounded the Qisas exclusively rests with the individual concern but compounding of offence cannot be done without having the consent of the court. The provisions as contained in Section 311 PPC cannot be read in isolation but are to be considered in the light of Section 345 (2) and (7) of Cr.P.C. which runs as under- "345(2) The offences punishable under the Sections of the Pakistan Penal Code specified in the first two columns of the table next following may, with the permission of the Court before which any prosecution for such offence is pending be compounded by the persons mention in the third column of that table " "345(7) No offence shall be compounded except as provided by this Section." The above reproduced Sub Sections 345(2) and 345(7) Cr.P.C. would make it clear that permission of the Court for compounding of the offence is mandatoryand no offence "shall" be compounded except as provided by Section 345 Cr.P.C. meaning thereby that permission of the Court is a mandatory pre-requisite before any offence is allowed to be compounded. The Court of competent jurisdiction may refuse to grant such permission and in such an eventuality Section 311 PPC comes into picture whereby discretion has been conferred to award conviction if circumstances of the case so justify and punish an offender against whom the right of Qisas was waived or compounded. In absence of Section 311 PPC the Provisions as contained in Sub Section 345(2) and (7) of Cr.P.C. would become redundant and it could never be the intention of law giver as Sections 311 PPC and 345 Cr.P.C. are interdependent, and therefore, cannot be read separately. The upshot of the above discussion would be that a Court may exercise its discretion and award punishment by way of Tazir under Section 311 PPC. 14. We have respectfully gone through the authorities as relied upon by Mr. K.N. Kohli Advocate in order to substantiate his version as mentioned above. We have perused with utmost respect the case titled Sarwar Khan vs. The State 1994 S.C.M.R. 1262 which is not applicable, wherein a compromise appears to have been filed before Hon'ble Supreme Court for the first time which was accepted and moreso, no conviction was awarded under Section 311 PPC by the trial Court, as such the verdict given in the said case cannot be made applicable to this case. We have also perused the case titled Muhammad Mazhar vs. The State (1992 P.Cr.L.J. 443) which has no relevancy in this case, because punishment under Section 311 PPC was not awarded by the trial Court and a compromise filed by the legal heirs was accepted by virtue of the Provisions as contained in Section 345 Cr.P.C. No verdict has been given regarding the exercise of powers as conferred upon the trial Court under Section 311 PPC. We have also examined carefully the dictum as laid down in case titled Usman vs. The State (1992 P.Cr.L.J. 1960) but we cannot agree with it for the reasons as mentioned above. 15. In view of what has been stated above, the impugned judgment whereby conviction was awarded in exercise of powers conferred upon the learned trial Court under Section 311 PPC does not call for any interference. The murder was committed in a brutal and merciless manner and as such the convict/appellants do not deserve any leniency, consequently the appeal is dismissed. (MAA) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1309 [Rawalpindi Bench] Present: MUHAMMAD AQIL MlRZA, J. BOSTAN-Petitioner versus STATE-Respondent Criminal Misc. No. 46/Q-95 decided on 8.8.1995. (i) Constitution of Pakistan, 1973-- —Art. 199-Constitutional jurisdiction--A petition invoking powers under Art. 199 of the Constitution can be filed to seek quashment of F.I.R. at investigation stage, on grounds of mala-fide or want of jurisdiction in investigation agency-Such a relief cannot be claimed or granted in exercise of inherent jurisdiction of High Court under Section 561-A Cr.P.C. [P. 1314] F PLD 1971 SC 677 ref. (ii) Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 561-A read with Pakistan Penal Code (Act XLV of 1860) S. 354--Quashment of F.I.R, while case under investigation of Police and Challan has yet not been submitted in Court-Contention of petitioner that powers under section 561-A, Cr.P.C. can be exercised to quash an P.I.R. and proceeding resulting therefrom before submission of Challan in court-Repelled-petition being incompetent was dismissed in limine. [P. 1313 & 1314] E & G 1990 P. Cr. L. J. 1475,1993 P. Cr. L. J. 205,1993 P. Cr. LJ. 2256, PLD 1993 Lah. 416, N L R 1992 Crl. 434 distinguished. AIR1945 PC 18, PLD 1967 SC 317,1973 P. Cr. L. J. 629, PLD 1971 SC 677,1968 S C M R 62, PLD 1986 Lah. 293 ref. (iii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 561-A-Inherent powers of Court-Quashment of F.I.R. still under Police investigation-Inherent powers under Section 561-A Cr.P.C. cannot be exercised by High Court when matter is not pending before any Court and words "or otherwise to secure ends of justice" are relatable to exercise of jurisdiction when matter is pending before court and not at stage when matter is still under investigation by police. [P. 1313] A AIR 1945 PC 18, PLD 1967 SC 317,1973 P.Cr.L.J. 629, PLD 1986 Lah. 293, 1968 SCMR 62, and PLD 1971 SC 677 ref. (iv) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 561-A-Inherent powers of High Court cannot be exercised to undo other provisions of the criminal Procedure Code or to obstruct or divert ordinary course of Criminal Procedure. [P. 1313 ] B, D (v) Criminal Procedure Code,1898 (Act V of 1898)-- —S. 156-Investigation into cognizable offence-It is statutory power of police to investigate a cognizable offence under section 156 Cr.P.C.-This statutory power of Police cannot be interfered with by invoking inherent powers which are meant to be used to prevent abuse of the process of court. [P. 1313] C Raja Khalid Ismail Abbasi, Advocate, for Petitioner. Syed Sajjad Hussain Shah, Advocate, for A.A.G. (On Court call) Date Of hearing: 26.6.1995 and 9.7.1995. order The petitioner, through this petition filed under section 561-A Cr.P.C. seeks quashment of FIR No. 116 dated 9.4.1995 registered against him at Police Station Fateh Jang, for the offence under section 354 PPC. It is stated that the allegations made in the FIR are false and the registration pf the case is the result of longstanding enmity between the complainant and the petitioner. It is further stated that the chaUan is yet to be submitted in court. 2. The case came up for initial hearing on 29.6.1995. Learned lr counsel for the petitioner was asked to address arguments on the maintainability of the petition under section 561-A Cr.P t C. for quashment of FIR, when the case is still at the investigation stage. The learned counsel __ sought time to further prepare the case. On 9.7.1995, when the case was relisted, he insisted that the petition under section 561-A Cr.P.C. was competent. He argued that in the exercise of its inherent jurisdiction this court can quash the FIR, to secure the ends of justice. His submission is that although the case may still be at the investigation stage yet the High Court has inherent powers to quash an FIR which is registered to falsely implicate innocent persons with a view to cause harassment to them. In support of his submission that FIR can be quashed under section 561-A Cr.P.C., the ^ learned counsel has placed reliance on the following decided cases:- (1) Jameel Ahmad Khan and others v. AC. and others (1990 P.Cr.L.J. 1475); (2) Mst. Shabana Chaudhary vs. Station House Officer, Police Station Akbari Gate, Lahore and 4 others (PLD 1993 Lahore 416); (3) Shahamand Ali and 6 others v. S.H.O. Police Station Gogera, District Okara and another (1993 P.Cr.L.J. 2256); And (4) Muhammad Aslam v. The State (1993 P.Cr.L.J. 205) 3. The legal question which calls for decision in the present case is, whether an FIR can be quashed in a petition under section 561-A r.P.C. when the case is still at the investigation stage and has not yet been sent in court for trial. 4. All the four cases cited by the learned counsel are totally irrelevant to the controversy in hand. In the first three cases, writ petitions under Article 199 of the Constitution had been filed to seek quashment of F.LRs. Section 561-A Cr.P.C. had not been invoked in these cases. Therefore, the question that an F.I.R. can or cannot be quashed in exercise of inherent jurisdiction under section 561-A Cr.P.C. did not arise in these cases. So far as the last mentioned case of Muhammad Aslam is concerned, it is also distinguishable because in this case quashment of the F.I.R. and the proceedings were sought when the criminal proceedings were already pending before the court after completion of the investigation by the police. The precedent cases do not discuss that an FIR can be quashed in a petition under section 561-A Cr.P.C. when the proceedings are not pending before the Court. Learned Assistant Advocate General relied on the case of Khawaja Anwar Hassan, etc. v. Circle Inspector, Anti-Corruption, etc. (NLR 1992 Criminal 434). This case is also relevant because it was a writ petition filed under Article 199 of the Constitution, seeking quashment of the FIR. A learned Division Bench of this court refused to quash the FIR on the ground that in exercise of its constitutional jurisdiction an FIR cannot be quashed when it discloses commission of a cognizable offence. 5. Learned counsel for the petitioner, by making reference to the text of section 561-A Cr.P.C. submitted that this court is not denuded to quash the FIR with a view to secure the ends of justice. He elaborated his submission by adding that the words "or otherwise to secure the ends of justice" occurring in section 561-A empower the High Court to make appropriate order to quash an F.I.R. even at the investigation stage, where it finds that circumstances of the case are such that the challan, if submitted in court for trial, will result in abuse of the process s of court In order to appreciate the contention of the learned counsel, it will be fruitful to examine the provisions contained in Section 561-A Cr.P.C. It is reproduced below: "561-A.--Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice." The scope of inherent powers of the High Court under Section 561-A Cr.P.C. came up for examination before the Privy Council in Emperor v. Khawaja Nazir Ahmad (AIR 1945 P.C. 18). Their lordships held as unden- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to obtained by leaving each to exercise its own function, always, of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then." The august Supreme Court of Pakistan in Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317) made the following observations:- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but-it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself." In the case of Taj Din and 2 others v. Sardar Vakil Khan and 2 others (1973 P.Cr.L. J. 629) Javid Iqbal, J., as his lordship then was, found that powers of the High Court under Section 561-A Cr.P.C. do not extend to interfere with the police investigation into criminal cases. Mazharul Haq, J. in Abdul Mqjeed and 2 others v. The State and another (PLD 1986 Lahore 293) held that an accused person cannot invoke the provisions of section 561-A Cr.P.C. for quashment of proceedings in a case which is under investigation by the police. 6. It would thus be seen that the inherent powers under Section 561-A Cr.P.C. cannot be exercised when the matter is not pending before any court and the words "or otherwise to secure the ends of justice" are relatable to the exercise of jurisdiction when the matter is pending before the court, and not at the stage when the matter is still under investigation by the police. It is to be noted that the inherent powers cannot be exercised to undo other provisions of the Criminal Procedure Code, it is the duty of the police to investigate a cognizable offence under Section 156 of the Code. This statutory power of the police cannot be interfered with by invoking the inherent powers which are meant to be used to prevent the abuse of the process of the court. The inherent jurisdiction of the High Court under section 561-A Cr.P.C. cannot be exercised to obstruct or divert the ordinary course of criminal procedure. Accordingly, I feel no hesitation in repelling the contention of the learned counsel for the petitioner that powers under Section 561-A Cr.P.C. can be exercised to quash an FIR and the proceedings resulting therefrom before submission of challan in a court for trial. 7. The proposition that inherent powers of the High Court under Section 561-A Cr.P.C. cannot be invoked for quashment of the FIR came up for decision before the Honourable Supreme Court of Pakistan in the following two cases: - (1) Shahnaz Begum v. The Hon'ble Judges of the High Court of Sind and Baluchistan and another (PLD 1971 SC 677) and (2) Sher Khan and others vs. The State (1968 SCMR 62). In the case of Shahnaz Begum, it was held as under: - "If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the investigating agencies to be corrected by a proper proceeding either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code." 8. The case of Sher Khan is relatable to the legal proposition which is directly under consideration here. The fact s of the precedent case are that the High Court refused to quash the FIR by invoking Section 561-A Cr.P.C. Petition for leave to appeal against the order of the High Court was dismissed by the Supreme Court by taking the view that the order of the High Court was "plainly correct" 9. Provisions of Article" 199 of the 1973 Constitution are identical in language and spirit with those of Article 98 of the erstwhile Constitution of 1962. Therefore, keeping in view the principles laid down in the case of Shahnaz Begum, only a petition invoking powers under Article 199 of the Constitution can be filed to seek quashment of an F.I.R. at the investigation stage, on grounds of mala fide or want of jurisdiction in the investigating agency. Such a relief cannot be claimed or granted in the exercised of inherent jurisdiction of this court under section 561-A Cr.P.C. For what has been discussed above, this petition is dismissed in limine, being incompetent. The petitioner, if so advised, may, however, file a petition under Article 199 of the Constitution for quashment of the F.I.R. If such a petition is filed, the same shall be heard and decided on its own merits. (MAA) Petition dismissed in limine

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1315 [DB] Present: sajjad ahmed sipra and R. M. khurshid, JJ. MUHAMMAD MANSHA-Appellant Versus STATE—Respondent Criminal Appeal No. 734 of 1991, Murder Reference No. 559 of 1991 partly accepted on 6.2.1996. (i) Criminal Trial- —Offence U/Ss. 302 & 307, 34 PPC-Murder-Offence of--Conviction for-- Challenge to-One accused raised lalkara other two stabbed deceased with CMun'-Allegation of-One accused out of three acquitted giving benefit of doubt-Contention that delay in lodging FIR, PWs are interested and evidence which was disbelieved qua one accused would not be believed in respect of other accused-Held: Keeping in view the unfortunate tendency in our sociely to implicate and include names of some innocent persons along with real offenders has become almost a common practice—It is for that reason that principle of "sifting grain out of chaff has been recognized for safe administration of criminal justice- Courts have refrained to strictly apply principle of "Falsus in Una Falsus in omni bus" so that some innocent persons may not suffer due to un healthy practice of involving as many number of persons from accused side as could be possible in order to bring maximum harm to that side^- Held ftirther: It can be noticed with great concern that the people are very reluctant to poke their nose in blood of others by becoming a witness, thereby putting their lives in danger and misery at the hands of assailants and their supporters-Tendency for procuring independent and dis-interested witne ses is therefore, becoming out of fashion due to certain compulsions identified above—A witness though related should not be disbelieved until and unless it is shown that he is interested or inimical-Appeal partly accepted. [P. 1319 & 1320] A & B (ii) Motive- —Murder-Conviction for-Motive-Effect of-There was no direct evidence on motive except that witnesses mentioned 'that there was some dispute over buffalo~In that way immediate cause of murder and actual motive as alleged in FIR, remained shrouded in mystery and would call for a lesser sentence being a mitigating circumstance—Ends of justice will be satisfied if sentence is converted into imprisonment for hie instead of sentence of death-Appeal partly accepted. [P. 1321] C Sardar Muhammad LatifKhan Khosa, Advocate, for Appellant Mr. Pervez Enayat Malik, Advocate,;for State. Date of decision: 6.2.1996. judgment R.M. Khurshid, J.--This occurrence took place at 8.30 PM on 4.10.1988 in the area of Niwan Mohalla, Chah Miran, Lahore at a distance of 1 kilometer towards south of Police Station, Shad Bagh, Lahore in which one Muhammad Akram was stabhed to death. 2. The brief facts are that the complainant tethered a buffalo in a vacant plot situate on the back of his house at 8.00 PM on the unfortunate night. The deceased went to that site shortly thereafter and found Muhammad Mansha and Muhammad Latif accused at the spot He complained to them that pi-eviously his buffalo was stolen and that they (accused) were suspected of its theft. The accused however, were unable to satisfy the complaint side regarding the aforesaid allegation of theft till that date. The deceased also complained that the accused were present on that date with the object of stealing buffalo. This led to an altercation between the accused named above and the deceased, but the matter was pacified due to intervention made by Muhammad Farooq and Mahboob Hussain PWs. The accused thereafter left for their homes, but re-appeared soon after, while out of them Muhammad'Mansha and Muhammad Latif were armed with churry each and Shaukat Ali alias Shoka (acquitted accused) was empty handed. Muhammad Mansha accused raised Lalkara that the deceased be taught a lesson for falsely accusing and suspecting the accused persons for committing theft of their buffalo. Upon the exhortation of Muhammad Mansha, the deceased was held in Japha by Shaukat Ali alias Shoka accused form behind. The accused Muhammad Mansha plunged his churri in the chest of deceased whereupon the latter fell on the ground. Muhammad Mushtaq PW stepped forward in order to save the deceased, but Muhammad Latif accused attacked him with churri causing an injury on the lower part of his chest and 2 injuries on right thigh. PWs Muhammad Farooq and Mahboob Hussain tried to intervene but were threatened by all the accused to keep away if they wanted to remain alive. 3. On hearing the noise, people from the mohalla were attracted to the spot and on seeing them, the accused ran away with their weapons. 4. The investigation linked all the 3 accused namely Muhammad Majisha, Muhammad Latif and Shaukat Ali alias Shoka with the occurrence. They were accordingly challaned under Section 302/307/34 PPC and were" sent up to case the trial in the court of Session. 5. Upon the conclusion of trial Ch. Muhammad Saeed the learned Additional Sessions Judge, Lahore vide his judgment dated 5.6.1991 found Muhammad Mansha and Muhammad Latif guilty under Section 302/307/34 PPC, but acquitted Shaukat Ali alias Shoka after giving him the benefit of doubt. 6. Vide, aforementioned judgment Muhammad Mansha and Muhammad La'df accused were convicted and sentenced to death and imprisonment for life respectively with a fine of Rs. 10.000/- or in default to undergo one year R.I. Both of them were further convicted under Section ^ 307/34 PPC and sentenced to 7 years R.I and a fine of Rs. 4.000/- each. 7. The fine if recovered was to be paid as compensation to the heirs of the deceased under section 544-A Cr.P.C. 8. The impugned judgment was challenged in appeal No. 734/91 filed by Muhammad Mansha and another Criminal Appeal No. 702/91 filed by Muhammad Latif convict. Murder Reference No. 559/91 was made by the learned Additional Sessions Judge, Lahore for confirmation of death sentence awarded to Muhammad Mansha as required by Section 374 Cr.P.C. It was prayed in Criminal Revision No. 600/91 that fine should be enhanced on two counts; that sentence under section 307 PPC be also enhanced and that appellant Muhammad Latif be sentenced to death. Criminal Appeal No. 1303/91 filed by the State against acquittal of Shaukat Ah' alias Shoka accused was dismissed by this court vide order dated 14.6.1994. All the 4 matters will be decided by this judgment 9. The learned counsel for the appellants challenged the judgment on the ground that the prosecution had failed to prove its case. In this context, it was urged that interested and discrepant evidence was examined at the trial, which was wrongly believed by the learned trial Judge. Th recoveries of weapons of offence were also allege d to be doubtful because those were proved through interested witnesses. Since there was no intrinsic corroboration of the interested witnesses by the circumstantial or the medical evidence, therefore, the same allegedly remained highly doubtful throughout. In this regard, it was alleged that according to the FIR, only one injury was given to the deceased whereas according to post-mortem report Ex. P/N there were two injuries on the person of the deceased. Those injuries have been shown in diagram Ex. PN/1 separately and were the result of two blows instead of one as alleged by the complainant. This allegedly showed that the complainant was not present at the spot and was falsely set up to become a witness being brother of the deceased. The other eye witnesses namely Mehboob Hussain and Muhammad Mushtaq were also stated to be interested because they were related to the deceased and were also allegedly present at the spot per chance. The only dependent witness namely Muhammad Farooq was given up on the plea that he had been won over so that the truth may not come to light. 10. The learned counsel for the appellants also submitted that the accused never committed the offence nor there was any common intention between the two to commit the murder of the deceased becaus^ Muhammad Latif accused/appellant caused no injury to the deceased and that according to the prosecution he had assaulted the Muhammad Mushtaq PW only. 11. Lastly it was contended that in fact the motive was not proved as alleged in the FIR and that the deceased was done to death during the night by some unknown persons and the appellants were implicated out of suspicion. The Police Station was stated to be at a distance of \ kilometer but the report was not lodged there as the statement of the complainant was recorded in the Hospital at about 10.30 PM, when the police had reached there. The formal FIR was recorded on the basis of the aforesaid statement at 11.00 PM. This delay gave sufficient time to the prosecution to make deliberations and consultation to implicate the accused falsely in this case. 12. Finally the learned counsel for Muhammad Mansha appellant urged that even if the story of the prosecution was believed ipso dicso, the case would fall within Section 304 PPC as it was sudden flare up without any pre-meditation. The sentence of death or imprisonment for life was therefore, not warranted under the situation. 13. The learned counsel for appellant Muhammad Latif was also of the view that it was a false case based on suspicion for the reasons alluded to above and the case would not fall within the ambit of Section 302/307/34 PPC as community of purpose between the accused was not established nor the common intention could be inferred under the given situation. Even if the prosecution was believed with reservation, the case of the prosecution would fall under Section 324 PPC as the injured PW did not suffer any grievous injury. 14. The learned counsel for the State however, supported the judgment of the learned trial Court on the ground that mere relationship of the witnesses with the deceased would not disqualify their testimony nor would it be considered that they were telling lie, when admittedly there was no enmity between the parties. «The natural age on their part would be to bring the real culprits to book and as such there was no his case (lines misprint ??) having been proved the ocular occurrence rendered without any flaw, by the witnesses supported by the circumstantial and medical evidence, would show that the prosecution had proved its case against the accused beyond any reasonable doubt. The learned trial court had already applied the principle of sifting the grain out of chaff and had acquitted one of the accused against whom the case was found doubtful. To this proposition the learned counsel for the appellants stated that the evidence, which was disbelieved qua one accused would not be believed in respect of other accused. 15. We have considered the above submissions from both sides. It is to be seen if the prosecution has been successful to prove its case against the accused persons. It appears that the learned trial Court proceeded with great care and caution to see that the evidence produced by the prosecution is appreciated critically so that no innocent person could be sent to gallows and that the guilty persons should get their due in accordance with law. It is for that purpose the co-accused of the appellants namely Shaukat Ali alias Shoka was given the benefit of doubt and acquitted. The question would now arise if the same evidence could be believed against t convict appellants. The proposition has become very simple because keeping in view the fortunate tendency in our society to implicate and include the names of some innocent persons alongwith real offenders has become almost a common practice. It is for that reason that the principle of "sifting the grain out of chaff has been recognized for the safe administration of criminal justice. The courts have refrained to strictly apply the principle of "Falsus in Una Falsus in omni bus" so that some innotent persons may not suffer due to unhealthy practice of involving as many number of persons form the accused side as could be possible in order to bring maximum harm to that side. 16. Keeping in view the above discussion, we will have to see whether in the instant case the evidence produced by the prosecution was trustworthy and confidence inspiring. It is true that the complainant i.e. PW- 1 is the real brother of the deceased, but on the account alone the evidence cannot be discarded. He is also living in the same place and being a blood relation of the deceased, it all be his genuine instinct to see that the real kills of his brother should be got convicted. It is admitted fast that there was no previous enmity though there was a marking doubt against the accused that they were instrument in the theft of a buffalo in the past and since they were seen again near the buffalo of the complainant, therefore, it was but natural for the deceased to say as to what they were doing, at the spot at that time of the night particularly when they had failed to satisfy the complainant side regarding the previous theft of buffalo. This had led to an altercation, but due to intervention of the PWs, the accused went to their home and reappeared with the grudge while armed with churry to teach a lesson to the deceased for accusing them for theft. After raising lalkara Muhammad Mansha accused opened attack upon the deceased and stabbed him to death, while causing injury on his chest. Muhammad Mushtaq PW was injured by Muhammad Latif when the former tried to intervene. In such a situation, the motive raised by the prosecution cannot be thrown away particularly when in evidence it is said that there was some trouble over some buffalo, although the witnesses were not specific as to what had happened or as to what words were exchange during the altercation between the deceased and the assailants. However, that would not make the testimony of the eye witnesses doubtful particularly when there was a patent proof of Muhammad Mushtaq PW to be present at the'spot having sustained injuries on the vital part of his body during transaction at the hands of Muhammad Latif appellant/convict. This would establish his presence at the spot. The witness was not inimical towards the accused and in that sense he would be an independent person though a caste fellow. He may have some relationship as during cross-examination, he stated that the deceased was not related to him, but might be related to his father. However, there is nothing on record to show as to what was the exact relationship except that he was staying there as a paying guest being a student of M.Sc. This reveals one important factor that he is a young man with sound educational background and therefore, the quality of his evidence should be given due weight, while appreciating his statement particularly as stated above, he had been one of the victims during the unfortunate incident resulting into the murder of the deceased. The 3rd eye witnesses namely Mahboob Hussain is brother-in-Law of the deceased. Though he lived in a different locality and had claimed to be present as his wife had come to the house of his in-laws This visit of his wife to her parent's house is not unusual and as such presence of the witness would not become doubtful as alleged by the learned counsel for the appellants/convicts by terming him as a chance witness. 17. In view of the above situation, the evidence of the eye witnesses is not only trustworthy, but is intrinsically truthful because there is no background of any enmity between the parties. It is, therefore, not likely that he eye witnesses will go to such an extent that they would leave out the real culprits and would substitute the present appellants/convicts. 18. There is no contradiction between the ocular account of occurrence and the injuries found on the person of the deceased as well as on he person of Muhammad Mushtaq PW. All the witnesses have described injuries on the persons.of the victims corresponding to the medical evidence given by the Medical Officer namely Dr. Muhammad Afzal (PW-9) and Dr. Moeen-ud-Din (PW-19). Although it is stated in the FIR by the complainant that Muhammad Mansha accused had given churn blow on the chest of the deceased, but that by itself would not create any doubt in his testimony particularly when the other witnesses supported the version that 2 injuries were given by the aforesaid assailant to the deceased out of which the second injury was near the armpit. It may be noted that FIR is not an exhaustive «- document so as to contain each and Hospital and the police had reached there and the statement was made at 10.30 PM, though the occurrence hataken place at 8.30 PM. It is therefore, obvious that keeping our present system of working of the police, it cannot be successfully urged that there was any delay in lodging the FIR rather it will appear that the FIR was promote and there was no time for deliberations or concocting a false story as alleged by the defence. The FIR being prompt would be considered as a convincing circumstances of corroboration to the story given by the eye witnesses. 20. The recovery of weapons of offence i.e. churri from each of the accused cannot be doubted only because the recovery witness was a. relative of the deceased. There is no enmity between the aforesaid witness and the accused, nor he had any animus to implicate the accused persons falsely in this case. It can be noticed with great concern that the people are very reluctant to poke their nose in the blood of others by becoming a witness thereby putting their lives in danger and misery at the hands of the assailants and their supporters. The tendency for procuring independent and dis-interested witnesses is therefore, becoming out of fashion due to certain compulsions identified above. A witness though related should not be disbelieved until and unless it is shown that he is interested or inimical. In the instant case, one of the recovery witnesses though related is neither inimical nor interested to implicate the accused persons falsely in this case. Blood stained churries were got recovered separately by each of the accused namely Muhammad Mansha and Muhammad Latif and as such this is yet another circumstance to corroborate the truthfulness of the eye witnesses regarding the occurrence. As such the version as given by the eye witnesses regarding the occurrence is corroborated by the circumstantial as well as medical evidence. Hence they can be safely believed. 21. Now a question would arise as to what offence has been committed by the appellants. In respect of Muhammad Mansha there is no doubt that he had a clear intention to kill the deceased Muhammad Akram as he had chosen the vital part of the body by selecting the weapon like churn to finish his life. He also challenged deceased by raising lalkara followed by attack up him. The learned counsel for the appellant contended that in fact Muhammad Mansha was extremely provocated after hearing the false allegation of theft from the mouth of deceased and therefore, he committed the offence under an extremely agitated state of mind and as such provisions of Section 304 PPC would be attracted instead of Section 302 PPC. This argument however, does not appear to be convincing because motive about the occurrence was there, though it was not clearly spelt out by the eye witnesses at the trial. Except the complainant the other two witnesses mentioned that there was some dispute regarding some buffalo and as such the motive remained weak and shrouded in mystery, but it would not provide any justification to the appellant Muhammad Mansha to be enraged to an extent to lose his balance of mind so as to take the life of the deceased or to open an attack resulting into his murder. There is evidence that after altercation with the deceased, he had gone to the house and had brought the churri, with which he caused fatal injury to the deceased. It is therefore, obvious that he had a clear intention to finish the deceased and had come prepared to the spot with that object. It therefore, cannot be said that element of pre-meditation was missing in the instant case qua Muhammad Mansha accused. He is therefore, rightly convicted under Section 302 PPC by the learned trial court for causing death of the deceased, intentionally. This will bring us to the question of sentence to be awarded to the appellant. As noticed above there was no direct evidence on the motive except that the witnesses mentioned that there was some dispute over the buffalo. In that way the immediate cause of murder and the actual motive as alleged in the FIR, remained shrouded in mystery and would call for a lesser sentence being a mitigating circumstances. The ends of justice will be satisfied if the sentence is converted into imprisonment for life instead of sentence of death as awarded to Muhammad Mansha appellant by the learned trial court. The aforesaid accused had only attacked the deceased and admittedly did not cause any injury to Muhammad Mushtaq PW. Likewise Muhammad Latif appellant, convict did not cause any injury to the deceased and had only opened attack upon Muhammad Mushtaq PW. If he had common intention with Muhammad Mansha to kill the deceased, then instead of attacking Muhammad Mushtaq PW, he would have proceeded to assault the deceased, as was done by appellant Muhammad Mansha. It, therefore, follows that Muhammad Latif appellant did not share common \ intention with his co-accused Muhammad Mansha appellant, convict so as to commit the murder of the deceased. The circumstances and the evidence brought on record will strongly imply that both the accused initiated separate actions at the time of occurrence and therefore, had no community of purpose so as it hold them vicariously liable for each other. Both of them will therefore, be liable for their individual acts. The conviction of Muhammad Mansha appellant has already been upheld under Section 302 PPC and he is sentenced to imprisonment for life, instead of sentence of death. Since Muhammad Latif appellant is not held vicariously liable with the aforesaid Muhammad Mansha accused for causing death of the deceased, therefore, the benefit of doubt is extended to him and he is acquitted on the charge of Section 302 PPC. His conviction and sentence under the aforesaid section is set aside, but his conviction under section 307 PPC is maintained for causing murderous assault upon Muhammad Mushtaq PW. 22. The argument of the learned counsel for the aforesaid appellant is not convincing that since injuries on the person of victim Muhammad Mushtaq were not proved grievous through direct evidence by examining the doctor who had carried the operation, therefore, the appellant could not be held liable under section 307 PPC. In this respect, it is enough to say that the appellant had given the churri blow to the victim Muhammad Mushtaq PW on his chest, which is a vital part of the body, therefore, he had been rightly convicted by the learned trial court for the murderous assault under Section 307 PPC. The conviction and sentence of Muhammad Latif appellant under section 307 PPC is therefore, maintained. The co-accused Muhammad Mansha is however, not vicariously h'able as held above for causing injury to Muhammad Mushtaq PW. Therefore, he is acquitted on the charge under section 307 PPC and the sentence awarded to him under that section is set aside. 23. In view of the above finding, the Criminal Appeal No. 734/91 filed by Muhammad Mansha is partly accepted and his conviction and sentence under section 307 PPC is set aside. The conviction under Section 302 PPC passed against the appellant by the learned trial court is maintained and the appeal to that extent is dismissed with the modification that the sentence of death is converted into imprisonment for life. As such death sentence is notconfirmed. Murder Reference No. 559/91 also stands disposed of accordingly. The sentence of fine of Us. 10,000/- is maintained and if realised, shall be paid as compensation to the heirs of deceased under Section 544-A Cr.P.C. Benefit of section 382-B Cr.P.C. is also extend to the appellant. The Criminal Appeal No. 702/91 filed by Muhammad Latif is also partly accepted and his conviction and sentence under section 302 PPC as indicated above is set aside, and the appellant is acquitted on that charge. His conviction and sentence under section 307 PPC and fine of Rs. 4.000/- is maintained and his appeal to the extent is dismissed with the modification that the fine if realised shall he paid to Muhammad Mushtaq injured PW as compensation under Section 544-A Cr.P.C. he is on bail and shall be arrested and committed to prison for undergoing the above sentence. Criminal Revision Petition No. 600/91 is accordingly disposed of in the light of above observations. 25. The benefit of Section 382-B Cr.P.C. shall be extend to both the appellants namely Muhammad Mansha and Muhammad Latif. (S.R.) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1323 Present: MUHAMMAD NASEEM, J. Mst. ZUBEDA-Petitioner versus SHO--Respondent Cr. Misc. No. 251-H of 1995, decided on 20.8.1995. Criminal Procedure Code, 1898 (Act V of 1898)- —-S. 49l~Petitioner a lady recovered by Bailiff from house at distance of 100 yards from police station, Thana Moharir was also present there-- Although Detenue was accused of an FIR registered at Police Station but her arrest was not entered in daily diary-Held: High Court is of the view that due to incorporation of sub section 5 in section 167 Cr.P.C. introduced through Act XX of 1994 where by a female cannot be detained at police station at night Mst. Noor Begum was confined in a house at a distance of 11 yards from the building of police Station from where she was recovered by Bailiff in the company of petitioner and Moharir TAaraa-Since her arrest was not shown in daily diary of police station s e was held to be a detenue and was set at liberty to go to a place of her own choice-Petition allowed. [Pp. 1324 & 1325] A & B SyedZA. Bukhari, Advocate, for Petitioner. Jamshed Akhter Khokhar, Advocate, for Respondent. Date of hearing: 20.8.1995. judgment Mst. Zubaida is the daughter of Mst. Noor Begum alias Baigan and sister of Riaz Ahmad minor aged ten years. She has filed this application under section 491 Cr.P.C. for the recovery of her aforesaid both the relatives from the alleged illegal and improper custody of the SHO Police Station Ghumand Pur, District Bahawalnagar. According to the petitioner the alleged detenues were being kept either in the precincts of Police Station Ghumand Pur or in a house situated near the said Police Station. This petition was supported by an affidavit. 2. A Bailiff was desputed for the recovery of both the aforesaid alleged detenues. Mst. Noor Begum alias Baigan was recovered by the Bailiff after 9.35 p.m. on 15.8.1995 from a house situated at a distance of 100 yards from the building of Police Station Ghumand Pur when Thana" Clerk/Moharir was also with him. Mst. Noor Begum alias Baigan intimated the Bailiff that she was being confined in the house while her son Riaz hmad detenu was confined in the lock-up of Police Station Ghumand Pur. However, Riaz Ahmad.was not available in Police Station Ghumand Pur and the Bailiff was intimated by the police that he was not arrested. The Police informed the Bailiff that Mst. Noor Begum alias Baigan was accused of the case FIR No. 103 dated 12.8.1995 registered under Article 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 who even then was not arrested in that case. The Daily Diary was checked wherein the arrest of Mst. Noor Begum alias Baigan was not entered. 3. On 16.8.1995 Mst. Noor Begum alias Baigan was produced by the Bailiff before this Court. The SHO was also present. Her husband Ghulam Rasool, her son Muhammad Iqbal (a Hafiz-e-Quran) and her daughter Mst. Bushra were also present. The aforesaid FIR No. 103 dated 12.8.1995 registered at Police Station Ghumand Pur is with respect to the alleged abduction of Mst. Bushra which was got recorded by one Muhammad Anwar who claimed to be her husband. However, Mst. Bushra denied the said fact and expressed that she was not his wife who forcibly removed her. She has intimated that her fair were cut by Muhammad Anwar complainant with the help of the Police who had also chained her but later on she was released. It is simply unfortunate in our Islamic State that hair of Mst. Bushra have een cut in the aforesaid manner when in our social life the hair of a lady are the mark of honour and respect. . , 4. My view is that due to the incorporation of sub-section 5 in section 167 Cr.P.C. introduced through Act XX of 1994 whereby a female cannot be detained at the Police Station at night Mst. Noor Begum alias Baigan was being confined in a house at a distance of 100 yards from the building of Police Station Ghumand Pur from where she" was recovered by he Bailiff in the company of the petitioner and the Moharir Thana. Since her arrest was not shown in the Daily Diary of Police Station Ghumand Pur she was held to be a detenue and was set at liberty to go to a place of her own choice vide order dated 16.8.1995. 5. I directed the SHO Police Station Ghumand Pur to produce Muhammad Anwar complainant of aforesaid FIR No. 103/95 registered under Article 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Today Muhammad Anwar is present alongwith Mr. Jamshed Akhtar Khokhar, Advocate. About Riaz Ahmad no relief is being claimed today. I proceed to take up the aforesaid FIR No. 103/95 registered at Police Station Ghumand Pur, District Bahawalnagar at the instance of Muhammad Anwar under Article 16 of the Offence ofZina (Enforcement of Hudood) Ordinance, 1979 for its quashment for the reason that the accused mentioned therein are the closest possible relatives of Mst. Bushra, alleged abductee. Mst. Noor Begum alias Baigan accused is her mother. Ghulam Rasool accused is her father. Muhammad Iqbal accused is her brother. Hashim All is the husband of her sister Mst. Zubaida, petitioner of this petition. Dilbar is her "Behnoi" being the husband of her sister Mst. Waziran while Allah Rakhah and Allah Ditta accused are respectively the brother and father of the said Dilbar accused. I am in full agreement with the learned counsel for the accused persons that with the help of some influential person Muhammad Anwar succeeded in getting the help of the police and getting recorded the aforesaid FIR to fetch Mst. Bushran while there is no justification for proceeding against the accused persons or to proceed with the investigation of the case. Some male person as accused had to be got entered in the FIR and in the present FIR some male persons closely related to Mst. Bushra have been mentioned as the persons who abducted her while this fact is not being admitted by her who is present in the Court even today. The primary duly of the police is to maintain the law and order situation and by indulging in such activities not only other they are bringing bad name to the Department which is at the verge of its collapse they are also wasting the time and obviously with ulterior motives and the reasons best known to hem. Whole of the family has been roped in by Muhammad Anwar so that except Mst. Bushra there is no body out of the lock-up and he has the open filed to act according to his own desires. The FIR No. 103/95 is held to have been registered at Police Station Ghumand Pur without any legal justification with the help of some influential person of the area. I am tempted to express that such incident(s) (episode(s) of registration of cases) occur/take place when there is loose control of the Station House Officer who has to adopt such a working at the behest of some influential person of the area who controls him by getting him posted at the Police Station. The close relationship of the accused persons mentioned in t he aforesaid FIR is enough to make me hold that it is a good case for quashment of the same. I, therefore, quash FIR No. 103/95 registered at Police Station Ghumand Pur, District Bahawalnagar. I was going to fine Muhammad Ramzan SHO P.S. Ghumand Pur who seems to be working as the domestic servant of the influential person(s) of Tehsil Minchinabad, District Bahawalnagar, but due to his advanced age I have restrained myself. However, he is directed to be careful in future so far as Mst. Bushra and the accused persons of the aforesaid FIR, being quashed through this order, are concerned. He shall not tease or vex them at the direction of any influential person of the area failing which the matter shall be reopened against him. 6. A copy of this judgment shall be sent to the Superintendent of Police, Bahawalnagar so that he has proper control on his subordinate(s). (S.R.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1328 [Multan Bench] Present: MUHAMMAD NASEEM, J. AMEEN-UD-DIN and 3 others-Petitioners versus STATE-Respondent Criminal Misc. No. 257-B-1996, decided on 3.3.1996. (i) Bail- --S. 497/498--Cr. P.C.--Offence U/Ss. 302/324/148/149 of PPC-Bail-Grant of--Prayer for--Petitioners excepts Liaquat All attributed "Lalkara"— Double murder-Earlier laid application rejected by trial Court and High Court-After 4 months after submission of challan and framing of charge, S.P. Crime Branch conducting fresh investigation and declaring petitioners (except Liaquat Ali innocent-Thereafter trial Court rejected second bail application-Held: High Court has already expressed its view about role of Lalkara while dismissing previous application-After submission of challan, when charge has already been framed there was no justification for further investigation, whereas opinion of S.P. Crime Branch is based on same evidence collected by two Investigating Officers- Five prosecution witnesses have already been examined-Opinion of S.P. Crime Branch is ignored-Petition dismissed. [Pp. 1330,1331 & 1332] A, B, E, F & H (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- ---- Ss. 156 & 173-Belated investigation of a case has to be curbed especially when there is an amendment in procedural and substantive law through incorporation of Proviso to sub-section (1) (B) of Section 173 Criminal Procedure Code through Ordinance No. XXV of 1992-Wisdom behind this introduction/ incorporation of proviso to Sub-section (1) (b) of S. 173 Cr.P.C. is creation of a sort of check/restraint/censorship upon police working as protracted investigation, especially through transfer of investigation. [P. 1331] C & D~ (iii) Sessions Trial- —-Due sanctity must be granted to Sessions Trial which should not be dealt with like a theft case-Sessions trial should be given seriousness which they deserve-Trial court should fix these cases on specified days in a week and should not crowed cause list for those days—Attention of trial Courts is drawn towards instructions contained in Part-B, Chapter XXIV, High Court Rules and Orders Volume III. [P. 1332] G Malik Muntazir Mehdi, Advocate, for Petitioners. Sh. Naseem Rashad, Advocate for the State. Date of hearing; 3.3.1996. order On 25.8.1994 at 8.00 p.m. in Chowk Bazar near Chowk Paan Wala Multan an occurrence took place wherein two persons namely Muhammad Ayyub and Abid Hussain were murdered. F.I.R. No. 200 dated 25.8.1994 was registered at 10.00 p.m. under sections 302, 148/149 PPC at the instance of Muhammad Sadiq complainant, brother of Abid Hussain deceased. Muhammad Sadiq complainant got recorded in the FIR that he was present at his sugar-cane Bailna in Chowk Bazar near Chowk Paananwala, Multan. In front of his shop there was the shop of Muhammad Ayyub deceased on which his brother Abid Hussain deceased was also sitting with him while both of them were talking. Meanwhile the accused persons namely Ghulam Mohay-ud-Din alias Haji Babu, Ahmad, Liaquat Ali (petitioner-accused) each armed with Khanjar, Amanat Ali armed with hatchet as well as the petitioners-accused Alla-ud-Din, Nihal-ud-Din and Amin-ud-Din each armed with Chhuri came on the shop of Muhammad Ayyub who raised the lalkara that they would not go unescaped. Ghulam Mohay-ud-Din co-acccused inflicted the Khanjar blows on the person of Muhammad Ayyub deceased which fell on his right arm and chest Ahmad co-accused gave the Khanjar blows which hit the back head, throat and left shoulder of Abid Hussain. Liaquat accused-petitioner gave the Khanjar blows on the abdomen and fore­head of Muhammad Ayyub deceased who also gave the Khanjar blow on the left buttock of Abid Hussain deceased. Amanat co-accused gave the hatchet blows on the left thigh and left wrist of Muhammad Ayyub deceased and also gave the hatchet blow on the back of Abid Hussain deceased. The petitioners-accused Alla-ud-Din, Nihal-ud-Din and Amin-ud-Din each armed with Chhuri remained raising the lalkaras to the effect that whosoever would come close will have to face the dire consequences and due to that he could not go close to the occurrence. Muhammad Amin and Muhammad Yasin p\ys also saw the occurrence. Muhammad Ayyub and Abid Hussain expired. The motive for the occurrence is stated to be that Muhammad Ayyub deceased had the dispute of "Khokha" with accused persons regarding which the civil suit was pending in a Court of law and preventive proceedings were conducted and that all the accused persons who were related inter se in prosecution of common object murdered Muhammad Ayyub and Abid Hussain. 2. Alla-ud-Din, Nihal-ud-Din and Amin-ud-Din petitioners, who have been attributed the role of lalkara, filed their application before the lower Court for their admission to bail which was dismissed. They filed CrL Misc. No. 1941/B/94 for their admission to bail before this Court which was dismissed on 9.2.1995. 3. After completing the investigation the police concerned submitted the challan for the prosecution of the accused persons including the petitioners-accused on 27.3.1995. The accused persons were charged on 0.4.1995 on two counts under sections 302/148/149 PPC by Mahr Ghulam Farid Naul, Additional Sessions Judge, Multan. The present position is that five PWs have been examined during the trial by the said Court of Session and tomorrow (4.3.1996) is the next date for recording the remaining prosecution evidence. 4. After submission of the challan on 27.3.1995 and framing of charge on 30.4.1995 fresh investigation was conducted by the Superintendent of Police, Crimes Branch, Multan who has declared Alla-ud- Din, Nihal-ud-Din, Amin-ud-Din and Liaquat petitioners-accused as innocent. Thereafter the aforesaid four petitioners-accused made their application before the Trial Court for their admission to bail which has been dismissed. Hence this petition with the same desire. 5. I have heard the learned counsel for the petitioners as well as learned counsel for the State and gone through the record before me. The main contention of the learned counsel for the petitioners is that except Liaquat Ali petitioner the remaining petitioners-accused have been attributed the proverbial role of lalkara who have been declared as innocent during the investigation conducted by the Superintendent of Police, Crimes Branch, Multan and thus their case alongwith Liaquat Ali petitioner-accused who has also been declared as innocent has become that of further inquiry. He maintained that Alla-ud-Din has been declared as innocent as his plea of alibi has been accepted which has been proved through the statement of a lady doctor with whom the wife of the said petitioner remained as she was in the family way when the said petitioner was also present there. He maintained that the petitioners cannot be detained as a punishment On the contrary the contention of the learned counsel for the State is that on the basis of the same evidence the Superintendent of Police, Crimes Branch, Multan has given a contrary view who cannot sit as appellat authority of both the Investigating Officers who initially investigated the case and held the petitioners as the accused of the case. He added that about the role of lalkara the view has already been expressed by this Court on 9.2.1995 when the petition for the admission of the concerned three petitioners-accused to bail was dismissed. I am of the view that it is not a case for the admissioa of these four petitioners-accused to bail. As rightly expressed by the learned State counsel the view about the raising of the lalkara has already been expressed by this Court while dismissing the bail plea of the aforesaid three :oncerned petitioners-accused on 9.2.1995 who have not been given any concession in the matter which has been reiterated today. On the basis of the jrevious findings on this aspect of the matter no contrary view can be impressed and the same has fizzled out 6. With respect to the reinvestigation conducted by the Superintendent of Police, Crimes Branch, Multan suffice it to express that '- the view about the innocence of the four petitioners-accused has been expressed by him on the basis of the same evidence collected by the two Investigating Officers earlier. He cannot sit as an appellate Authority even though he is a superior police officer. Further in the instant case the challan was submitted on 27.3.1995 and the charge was framed against the petitioners-accused as well as their co-accused on 30.4.1995 while the opinion about the innocence of the four petitioners was expressed on 26.8.1995 by the Superintendent of Police, Crimes Branch, Multan. The belated investigation of a case has to be curbed especially when there is an amendment in the procedural and substantive law through the incorporation of proviso to sub-section l(b) of section 173 Criminal Procedure Code through Ordinance No. XXV of 1992 made operative with effect from 12.12.1992. According to this provision of law after the lapse of a period of 14 days from the date of recording of the first information report in case the investigation is not completed, within a period of next three days the interim challan has to be submitted by the police before the Area Magistrate who has to decide whether or not to start the trial. In the instant matter the challan was submitted on 27.3.1995 and the accused persons including the petitioners were charge-sheeted on 30.4.1995 under sections 302/148/149 PPC on two counts. The wisdom behind the introduction/incorporation of proviso to sub-section (1) (b) of Section 173 Cr.P.C. is the creation of a short of check/restraint/censorship upon the police working as the protracted investigation, especially through transfer of investigation, is one of the reasons whereby the law and order situation is worsening in the Province. It is also lowering the authority and prestige of the concerned Station House Officer(s) of the Police Station(s) viz-a-viz the accused person(s). It is a matter of common scene that after the transfer/change of the investigation, according to law a case can be reinvestigated, the different view is generally expressed by the new Investigating Officer about the facts of the occurrence and fate of the same. In the instant matter there are eye-witnesses who saw the occurrence. The investigation of this case was completed and the challan was submitted on 27.3.1995. The accused were charge-sheeted on 30.4.1995. Thereafter there was no justification to further process with the investigation which was nothing but to help the accused persons as the version of the prosecution was contained in the challan indictment submitted under section 173 Cr.P.C. According to me the view which is for the tterment of the society at the present time, when the law and order situation is worsening, must be given the weight and followed. After the charge has been framed by the trial Court, the exception and the cross version, if any, can be agitated by the accused persons during the cross-examination on the prosecution witnesses and the benefit of the opinion of the Superintendent of Police, Crimes Branch, Multan cannot be granted to them at this stage while disposing of this application. This free hand cannot be allowed to a police officer of any rank otherwise there would be judicial anarchy resulting in administrative chaos. The different opinion of the Investigating Officers on the basis of which the petitioners are relying cannot be termed as sacrosanct as there are different opinions of the Investigating Officers. Now the matter is with the trial Court which is the best judge to reach at the right conclusion according to the evidence to be adduced by the parties and the stand to be taken by them. The opinion of the Superintendent of Police, Crimes Branch, as such, is ignored which is of no help to the four petitioners-accused. 7. For what has been said above, I see no merit in this petition and dismiss the same. 8. Before parting with this order I have to express that it is simply alarming and surprising that the accused persons were charge-sheeted on 30.4.1995 while till to day only five PWs have been examined. The case is fixed for recording the remaining evidence on 4.3.1996. The due sanctity must be granted to the Sessions trial which should not be dealt with like a theft case. The Sessions trials should be given seriousness which they deserve. The trial Court should fix these cases on specified days in a week and should not crowd the cause-list for those days. The attention of the trial Court is drawn towards the instructions contained in Part-B Chapter XXIV High Court Rules and Orders Volume-Ill. Mahr Ghulam Farid Naul, Additional Sessions Judge, Multan is directed to conclude the trial till 22.4.1995 positively under intimation to the Additional Registrar of this Court (MAA) Petition dismissed/Direction given.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lah.) 1332 [Bahawalpur Bench] Present: abdul hafeez cheema, J. MUHAMMAD BOOTA etc.»Petitioners versus STATE etc.-Respondents. Criminal Misc. No. 1-T/96/BWP decided on 11.2.1996. (!) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 526-read with S. 302/324/148/149 of Pakistan Penal Code, 1860- Criminal case-Transfer of-Complainant not feeling satisfied got case transferred to present Court-Contention, that notwithstanding the successive directions from High Court, case remains unconcluded and petitioner with 11 (eleven) others is languishing in Jail for over 3^ years- Alleged further that Presiding Officer is close relative of Local M.P.A. who is friendly with one Advocate, who accompanied complainant for registration of case-This trio was seen meeting quite often in Chamber of Presiding Officer-Preisding Officer is prejudiced against petitioner who showed threatening posture declaring he will convict them—Record not showing Judge is biased against petitioner or has any inclination toward complainant-Assertions made in petition do not appear to be founded on reasonable apprehension is dismissed-However, Court was directed to decide case within 1 \ month. [Pp. 1334,1335 & 1336] A, B, C, D, F PLD 1973 SC 327 ref. (ii) Judge and Administration of Justice- —A Judge is expected to remain composed in face of insinuations and is supposed to do justice to litigants because it is one of most sensitive and most sacred duties cast upon him-Slightest deliberate deviation from correct path may render him severly accountable before the Almighty-­ Views of Imam Nawawi, a celebrated author of MINHAJ-ET-TALJBIN (A Manual of Muslim Law), P. 504, Edn. 1914—The author writes:- "It is blamable in a Judge to deliver a judgment when he is angry or hungiy or in a state of excessive satiety or in general when he is in any physical state likely to trouble his mind." [P. 1336] E Mian Abdur Rashid, Advocate, for Petitioners. Mr. Mumtaz Hussain Bazmi, Advocate, for Respondents. Date of hearing: 11.2.1996. order Muhammad Boota, Zulfiqar and Mubarak Ali, accused of offences under sections 302/324/148/149 PPC vide FIR No. 184/92 dated 14.5.1992, have petitioned under section 526, Cr.P.C. for transfer of their case, pending in the court of Mr. Muhammad Aslam Khan, learned Additional Sessions Judge, Rahimyar Khan. 2. It appears essential to give brief resume of the facts in order to appreciate this application. Ghulam Mustaf son of Ghous Bakhsh Sulangi of Chak No. 122/P, Tehsil Sadiqabad, District Rahimyar Khan lodged a complaint with the police on 14.5.1992 at about 8.30 a.m. that one Yasmin daughter of Muhammad Yaqoob had married to Yasin, a cousin of the complainant against the will of her parents. A case was accordingly registered for abduction against Yasin and a few others. On the crucial date Yasin, Yasmin and their other relatives were proceeding to the District Courts in connection with their pre-arrest bails. When their wagon arrived near Rashidabad, the present petitioners alongwith others, while armed with deadly weapons laid ambush, stopped the wagon by brusting its tyres, entered into the wagon and resorted to firing as a result of which Luqman and Hanif died and 7 other persons were injured. Mst. Yasmin was dragged out and was later on murdered for which a separate case FIR No. 99/92 at P.S. Saddar Sadiqabad was registered. 3. his case was entrusted to Jam Muhammad Hyas, the then Addl. Sessions Judge, Rahimyar Khan. The complainant side did not feel satisfied with the way the learned Judge was proceeding with the case and moved an application for its transfer. The High Court accepted the plea and transferred the case to Mr. Muhammad Aslam Khan, learned AddL Sessions Judge, vide order dated 3.8.1995. It is also noteworthy that through a separate criminal miscellaneous, petitioner had asked for bail which was refused by my learned brother, Tassaduq Hussain Jillani, J. but the trial court was directed to dispose of the case within the given time. 4. It is submitted by the learned counsel for the petitioners that notwithstanding the successive directions from this court, the learned trial court has not been able to conclude the trial and the petitioners and 11 others are languishing in jail for over 3h years; that the case was registered at the instance of the complainant when he was accompanied by Muhammad Azeem Sulangi and advocate of Rahimyar Khan, one Azhar Lughari MPA who happens to be a close relative of the learned Presiding Officer is friendly with aforesaid Azeem Sulangi and the trio have been seen meeting quite often in the chamber of the learned Judge; that despite repeated directions of the High Court, the learned Judge has not been able to dispose of the matter and it appears that he is prejudiced against them as he showed his threatening posture and declared that he will convict them in any event 5. Comments of the learned Presiding Officer were sought He has denied that any one had approached him or he was in any way influenced by the complainant party or the other side. As for delay, he has detailed certain circumstances, reasons for which he has not been able to dispose of the cage as per directions of the High Court. In the end he has expressed no objection to the transfer of this case to any other court of competent jurisdiction. 6. Arguments have been heard and record perused. It is submitted the learned counsel for the petitioners that there have been three directions from this court but the learned Judge has not been able to complete the trial. Learned counsel for the complainant, on the other hand, has pointed out that in reply to the assertions made in the transfer petition, the learned Judge has given his detailed reply stating the circumstances which prevented him from deciding the .case within the given period, and they are reasonable, genuine and apt According to the learned Presiding Officer, although the case file had been received in his court on 3.9.1995, but per chance he was on leave. The case was put up on 17.9.1995 when he happened to be on tour to Khanpur and thereafter the learned Judge due to his personal predicament (serious ailment of his mother who was admitted to Nishtar Hospital, Multan) remained on leave on 27.9.1995,12.10.1995 and 25.10.1995. Consequently, the file was put up before him on 8.11.1995 and was adjourned to 6.12.1995 at the request of learned DDA for filing the report of Serologist which had to be procured from Islamabad. Subsequently the matter was adjourned to a few dates for the production of this document without which the trial could not have been completed. 7. As for relationship with Azhar Lughari MPA who is allegedly a friend of Mr. Azeem Sulangi Advocate, the learned Judge, as referred to above, has denied these allegations. In view of his clear denial there is nothing on the record to establish that there is any truth in the assertions made by the petitioners. 8. In support of his contentions, learned counsel for the petitioners has made reference to PLD 1973 S.C. 327, wherein principles governing the disposal of transfer applications have been laid down. It is argued by him that in the given circumstances of the case, the petitioner's apprehension that justice will not be done to them is reasonable because the very attitude of the learned Judge appears to be tainted with prejudice against them. It appears instructive to reproduce the relevant portion of the judgment of the Supreme Court:- "It is of paramount importance that the parties arraigned before the courts should have confidence in their impartiality. It is one of the important duties of a High Court to create and maintain such confidence, and this can be done only by ensuring that, so far as practicable, a party will not be forced to undergo a trial by a Judge or Magistrate whom he reasonably regards as being prejudiced against him. What is reasonable apprehension must be decided in each case with reference to the incidents and the surrounding circumstances; and the Court must endeavour, as far as possible to place itself in the position of the applicant seeking transfer, and look at the matter from his point of view, having due regard to his state of mind and the degree of intelligence possessed by him. Nevertheless, it is not every incident regarded as unfavourable by the applicant which would justify the transfer of the case. The test of reasonableness of the apprehension must be satisfied, namely, that the apprehension must be such as a reasonable man might justifiably be expected to have." In this case the learned Presiding Officer has denied that he was nfluenced by any MPA or any other person. He is positive that he will be able to do justice in any manner without showing any ill will or favour to any side. 8. Learned counsel for the petitioners has also referred to the trend and tenor of the comments which displays feeling of anger of the Presiding Officer over filing of this petition. Learned counsel for the respondents, however, pointed out that like an honest officer, the learned Judge has placed the true picture before this court and if a man of integrity is attributed certain unfounded allegations, he indeed feels bitter. This is what appears to be with this case. Nevertheless, the learned Judge possesses good reputation and will be able to do justice in any event. Nothing has come on the record to indicate that the learned Presiding Officer is either biased against the petitioners or has any inclination towards the complainant Although in the selection of his words in reply to the assertions made in this petition, the learned Judge appears to be little stung by the allegations levelled against him, nevertheless, in view of the trust reposed in him by this court in various cases, he is expected not to fall short of the balance and should foster justice without fear and favour and without any sort of prejudice against either side, 10. A Judge is expected to remain composed in face of insinuations and is supposed to do justice to the litigants because it is one of the most ensitive and most sacred duties cast upon him. The slightest deliberate deviation from the correct path may render him severally accountable before the Almighty. It would be instructive to refer here to the views of Imam Nawawi, a celebrated author of Minhaj Et Talibin (A Manual of Muslim Law) at page 504 of 1914 Edition. The author writes: "It is blamable in a Judge to deliver a judgment when he is angry or hungry or in a state of excessive satiety or in general when he is in any physical state likely to trouble his mind." 11. The assertions made in the petition do not appear to be founded on reasonable apprehension, as such, the petition is hereby dismissed. However, the learned trial Judge is expected to decide the matter calmly and cooly, notwithstanding, the allegations levelled against him keeping in view the sublime traditions of the judiciary. He shall dispose of the case before 31st of March, 1996 even if he has to proceed one day to day basis, under intimation to D.R. (J) of this court. (MAA) Petition dismissed/Direction given.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1337 [DB] [Bahawalpur Bench] Present: ch. khurshid ahmad and muhammad islam bhatti, JJ. ABDUL RAZZAQ-AppeUant versus STATE-Respondent Criminal Appeal No. 73 of 1992/BWP (M.R. No. 9 of 1993/BWP) decided on 31.1.1996. (i) Child witness- —Murder-Offence of~Conviction for~Challenge to~No mention has been made about child whom accused had allegedly taken away to his Chobara a day earlier-Investigation was not carried out with care-Both eye­ witnesses and I.O. have not been cross-examined on this point-Held: Child would have been most natural witness and failure of prosecution to make any mention of him in their entire evidence, gives rise to a strong presumption that all story is concocted one and might have been fabricated to provide a plausible justification for visit of complainant and her son-in-law to Chobara and then become natural witnesses of occurrence. [P. 1346] F (ii) Criminal Trial- —Murder-Offence of~Conviction for-Challenge to-Both eye witnesses are unanimous in claiming that moment they reached upstairs, they saw appellant committing murder of deceased-It is highly unbelievable, rather un-inuginable that appellant could flee away from same stairs and all three of them, i.e. complainant, her son and daughter could not catch hold of accused-It is most un-natural for P.W. 4 to state that he did not try to apprehend accused when according to his own version, distance between place where deceased was lying and where staircase ended, was 2/3 feet-Held: PWs, failed to catch hold of accused obviously because they had not seen occurrence and they were not present at time when deceased was murdered. [Pp. 1345 & 1346] E (iii) Criminal Trial- —Murder-Offence of~Conviction for-Challenge to-Evidence regarding accused living at Chobara, which is alleged to be scene of occurrence, is also lacking-It is really shocking to note that trial court also proceeded on premises that accused had his ordinary residence at Chobara and observed that onus shifted upon accused to explain how occurrence had taken place on his residential cfto&ara-Accused, in his statement, had denied that he had his abode on c/io6ara--Observation of trial court about shifting of onus was result of misreading and non-appreciation of evidence-Held: Prosecution has very badly failed to establish guilt of accused beyond reasonable doubt-Appeal accepted. [Pp. 1346 & 13147 & 1348] G, H & J (iv) First Information Report- —-Murder-Offence of-Conviction for-Challenge to-Sub-Inspector recorded statement of complainant at spot where she met him-There was no occasion for complainant to meet Sub-Inspector of Saddar Pulli~It has been observed in more than one judicial pronouncements that when an S.I. meets a complainant accidently on his/her way to police station, ordinary presumption is that F.I.R. was drawn up at spot-Held: Edifice built upon such an F.I.R. and testimony of witnesses who as per their 98 ^ own showing, chanced upon scene of occurrence as if accused was waiting for them to arrive, falls to ground and renders entire prosecution case totally unbelievable even for a person of very ordinary prudence. [P. 1343 & 1344] A 1969 P.Cr.L.J. 1204 rel. (v) Motive- —Murder-Offence of-Conviction for-Challenge to-Motive set up was that deceased was a mid-wife and she wanted to serve as such but appellant was against it-This piece of evidence, even if it be believed, is not at all — sufficient to establish motive-Held: It is settled law that it is not necessary for prosecution to set up motive but where it has set up motive and failed to establish it, then it is prosecution which must necessarily suffer on that account. [P. 1344] B & C (vi) Ocular account- -—Murder-Offence of~Conviction for-Challenge to-Complainant and her son have not been able to make a cogent, consistent and convincing account of occurrence-Their presence at spot is doubtful-Held: In fact, both of them have made an inconsistent account which has rendered their evidence of extremely doubtful import. [P. 1345] D M/s Abdul Aziz and Talat Mehmood Rehan, Advocates, for Appellant. Rqja M. Sohail Iftikhar, Advocate, for State. Date of hearing: 31.1.1996. judgment Muhammad Islam Bhatti, J.-This Cr. Appeal No. 73 of 1992 and connected Murder Reference No. 9 of 1993 arise from the judgment of learned Additional Sessions Judge, Bahawalpur, dated 31.8.1992 whereby he convicted Abdul Razzaq (35) s/o Nazir Masih, a nau muslim r/o Chak No. 12/BC under section 302(b) Criminal Law Amendment (Qisas and Diyaf) Ordinance 1991 and sentenced him to suffer death as Tazir. 2. The prosecution case, briefly stated, is that on 15.11.1991 Syed Azhar Russian Shah S.I. (PW5) while posted at P.S. Civil Lines Bahawalpur was present at Saddar Pulli in connection with usual patrol in his beat when Mst. Hamidan w/o Ghaman, caste Christian, complainant in this case (PW3) met him and got her statement Ex. PC recorded, which reads as under: - "I have my residence at Bhatta No. 2.1 have four daughters who are all married. About seven years back, I married my daughter Nighat Perveen with Abdul Razzaq s/o Nazir Masih, a nau muslim r/o Chak No. 12/BC. Out of this wed­lock, they have two sons named Faraz aged six years and Farhan aged three years. My son-in-law Abdul Razzaq is employed as a Dealer in Malik Corporation in Fauji Basti and has his temporary residence in the Chobara of the said Malik Corporation. Nighat Perveen lives with me at Bhatta No. 2 alongwith her children. She wanted to join some service but Abdul Razzaq did not agree. Both of them were, therefore, not happy with each other on this account. Yesterday, Abdul Razzaq came to my house Shaam Valley (in the evening). While going back, he took alongwith him his son Faraz, to the Chobara where he lived. Today, Nighat Perveen went to Abdul Razzaq at the said Chobara in order to bring Faraz back. As she did not turn up upto Asar Vaila, I alongwith my daughter Mst. Rifaat w/o Palous Gill and my son-in-law Palous reached Malik Corporation, Fauji Basti. We heard the noise and the hue and cry raised from the said Chobara. We rushed to the Chobara and saw Abdul Razzaq sitting on the chest of my daughter Nighat Perveen with a cloth around her neck which he was holding in both of his hands and was twisting/winding the same with full force. He was also exclaiming that he would not leave her alive. On seeing us, he immediately left Nighat Perveen and fled away. We immediately attended to Nighat who had already expired. Abdul Razzaq had murdered Nighat without there being any good reason. I was on my way to the police station for lodging a report, after leaving my daughter Rifaat and Palous Gill to keep guard over the dead body when I have met you." 3. After recording this statement, Syed Azhar Hussain Shah read it over to Mst. Hamidan Bibi who thumb marked the same in token of its correctness. He then forwarded this complaint Exh. PC through Muhammad Yaqoob F.C to the police station for recording of formal FIR. Ex. PC/1 is the copy of the formal FIR. 4. This S.I then visited the post and prepared inquest report Exh. PD and injury statement of the deceased Nighat Perveen Exh. PF and then handed over the dead body of the deceased to Muhammad Iqbal (PW2) for escorting the same to the mortuary. 5. It was on the following day i.e. 16.11.1991 at about 10.00 a.m. that Dr. Muhammad Anwar CMO B.V. Hospital Bahawalpur (PW 6) performed postmortem examination on the dead body of Nighat Perveen. According to his Doctor, her Dopatta was stained with blood and tightly wrapped around the neck. After removing Dopatta, he found ligature mark around the neck and another incised wound on the left angle of the mouth measuring \ x \". On dissection of the neck he found that echymosis was present under the skin on the ligature area. Hyoid bone was fractured in middle. Postmortem staining were present on the back of the dead body. All other organs were healthy and normal and no abnormality was detected. 6. After doing the external and internal post mortem examination, the Doctor formed the opinion that the cause of death was asphyxia. All the injuries were ante-mortem in nature. The time between death and postmortem was within 24 hours and the time between injury and death within five minutes. 7. The postmortem examination being over, he handed over the dead body and last worn clothes of the deceased to the police. Exh. PH is the correct carbon copy of his postmortem report which is in his hand and bears his signatures. 8. Muhammad Iqbal PW 2 had accompanied the I.O to the place of occurrence and had escorted the dead body to the mortuary. Shalwar P-l, Qameez P-2 and Dopatta P-3, the last worn clothes of the deceased were handed over to him by the Doctor and he produced the same before the I.O who took them into his possession vide memo Exh. PB in the presence of Palous Gill (PW4) and Jalal. 9. Riyasat Ali PW 1 had on the asking of the I.O. on 17.11.1991 prepared site plan Exh. PA and Exh. PA/1 on the pointation of the PWs. 10. The accused was arrested on 16.11.1991 and after completion of investigation, PW5 handed over the file to the SHO who drafted report U/S. 173 Cr.P.C. and submitted the challan in court 11. It was on 14.7.1992 that Abdul Razzaq accused was charged U/S. 302 of Qisas & Diyat Ordinance by the learned Addl. Sessions Judge Bahawalpur on the allegation that on 15.11.1991 at about Asar Vaila on the Chobara of Malik Corporation Fauji Basti, within the jurisdiction of P.S. Civil Lanes, he committed the murder of his wife Nighat Perveen daughter of the complainant. He pleaded not guilty to the charge and faced trial. 12. It was then that the prosecution produced Riyasat Ali Patwari (PW1), Muhammad Iqhal (PW2), Mst. Hamidan Bihi complainant (PW3), Palous Gill (PW4), Syed Azhar Hussain Shah Sub-Inspector (PW5) and Dr. Muhammad Anwar (PW6) to establish the guilt of the accused. Mst. Rifaat Perveen, Nazir Gill and Jalal Masih were given up as unnecessary. The prosecution then closed their case on 24.8.1992. It was on 25.8.1992 that the statement of the accused was recorded U/S. 342 Cr.P.C. 13. To give a resume of the prosecution evidence, Riyasat Ali Patwari (PW1) had prepared the site plan while Muhammad Iqbal (PW2) had escorted the dead body to the mortuary and had produced the last worn clothes of the deceased handed over to him by the Doctor before the I.O, as mentioned above. 14. Mst. Hamidan Bibi complainant entered the witness box to give the eye witness account of the occurrence. After claiming that Mst Nighat Perveen was her daughter and was married with Abdul Razzaq accused about seven years back and two sons were born from their wed-lock, she deposed that Abdul Razzaq alongwith his children resided with her. He was employed at Malik Corporation. She then claimed that Abdul Razzaq had his ordinary abode at Malik Corporation in one room in the upper storey. One day prior to the occurrence, Abdul Razzaq took alongwith him his son. On the next day, her daughter Nighat Perveen went to Malik Corporation in order to bring her son back. Till evening, she did not turn up. In the meantime, her daughter Rifaat and her son-in-law Palous came to her house. He asked them to inquire about her daughter Nighat Perveen. They accompanied her to Malik Corporation at Asar Vaila. When they reached there, noise was coming from the Chobara. They went to Chobara where Abdul Razzaq accused was sitting on the chest of her daughter and was strangulating her with her Dopatta. After seeing them, he left her daughter Nighat Perveen and went away. They tried to attend to Nighat Perveen but she had expired. She then left her daughter Rifaat and her son-in-law Palous near the deadbody and went to lodge a report at the police station. According to her, Inspector met her on the way near Saddar Pulli where he recorded her statement Exh. PC. It was read over to her and she thumb marked the same in token of its correctness. 15. She also explained motive behind the occurrence. She claimed that her daughter Nighat Perveen was a mid-wife and she wanted to serve in some hospital but her son-in-law Abdul Razzaq accused, husband of th deceased, was against her service. So they often quarrelled with each other and it was for this very reason that he committed the intentional murder of her daughter Nighat Perveen. 16. The prosecution produced Palous Gill PW4 to corroborate the version of the complainant as another eye witness of the occurrence. According to him, on the day of occurrence he alongwith his wife Mst. Rifaat went to the house of his mother-in-law Hamidan Bibi. They found her worried. He inquired from her the reason for her disturb nce. She disclosed that Mst Nighat Perveen had gone to Abdul Razzaq at Malik Corporation in the morning, in order to bring her child back and ad not turned up. He, herefore, alongwith his wife and mother-in-law went to Malik Corporation on a motor rickshaw. It was Ishaa prayer time when they alighted from the rickshaw. They hear the noise and were attracted to the spot in the Chobara of Malik Corporation where they saw accused Abdul Razzaq sitting on the chest of Nighat Perveen and strangulating her with her Dopatta. After seeing them Abdul Razzaq left Nighat Perveen and ran away. They tried to attend to Nighat Perveen but she had expired. Her mother-in-law left them near the dead body and her self went to the police station to lodge the report He added that police reached the spot and the dead body was taken into possession by the police. He identified the dead body before the police as also before the Doctor at the time of postmortem examination. He signed the nquest report Exh. PD and also the recovery memo Exh. PB regarding last worn clothes of the deceased and receipt Exh. PE regarding delivery of dead ody to Mst. Hamidan Bibi. He went on to depose that there remained a dispute between the deceased and the accused because Nighat Parveen deceased wanted to join service as mid-wife but the accused was against it and it was for this very reason that he committed her murder. 17. The case of the accused is of total denial. In reply to the question if he has anything else to say, he made the following statemenfc- "My father and mother were Christian. I was also a Christian. I and my mother embraced Islam and my mother contracted marriage with Muhammad Bakhsh who is a Muslim. The Christian fork became inimical towards us. Mst. Nighat Perveen deceased was previously married with Tariq Masih and she embraced Islam and contracted marriage with me with her free will and consent, without permission of her parents. Due to this marriage, the complainant party was annoyed and became inimical towards us. They pressurized us to become Christian. On our refusal, they threatened us that they would kill us. One week before the registration of this case, Mst. Nighat Perveen deceased went to visit her sister Mst. Rifaat but did not return. The complainant party registered this false case against me and involved me due to their personal grudge. I am innocent and did not commit any offence." He did not like to produce defence or make any statement u/S. 340(2) Cr.P.C. claiming that the prosecution had not succeeded in proving their case against him. 18. It was on the basis of this evidence that the learned Addl. Sessions Judge Bahawalpur came to the conclusion that the prosecution had succeeded in proving on record, beyond any shadow of doubt that Abdul Razzaq accused had committed Qatl-i-Amd of Nighat Perveen, his wife. He, therefore, convicted him u/S. 302-B Criminal Law Amendment (Qisas and Diyat) Ordinance 1991 and sentenced him to death as Tazir having regard to the facts and circumstances of the case. 19. We have very carefully gone through the evidence on record and have also heard the learned counsel for the parties. We have, however, formed an opinion that the prosecution evidence does not inspire confidence and was not at all sufficient to record conviction. The learned Addl. Sessions Judge has no doubt addressed himself to all the possible objections raised by the defence to the prosecution evidence but has reasoning is not convincing enough for sending the accused to gallows. A careful and minute appraisal of the evidence has led us to hold that the prosecution has failed to establish otive, that both the so called eye witnesses of the occurrence cannot, by any stretch of imagination, be termed as natural witnesses and that the version of the complainant and her son-in-law does not fit in with the medical evidence. In fact, it appears that the FIR was recorded after preliminary investigation and the complainant and her son-in-law were prompted to become the eye witnesses of the occurrence by perhaps the Investigating Officer. 20. The S-I who recorded the statement of the complainant claims that he was present at Saddar Pulli in connection with his beat and he was already in possession of his investigation bag. He, therefore, recorded the statement of the complainant at the spot where she met him. Muhammad Iqbal PW2 was accompanying this S.I on patrol duty since morning and according to him, the S.I was not having his investigation bag with him at that time. Be that as it may, but one thing is very clear from what has been deposed by Syed Azhar Hussain Shah S.I (PW5) that the police station Baghdad-ul-Jadeed is on the eastern side of the place of occurrence just nearby. He intentionally avoided to say that the place of occurrence was visiable from the outer gate of P.S. Baghdad-ul-Jadeed. He also deposed that there was a link road on the southern side of the building where occurrence had taken place which led towards the P.S. Baghdad-ul-Jadeed. There was as such no occasion for the complainant to meet this S.I at Saddar Pulli. It has been observed in more than one judicial pronouncements that when an S.I meets a complainant accidently on his/her way to the police station, the ordinary presumption is that the FIE was drawn up at the spot It is interesting to note that the complainant had herself admitted this fact in so many words in her cross examination. According to her, the police recorded their statements including her own statement and the statements of her daughter Mst. Rifaat and son-in-law Palous at the spot The impression is, therefore, unavoidable that the FIR was recorded at the spot after deliberations and as held in Allah Bakhsh vs. The State (1969 P.Cr.L.J. 1204) the whole investigation from the recording of the FIR till its finalization becomes doubtful on this account. Thus the edifice built upon such an FIR and the testimony of the witnesses, who as per their own showing chanced upon the scene of occurrence as if the accused was waiting for them to arrive, falls to the ground and renders the entire prosecution case totally unbelievable, even for a person of very ordinary prudence. 21. The evidence regarding motive is not only weak but also unconvincing. According to both the complainant and her son-in-law, Mst. Nighat Perveen was a mid-wife and she wanted to serve as such but Abdul Razzaq accused was against it The complainant has claimed that they often quarreled with each other on this account and it was for this very reason that he (???) of her daughter. This piece of evidence, even if it be believed, is not at all sufficient to establish motive. Had there been any bad blood between the spouses, there was no occasion for the accused and his family to live with his mother-in-law. Again Mst. Nighat Perveen would not have allowed her son to accompany the accused to the Chobara where he lived. He obviously did not take the child in anger and after picking up any quarrel with his wife. Had it been so and had the prosecution claimed that it was in such circumstances that Nighat Perveen had gone to the temporary residence of her husband for bringing the child back, there could have been some possibility for the accused to have done away with the deceased in the manner claimed by the prosecution. It is settled law that it is not necessary for the prosecution to set up motive but where the prosecution has set up a motive and failed to establish it then it is the prosecution which must necessarily suffer on that account 22. The complainant (PW3) and her son-in-law (PW4) have not at all been able to make a cogent, consistent and convincing account of the occurrence. We doubt very much if they could happen to be available at the scene of occurrence at the crucial moment when the accused was allegedly sitting on the chest of his wife Nighat Perveen with a cloth around her neck and twisting the same by both of his hands with full force, and that too by hance. In fact, both of them have made an inconsistent account which has rendered their evidence of extremely doubtful import. In the first instance, Mst. Hamidan (PW3) claimed that Nighat Perveen did not turn up till evening and it was in the meantime that her daughter Rifaat and her son-inlaw Palous came to her house and she asked them to inquire about her daughter Nighat Perveen. She then perhaps forgot about "evening" and deposed that they accompanied her and they went to Malik Corporation at Asar Vaila. In her cross examination, she deposed that the place of occurrence is on the eastern side of Bahawalpur city while Bhatta No. 2, where she lives, is situate on its western side. She could not tell the exact distance in between the two, claiming that she was illiterate but added that it took them about 15 to 20 minutes to reach there. Palous Gill (PW4) also failed to give any good reasons for him and his wife to visit the house of his mother-in-law, when they found her worried but claimed that it was at about Ishaa prayer time that they got down from the rickshaw. In his cross examination, he deposed that the distance in between the place of occurrence and the house of his mother-in-law is about 8/9 kilometers. We doubt very much if this distance could be covered within 15 to 20 minutes on a rickshaw and if all what they have both deposed in this behalf is read and considered together, it cannot be believed that they were available at the scene of occurrence at Asar Vaila and that the statement of the complainant could be recorded at 5.50 p.m as per Rapat No. 18, as claimed by the prosecution. 23. both the PWs are unanimous in claiming that the moment they eached up-stairs they saw the accused committing the murder of the deceased. According to Puyasat Ah' (PW1), the stair-case is about 3 feet in width and there is no other passage to come down from the roof, except these stairs. The gallery where the occurrence took place might also be 2/3 feet in width as per the statement of the complainant It is highly unbelievable, rather un-imaginable that the accused could flee away from the same stairs and all the three of them i.e. the complainant, her daughter Mst. Rifaat only one step behind her and Palous Gill one or two steps behind her daughter, could not catch hold of the accused. It is al o most un-natural for Palous Gill to state that he did not try to apprehend the accused because as per his version, after seeing them he immediately ran away. Earlier he had claimed that he was at a distance of about 2/3 feet from the deceased when he saw the occurrence for the first time. The distance in between the place where the deceased was lying and where the stairs ended, as per his version, might be 2/3 feet. The stairs were on his back. Had it been so, there was no possibility at all for the accused to run away. Palous Gill is 34 years of age and there is no evidence to suggest that he is not an able bodied person. He, his wife and the complainant could easily over-power the accused. They failed to do so obviously because they had not seen the occurrence and they were not present at the time when Mst. Nighat Perveen was murdered. 24. It is also noteworthy that no mention whatsoever has been made of the child whom the accused had allegedly taken away to his Chobara, a day earlier. The investigation in this case was not carried out with care nor have both these witnesses and the 1.0 been cross examined on this point and no effort has been made to find out as to where was the child at the time of occurrence. We cannot help observing that the child would have been the most natural witness and the failure of the prosecution to make any mention of him in their entire evidence gives rise to a strong presumption that all the story is concocted one and might have been fabricated in order to provide a lausible justification for the visit of the complainant and her son-in-law to the Chobara and then become the natural witnesses of the occurrence. 25. There is another factor for disbelieving the version of the complainant. She is obviously not a truthful witness. She denied any knowledge regarding Abdul Tlazzaq and his mother having embraced Islam. She positively turned down the suggestion that her daughter Nighat Perveeu had also embraced Islam when she married Abdul Razzaq accused. She also turned down the suggestion that she and her Briadari (her own people) felt annoyed with Mst. Nighat Perveen because she had married the accused against their wishes and they wanted to kill her because she had left their religion and embraced Islam. Palous Gill, however, admitted in his cross xamination that the mother of Abdul Razzaq accused had embraced Islam and had contracted a second marriage, that Abdul Razzaq had also embraced slam and was presiding with his mother and that Nighat Perveen who was previously married, left Christianity, embraced Islam and contracted second marriage with Abdul Razzaq with her own sweet will. It follows that Mst Hamidan Bibi complainant wilfully with-held the true facts in order to avoid to give any impression that there might be some ring of truth in the claim of the defence that they were all annoyed on Nighat Perveen's marriage with Abdul Razzaq. 26. The evidence regarding the accused living at the Chobara, which is alleged to be the scene of occurrnece, is also lacking. Palous GUI first stated that the accused was living with his mother. Mst. Hamidan Bibi, on the other hand, claimed that he lived with her, alongwith his family. Palous, —v however, stated in his cross examination that he was residing with the complainant alongwith his wife and children and that he went to the Ckobara of Malik Corporation only 2/3 days prior to the occurrence. How then could he turn down the suggestion that he was not having his ordinary abode in the Chobara. It is really shocking to note that the learned Addl. Sessions Judge also proceeded on the premises that the accused was having his ordinary abode on the Chobara. He, therefore, observed that in this situation, the onus shifted upon the accused to explain how the occurrence took place on his residential Chobara. A reference to the statement of the accused, however, reveals that he turned down the suggestion that he was serving in Malik Corporation or that he had his ordinary abode in the upper storey (Chobara). It was incumbent on the I.O to collect and record independent evidence in this behalf which he failed to do. The observation of the learned trial Court that in this situation the onus shifted upon the v. accused to explain how the occurrence took place on his residential Chobara, therefore, was obviously the result of mis-reading and non-appreciation of the evidence. The prosecution has always to stand on its own legs and to establish the guilt of the accused beyond any doubt through cogent and convincing evidence and the failure of the accused to explain as to how the occurrence took place at the Chobara when he claimed that he did not live there, would not go against him. If the court believes the prosecution evidence as a whole and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case. The learned trial Court obviously failed to appreciate the evidence in a proper and legal way. 27. Similarly, the observation of the learned Addl. Sessions Judge that "no doubt PW3 and PW4 are the close relatives of the deceased Mst. Nighat Perveen but at the same time the accused is also their close relative", is totally uncalled for. Mst. Hamidan Mai is obviously the mother of the deceased and Palous Gill PW4 happens to be the husband of her real sister 'Mst. Rifaat. The accused who is said to have done away with Mst. Nighat Perveen, the only link between him and the PWs, cannot be termed as their close relative. In this situation, when both the star witnesses of the prosecution happen to be closely related to the deceased, exceptionally strong corroboration of their evidence was necessary which could almost be by itself sufficient to establish the guilt of the accused. It is a settled principle of law that where the witness is interested, his deposition-has to be scrutinized and tested carefully and cautiously and cannot be accepted unless the same is corroborated by such unimpeachable independent eividence which by itself ay be sufficient to record conviction. Wasiullah vs. Mirza All and others (PLD 1963 S.C. 25) and Ameer Bakhsh vs. The State (1990 P.Cr.L.J. 1765 (Karachi) can be referred to with advantage in this regard. 28. For all what has been discussed above, we come to the conclusion that the prosecution has very badly failed to establish the guilt of the accused beyond reasonable doubt. He is, therefore, entitled to acquittal. 29. Before parting with the judgment, we would like to observe, though it shall be mere academic yet significant to note, that in such cases where it is established that Qatl-i-Amd had been committed by the husband, of his wife leaving behind two sons who are alive, the court had no lawful uthority/jurisdiction/power hatsoever to convict the accused u/S. 302 PPG or impose penalty of death on him as has been held in Khalil-uz-Zaman vs. Supreme Appellate Court Lahore (PLD 1994 S.C. 885). We feel obliged to reproduce the following observations of the Hon"ble Supreme Court which are extremely relevant in such cases and provide guide lines:- "It was apparent on the face of record that Wall (daughter) of the deceased was direct descendant of the offender, Language of sections 306 and 308 P.P.C. was plain enough to show that Qatl-i-Amd committed by the accused was not liable to Qisas and Qatl-i-Amd not liable to Qisas was specifically punishable under section 308 P.P.C. only. So, the accused could be convicted under section 308 P.P.C. and not under section 302 P.P.C. to death as Qisas or Tazir. Had the Courts taken the notice of three sections of the Pakistan Penal Code i.e. section 306, section 307 and section 308, they would not have sentenced the accused to death under section 302 P.P.C. The error committed by the Courts in ^nvicting the accused under section 302 P.P.C. and . sentencing him to death, was so serious that had the accused eventually been hanged to death, it would have amounted to murder through judicial process. Pleas of good faith/ bona/Ide/ignornace of law/incompetency are not available in such like cases." 30. With these observations, we accept the appeal and acquit the appellant giving him the benefit of doubt He is in jail. He be set at liberty forthwith if not required in any other case. 31. Murder Reference No. 9 of 1993 is answered in the negative, the death sentence is not confirmed. (ZB) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1349 [Bahawalpur Bench] Present: muhammad islam bhatti, J. JAN MUHAMMAD and 6 others-Petitioners versus STATE-Respondent Criminal Misc. No. 30-B of 1996/BWP accepted on 7.4.1996. Further inquiry- —Murder-Offence of-Bail-Grant of~Prayer for-Both witnesses of extrajudicial confession remained joining investigation throughout but never uttered a word about any confession-There was no reason for them to remain silent for a period of more than two months—Eivdence recorded by prosecution is speculative and there are no reasonable grounds for believing that accused had committed a non-bailable offence falling within prohibitory clause-Held: There are sufficient grounds for further inquiry into guilt of petitioners and as such their case falls under Section 497(2) Cr.P.C.~Bail allowed. [Pp. 1353 & 1354] A & B M/s Mumtaz Hussain Bazmi, Sardar Ahmad Khan and Sardar Fazal Ahmad Khan Langah, Advocates for Petitioners. Malik Farrukh Mahmood, Advocate, for Complainant. Mr. M.A. Hameed, Advocate, for State. Date of hearing; 7.4.1996. order This order will dispose of an application moved by Jan Muhammad and 6 others for their post arrest bail in case FIR No. 171/95 registered at P.S Uch Sharif on 18.6.1995 at 9.00 p.m. u/S. 302 PPC on the statement of one Riaz Hussain, a Baloch r/o village Chanab Rasoolpur. 2. According to his version in the FIR, he purchased a diesel tank for a sum of Rs. 25,000/ from one Abdul Malik s/o Allah Ditta of his village and started the business of selling diesel in front of the house of Abdul Malik. He used to sleep near the tank at night On the preceding night, his child was ill. He, therefore, went to his house and sent his brother Fayyaz Hussain to keep guard over the tank. Fayyaz Hussain climbed over the roof of the shop and slept there. At about Namaz Vaila (in the morning) the complainant, as per his claim in the FIR, reached there and gave a call to his brother Fayyaz. There was, however, no response. He, therefore, went to the roof by stair-case from the house of Abdul Malik and saw three injuries on the neck of his brother Fayyaz Hussain who was lying dead entrenched in blood. He raised alarm which attracted Ghulam Khan s/o Mahmood Bakhsh and Massu Khan s/o Khuda Bakhsh alongwith other residents of the village coming down from the Kotha. On being asked they were told that the Oil tanker had not yet reached and the oil was over. They also inquired from them as to why they were present there on which they got annoyed whereafter both Abdul Ghafoor and Jahangir left on their tractor towards Nalka Adda from where they got the diesel from the petrol pump. Then they left for their house. It was later that they came to know that Fayyaz Hussain had been murdered while sleeping over the roof of the tank. 5. It may be of some interest to point out that the complainant started suspecting these persons after the statements of aforesaid PWs were recorded. Both the parties then remained arranging gatherings consisting of their sympathisers, who expressed their varying opinions about the alleged occurrence. An agreement was reduced into writing whereby the parties agreed to get together at 10.00 a.m. on 9.9.1995 where the accused had to establish their innocence. The accused party, however, did not turn up at the time and place whereafter fifteen persons from the side of the complainant opined that had the accused been innocent, they would have turned up to claim so and as such they were guilty. They insisted on the I.O to arrest them and challan them. 6. The accused named above also individually gave some reason or the other before the I.O for their being involved in this case falsely. It appears that Allah Wasaya s/o Ghulam Rasool and Gohram s/o Mahmood Bakhsh also remained joining the proceedings on behalf of the complainany party. Their names find mentioned in the Zimni recorded on 2.9.1995. It also appears that Jan Muhammad alias Janni s/o Bahadar Khan, accused, claimed that complainant Riaz Hussain was the Bkanja of Gohram Khan. One Manzoor Ahmad s/o Allah Wasaya had been murdered in the year 1992 in which Gohram Khan was also one of the accused. Jan Muhammad accused claimed that Riaz Hussain complainant had a grouse against him because he suspected that it was he who got his maternal uncle involved. Similarly Ghulam Farid s/o Ghulam Haider accused claimed that a son of Sadiq Khan was murdered in the year 1992. He and certain other persons were challaned in connection with that murder but subsequently they were acquitted. Ghulam Farid claimed that he and his son Manzoor Ahtnad had been involved in this case by Riaz on the asking of Sadiq Khan. Almost similar claims were made by Allah Wasaya s/o Ghulam Farid, j Allah Bachaya s/o Ghulam Haider, Manzoor Ahmad s/o Ghulam Haider and Abdul Malik s/o Allah Ditta. 7. It was on 12.11.1995 that the present seven accused were arrested by Muhammad Aziz SI/SHO P.S Channi Goth after having come to the conclusion that he had collected sufficient evidence for apprehending them. It was on 20.11.1995 that the statements of Allah Wasaya s/o Ahmad Bakhsh and Gohram Khan s/o Mahmood Bakhsh were recorded by this SHO u/S. 161 Cr.P.C. in which they claimed that all the aforesaid accused alongwith Ashiq Hussain had come to them and had stated that they had murdered Fayyaz Hussain in order to entangle the parties of Muhammad Ramzan Mahnwal and Ghulam Sadiq Khan in an un-ending litigation and fight but they did not succeed in it. According to both of them, this extrajudicial confession was made by all these accused after they had requested for some time to prove their innocence about 2\ months back. They stated before both of them that they had committed a great mistake by murdering Fayyaz Hussain and the complainant party was trying their best to get them arrested. They were all ready to pay compensation for this murder to the complainant. They also added that it was Abdul Malik who murdered Fayyaz Hussain with a dagger and all others had helped him in doing so and caught hold of the deceased. 8. The accused moved an application before the learned Sessions Judge for their bails. After taking into consideration the fact that during investigation Abdul Ghafoor etc. PWs had stated that they had seen the petitioners and their co-accused coming down from the roof of the place of occurrence on the said night and they also made extra-judicial confession before Allah Wasaya and Gohram PWs as to how they caused the murder and Abdul Malik petitioner inflicted injuries with dagger while the others over-powered the victim, he came to the conclusion that the petitioners were reasonably connected with the commission of the offence falling within the prohibitory clause and were, therefore, not entitled to the concession of bail. He accordingly dismissed their bail petition on 10.1.1996. 9. The petitioners have come to this Court claiming bail on the grounds inter alia (i) that there was no eye witness of the occurrence (ii) that they were not nominated in the FIR (iii) that it was about 2 months after the occurrence that the complainant colluded with certain relatives and friends o make them PWs and that the witnesses of extra-judicial confession are the real maternal uncle of the complainant and Mamoonzad of his mother respectively and (iv) that prima facie there are no reasonable grounds for believing that they are guilty of the offence with Which they are being charged and that there are sufficient grounds for further inquiry into their guilt 10. I have heard the learned counsel for, the parities at considerable length and have also given my anxious consideration to the facts and circumstances of the case after going through both the police file and judicial record and also the precedents cited at the bar. At the very outset, following the principle laid down in Nazar Muhammad vs. The State and another (PLD 1978 S.C. 236), it may be observed that every case of criminal nature proceeds on its own facts and circumstances and rule of universal application cannot be deduced form the decision of any particular case. It has also been held in this judgment that the courts on the basis of material placed before them such as FIR, statements recorded u/S. 161 Cr.P.C. are fully justified, even at the bail stage, to go into the question whether a case of constructive liability is made out This, however, is subject to the rule of caution laid down in Manzoor Ahmad vs. The State (PLD 1972 S.C. 81) in the following words:- ".... It is obviously not correct to depend on the ipso dixit of the police regarding the guilt or innocence of an accused person even in the matter of deciding the question of his bail. As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of the Courts which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusations made in the report to the police, the nature and the credentials of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence." In the instant case, the final challan has not yet been submitted as is evident from the Zimni dated 19.3.1996. Section 497(2) Cr.P.C. provides that if it appears to the court, at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused had committed a non-bailable offence and there are sufficient -1 grounds for further inquiiy into their guilt, the accused shall pending such inquiry be released on bail. 11. There is also no denying the facts that joint extra-judicial confession as in the present case is not admissible in evidence. It was so held in Sardar vs. The State (1970 P.Cr.L.J. 773) and Mamoon and 9 others vs. The State (1971 P.Cr.L.J. 197), both of which were bail matters. There is obviously no direct evidence in this case and the material collected by the Investigating Agency consists of:- (i) the evidence of Muhammad Iqbal s/o Rub Nawaz, Mukhtar Ahmad s/o Manzoor, Allah Bachaya s/o Muhammad Ramzan, Allah Nawaz s/o Ghulam Nabi, Abdul Ghafoor s/o Hazoor Bakhsh and Jahangir Hussain s/o Jam Rasool Bakhsh in the shape of their statements u/S. 161 Cr.P.C; and (ii) the joint extra-judicial confession allegedly made by the accused before Allah Wasaya s/o Ahmad Bakhsh and Gohram s/o Mahmood Bakhsh. 12. The learned counsel for the petitioners have urged with vehemence that this evidence is speculative, that both the witnesses of extrajudicial confession remained joining the investigation throughout from the side of the complainant but never uttered a word about any such confession having been made by the petitioners before their apprehension and their statements were recorded on 20.11.1995 i.e. eight days after the apprehension of the accused. They have also contended that there were no good reasons for Muhammad Iqbal, Mukhtar Ahmad, Allah Bachaya and Allah Nawaz to remain silent for a period of more than two months after the occurrence even if it is believed that they had gone to Karachi because they had come to know of the murder at Karachi and were expected to disclose what they had seen immediately thereafter. Again, as per their assertion, there were no good reasons for Abdul Ghafoor and Jahangir Hussain PWs to keep quiet and join the other four PWs on 28.8.1995 to make such statements. The learned counsel for the complainant has, on the other hand, urged that the evidence so far collected by the prosecution is sufficient to connect the petitioners with the commission of the offence with which they are being charged. 13. Without entering into the merits of the case or deeper appreciation of evidence so far collected by the prosecution and making only a tentative assessment, I have formed an opinion that the petitioners have a good case for bail. The evidence so far recorded by the prosecution is mainly speculative and there are no reasonable grounds for believing that the accused had committed a non-bailable offence falling within the prohibitory clause but there are sufficient grounds for further inquiry into their guilt and as such their case falls u/S. 497(2) Cr.P.C. They are, therefore, enlarged on bail subject to their furnishing bail bonds in the sum of Rs. 1,00,000/- (One lac) each with two sureties in the like amount each to the satisfaction of the A.C/Duty Magistrate Ahmad Pur East. (ZB) BaU allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1354 [Bahawalpur Bench] Present: muhammad islam bhatti, J. MUHAMMAD LATIF-Petitioner versus STATE-Respondent Criminal Misc. No. 40-B of 1996/BWP, accepted on 1.4.1996. Further inquiry- —Offence under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Bail~Grant of-Prayer for—No incriminating article has been recovered from petitioner-There is long standing enmity between parties-There was no mark of violence on body of victim-Held: Case of petitioner is of further inquiry into his guilt and he is entitled to concession of bail as of right-Bail allowed. [P. 1358] A & B PLD 1989 SC 585, 1995 P.Cr.L.JJ 310 and 1995 P.Cr.L.J. 1443 rel. Mr. Muhammad Asif Chohan, Advocate, for Petitioner. Mr. Mumtaz Hussain Bazmi, Advocate, for Complainant. Mr. Nasiruddin Ghauri, Advocate, for State. Date of hearing: 1.4.1996. order The petitioner seeks post arrest bail in case FIR No. 291/95 dated 19.9.1995 registered at P.S. Musafarkhana u/S. 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 on a written complaint of the prosecutrix Mst. Tasleem Bibi. 2. The prosecution case, briefly stated, is that on 19.9.1995 at about 5.30 p.m the complainant Mst. Tasleem Bibi, who is a married woman and has two sons and a daughter out of her wed-lock with Saeed Ahmad s/o Bashir Ahmad, was cutting gross from the field of one Haji Allah Bakhsh s/o Malik Allah Yar of the village when all of a sudden, the accused Muhammad Latif s/o Haji Muhammad Hassan appeared on the scene with a pistol and instantaneously therewith he kept his hand on her mouth and threatened her that if she made a noise, she would be done to death. He then forcibly untied the string of her Shalwar and started committing Zina-bil-Jabr with her. After he was free, he again extended the same threat that in case she made a noise, she would meet dire consequences. He then kft her. When he reached a small distance, the complainant raised alarm which attracted Ghulam Hussain s/o Qadir Bakhsh and Ghulam Farid s/o Mahmood Khan PWs who were cutting trees nearby. They tried to apprehend Muhammad Latif but the latter threatened them also that in case they went near him, he would shoot them. The complainant reached the Police Station accompanied by her Dewar Hazoor Ahmad for lodging this report. 2. This FIR was recorded at 7.30 p.m on the same day. She was medically examined on 20.9.1995 at 2.45 p.m. No marks of violence on any part of her body were seen. 3. The accused was arrested on 23.9.1995. He applied fw post bail on 3.10.1995. This application was, however, dismissed by the learned Addl. Sessions Judge Bahawalpur on 11.10.1995. 4. On 23.10.1995, the accused moved an application (Cr. Misc. No. 741-B-95) for bail, in this Court. On 18.12.1995, the learned counsel for the State contended that the trial had already commenced and as such the bail matter should not be taken up, in order to avoid any observations regarding merits of the case and thus influencing the trial. Both the learned counsel for the petitioner and that of the complainant were at variance in this regard and as such they were directed to submit a copy of the last interim ord«r «f the trial court and the case was directed to be relisted on 19.12.1995. On that date, the learned counsel for the complainant placed before the court photostat copies of the interim orders on the order-sheet starting from 15.11.1995 and in view of the settled practice of the Hon'ble Supreme Court not to grant bail when the case is either fixed for trial or the trial has already commenced, ] dismissed this application with a direction to the learned trial court to conclude the trial expeditiously, preferably within a period of two months, from the next date fixed in the case i.e. 9.1.1996. On 23.1.1996, Muhammad Latif moved this second application placing reliance on M. Ismail's case (PLD 1989 S.C. 585) and alleging that the petitioner's case falls within the purview of section 497(2) Cr.P.C. calling for further inquiry into his guilt because:- (i) there was no eye witness of the occurrence; (ii) there was no mark of violence on any part of the body of the prosecutrix; (iii) no incriminating article such as pistol had been recovered from the petitioner during the investigation although he remained on physical remand for a considerable time; and \iv) there was a long standing enmity between the family of the petitioner and that of the prosecutrix. It was also claimed that the petitioner who is a student had to re-appear in the subject of Chemistry in the forthcoming Annual Examination 1996 which was his last chance to qualify. 5. The complainant opposed this bail petition tooth and nail and maintained inter alia that the accused did not allow the trial to proceed on one pretext or the other. 6. I have heard counsel for the parties and have given my earnest consideration to the facts of the case after going through both the police file and the judicial record and also the precedents cited at the bar in the light of the relevant provisions of law. The petitioner has placed on record Annex: C, D, E, F, G, H, J and K which are copies of the plaints in civil suits and criminal complaints, a cursory glance through which leads one to draw an inference that the possibility of false involvement of the accused cannot altogether be ruled out of consideration. Muhammad Latif accused, his brothers Muhammad Hafeez and Muhammad Amin and their father Haji Muhammad Hassan had brought separate suits for the recovery of damages to the tune of Rs. 24,900/- each on 25.7.1994 against certain persons for malicious prosecution and Hazoor Ahmad, brother-in-law of the complainant who accompanied her to the police station, was arrayed as defendant No. 2 therein (Reference Annex: C, D, E, & F). It also appears that it was the claim of the accused Muhammad Latif right from the beginning even at the time when the was produced before the flaqa Magistrate for physical remand on 24.9.1995 that he had in fact been apprehended on the night between 19/20.9.1995 just in order to please the family of the prosecutrix with whom they had previous litigation and enmity. 7. It has then been contended that it was impossible for anyone to commit Zina-bil-Jabr with a grown up woman of 32 years of age without there being any evidence regarding scuffle and without leaving a slightest mark of violence on her entire body. The fact that the pistol with which the petitioner was allegedly armed at the time of the occurrence could not be recovered during the long period of police remand, has also been pressed into service for contending that the allegations of the complainant are false and as such there are no reasonable grounds to believe that the accused-petitioner had committed the offence with which he is being charged. 8. The learned counsel for the. complainant has, on the other hand, urged that the offence falls within the prohibitory clause and after the earlier application had . been dismissed, this second application cannot be entertained and is liable to be dismissed. 9. I propose to take up the points raised at the bar, for and against, one by one. It is not denied that no PW has so far been examined in this case. It is also correct that in view of what has been laid down in Mst. Nasreen vs, Fayyaz Khan (PLD 1991 S.C. 412), the sole testimony of the victim would be enough for conviction, in case it inspires confidence. It is also conceded with respect that bail should not ordinarily be granted when the case is either fixed for trial or the trial has already commenced as laid down in a number of cases including Gulzar Ahmad and others vs. The State (1995 P.Cr.L.J. 1494). But each case has to be considered on its peculiar circumstances and facts and no hard and fast rule can afford the guiding principle. The contention that this second application cannot be entertained in view of the principle laid down in The State vs. Zubair and 4 others (PLD 1986 S.C. 173) carries little force when considered from the angle that merits of the application for bail were not at all looked into. It was held in Ijaz All vs. The State (PLD 1981 Karachi 484) that fresh application on the ground not put before the Judge or not considered by him was not barred in law. In Gulzar Hassan Shah vs. Ghulam Murtaza and 4 others (PLD 1970 S.C. 335), it was held that an order passed u/S. 498 Cr.P.C. is not a judgment within the meaning of section 369 of the Code so as to operate as a bar against its alteration or review and that application for bail can be made from time to time on fresh material. It was also observed that in the context of observations made by the Supreme Court, this concession does not necessarily connote that in the absence of any fresh material under no circumstances a second application for bail or for the cancellation of bail already allowed can be entertained. It was so laid down in Amir-ud-Din vs. State (PLJ 1977 S.C. 466) that the "word" "Judgment" does not cover order granting or cancelling the bail. It is, therefore, abundantly clear that this second application is not barred particularly so when the first was not considered on merits. 10. The assertions in this bail matter particularly that no incriminating article has been recovered, that there is a long standing enmity between the parties and that there was no mark of violence on the body of the victim also lead me to conclude that there are no reasonable grounds prima facie for believing that the accused had committed the offence falling within prohibitory clause and that there are sufficient grounds for further inquiry into his guilt. When the Court finds that these two essential conditions are satisfied, the accused would become entitled as of right to bail and it cannot be with-held on the ground of practice; because the latter is relatable to exercise of discretion while former is relatable to the exercise of grant of right, as held in the reading judgment re; Muhammad Ismail vs. Muhammad Rafiq (PLD 1989 S.C. 585) and the commencement of the trial would not afford any ground to refuse bail as held in Wali Muhammad vs. The State (1995 P.Cr.L.J. 310) and also Mukhtar Ahmad vs. The State (1995 P.O.L.J. 1443), following the same principle. The fact that the complainant was not medically examined on the same date i.e. 19.9.1995 and had appeared before the Doctor who examined her, on the next day also casts doubt regarding admissibility of the report of the chemical examiner. For all these reasons I hold that the case of the petitioner is of further inquiiy into his guilt and he is entitled to the concession of bail as of right. He is accordingly enlarged on bail subject to his furnishing a bail bond in the sum of Rs. 1,00,000/- (one lac) with two sureties in the like amount to the satisfaction of the learned trial court. 11. Needless to state that the observations made herein are tentative in nature and shall not have any adverse effect on the decision of the case on merits. (ZB) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1358 [Bahawalpur Bench] Present: muhammad islam bhatti, J. MUHAMMAD ANWAR-Petitioner versus STATE-Respondent Criminal Misc. No. 12-B of 1996/BWP, accepted on 19.3.1996. Bail- —Offence of sodomy under Section 377 PPC--Bail--Grant of--Prayer for~ There is absolutely no plausible explanation about 3 days' delay in lodging F.I.R.~In Punchayat, version of complainant was that three other persons besides petitioner, had committed un-natural offence with him but no such claim is made in F.I.R.--There were no signs of lying down or scuffle at place of occurrence-After 24 hours, it is difficult to trace semen within bowl-Held: Petitioner has a good case for bail—Bail allowed. [P. 1360 & 1361] A & B NLR 1995 SC 371 and NLR 1989 SC 810 rel. Syed Muhammad Tariq Shah, Advocate, for Petitioner. Mr. Mohsin Raza Joya, Advocate, for State. Date of hearing: 19.3.1996. order This is an application for bail in case FIR No. 147/95 registered at Police Station Pacca Laar on 11.7.1995 at 9.00 a.m u/S. 377 PPG. This FIR was lodged by Hafiz Muhammad Bakhsh s/o Khalil Ahmad caste Chandia r/o village Kotla Dolat situated at a distance of 3 kilometers from the police station towards its north. The occurrence had taken place on 8.7.1995 at about 8.30 p.m. According to the complainant-victim, he was coming back from Basti Ladhani on a bicycle after seeing his sister and when he was passing by the Khandars, the present petitioner Muhammad Anwar s/o Ghulam Nabi who was armed with a pistol and another person armed with a hatchet whose name the complainant did not know, stopped him and asked him to lie down otherwise he would be done to death with pistol and hatchet and buried in the Khandar. It was then that Muhammad Anwar forcibly subjected him to sodomy while his co-accused armed with hatchet kept guard over him. He raised alarm out of pain whereupon Muhammad Anwar tied his mouth with a cloth. All of a sudden, Peer Bakhsh s/o Haji Bakhsh, a maternal uncle of the victim, and Karim Bakhsh s/o Elahi Bakhsh, his Chacha Zaad, who were following him also reached there from Basti Ladhani on a bicycle and saw the occurrence. They tried to apprehend the accused but they succeeded in slipping away. The complainant was then brought to the village by Peer Bakhsh and Karim Bakhsh. He narrated the occurrence to them. Elahi Bakhsh, the uncle of the victim with whom he lived, was not present in his house. On the next day, Anwar etc. remained requesting them not to report the matter to the police. On the return of Elahi Bakhsh (on 11.7.1995), the victim accompanied him to the police station for lodging the report. 2. The bail applications moved by the petitioner were dismissed by the A.C. Liaqatpur on 15.10.1995 and by the Addl. Sessions Judge Liaqatpur on 30.11.1995 respectively. He has, therefore, come to this Court. 3. I have today heard the learned counsel for the petitioner and the learned State counsel and have also carefully gone through the police record. The learned counsel for the petitioner has contended before me that three days delay in lodging the FIR has not at all been satisfactorily explained and that the medico-legal examination of the victim Hafiz Muhammad Bakhsh carried out on 11.7.1995 can also be of no avail to him because the Medical Officer has not given a definite finding with regard to penetration etc. and anal tears could be the result of the examination through protoscopy. According to him, the report of the chemical examiner that the anal swabs were stained with semen shall also have to be ruled out of consideration • ecause the possibility of finding semen inside the anus was very remote and the semen could not remain in the anus after 24 hours as the same would be washed away after the complainant had eased himself, as has been held in Muhammad Akram and others vs. The State (N.L.R. 1995 SD 371). 4. The learned State counsel has, on the other hand, maintained that the petitioner was nominated in the FIR and the offence with which he is being charged falls within the prohibitory clause and as such he has no good case for bail. 5. A glance through the police file puts me at guard and constrains me to observe that the prosecution version with regard to the occurrence has to be viewed with caution. There is absolutely no plausible explanation with regard to three days delay in lodging the FIR. According to the version of the complainant party put-forth before the respectables and elders of the village in a Panchayat, it was not only Muhammad Anwar, the present petitioner, but also Iqbal, Siraj and Abdul Rehman who had committed un-natural offence with the victim. No such claim was made by the victim in the First Information Report. The police inspected the site and there were no signs of lying down or scuffle on the ground. Above all, in the opinion of Alfred Swaine Ta lor, MD, FRS expressed by him at page 96 of his book "Taylor's Principles and Practice of Medical Jurisprudence" Thirteenth Edition (and reproduced in the judgment cited above i.e. (NLR 1995 SD 371) "Semen traces within the bowel are difficult to identify if more than 24 hours have passed since the alleged act, and also lost in the majority of cases if there has been a bowel action between the time of the alleged incident and the medical examination. Wiping or washing of the anal verge will also tend to destroy and anal verge contamination by semen or lubricant." 6. In a similar case where there was a delay of two days in reporting the matter to the police and no marks of violence were found on the person of the victim re: NiamaiAli alias Deena vs. The State reported as NLR 1989 SD 810, the accused was admitted to bail by bis lordship Mr. Justice Jjaz Nisar. 7. This being the position, the petitioner has obviously a good case for bail. He is, therefore, accordingly enlarged on bail subject to his . furnishing a bail bond in the sum of Rs. 1,00,000/- with two sureties in the like amount to the satisfaction of the A.C/Duty Magistrate Liaquatpur. It may, however, be mentioned here that the observations made by me in this order are tentative and they will not, in any manner, affect the decision of the case on merits. (ZB) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1361 [ Bahawalpur Bench] Present: muhammad islam bhatti, J. SHABBIR and another-Petitioners versus STATE-Respondent Criminal Misc. No. 44-B of 1996/BWP, accepted on 1.4.1996. Bail- —Offence under Section 324 PPC--Bail--Prayer for~Keeping in view nature and seats of injuries, which are all simple and not on vital parts, it can safely be inferred that prima facie there are no reasonable grounds for believing that accused had committed offence with which they are being charged—Petitioners should not be kept behind bars indefinitely as punishment before trial--Their case is definitely of further inquiry into their guilt-Even otherwise, petitioners have been detained for a continuous period exceeding one year and conclusion of trial is not yet in sight-Bail allowed. [Pp. 1363] A, B, C & D Mr. M. Abdul Manan, Advocate, for Petitioners. Mr. M. Sadiq Channer, Advocate, for Complainant. Mr. M.A Harmed, Advocate, for StAe. Date of hearing: 1.4.1996. order This is an application for post arrest bail moved by Shabbir and Niazi sons of Baig residents of Chak No. 200/P Tehsil Sadiqabad in case FIR No. 154/94 registered at P.S Kot Sabzal on 18.9.1994 at 9.30 p.m u/S. 324/34 PPC on the statement of one Muhammad Ramzan s/o Ghulam All of their Chak. 2. The complainant claimed in his statement that he was cultivating the land belonging to one Ghulam Muhammad. At about 5.00 p.m on the day of occurrence he was coming back from the house of one Khair Muhammad. When he was at a distance of about 2 acres from his own house, he was given a call by Shabbir accused from behind and was asked to stop. The complainant turned back and saw that Shabbir was armed with & gun. He, therefore, did not stop. On this the accused fired straight at him hitting him in his leg and shoulder. On the alarm raised by him and on hearing the report of firing, Jewan, who happened to be an uncle of the complainant, and Manzoor Ahmad s/o Jewan ran towards him after seeing the occurrence. Meanwhile Niazi s/o Baig armed with pistol, Wazir Ahmad s/o Baig and Baig s/o Shall also reached there. Baig then raised & lalkara to teach the complainant a lesson for helping Ghulam Muhammad aforesaid. Niazi also fired with his pistol hitting Jewan at his ankle. Shabbir Ahmad then fired a second shot with his gun hitting Manzoor Ahmad at his cheek, right chest and lower leg. The reports of firing attracted some other persons named Sobhara and Allah Dad alongwith other residents of the village. The motive behind the occurrence, as stated by the complainant was that 5/6 days earlier, he accompanied Jafar Hussain s/o Ghulam Muhammad and Manzoor Ahmad aforesaid, in putting some earth in the Ihata of Ghulam Muhammad with a tractor which Ihata was adjacent to the house of Baig on which there was exchange of hot words. 3. An application moved by these petitioners for post arrest bail purely on the statutory ground under proviso 3 to section 497 Cr.P.C. was dismissed by the learned Sessions Judge Rahimyar Khan on 17.10.1995 after observing that as many as seven adjournments could be attributed to the accused for delay in conclusion of trial inspite of the fact that charge was framed on 18.12.1994 and 2.1.1995 was the first date for evidence. He, therefore, refused to invoke the provisions of statutory ground. 4. The petitioners have now claimed bails on the grounds inter alia (i) that they have been falsely implicated (ii) that they are behind the bars for more than one year during which period not a single PW has so far been examined (iii) that none of the injuries attributed to them is on vital part and as such their case does not fall within the purview of section 324 PPC and is of further inquiry into their guilt and (iv) that no empties or blood stained earth was recovered from the place of occurrence. 5. On 18.3.1996, the learned counsel for the petitioners urged before the court that petitioners were entitled to bail as of right on statutory ground. The learned counsel for the complainant, however, opposed him placing reliance on the order dated 17.10.1995 passed by the learned Sessions Judge and asserting that it was mainly the ccused who were responsible for delay in the conclusion of trial. The learned counsel for the petitioners was, therefore, directed to place before the court for perusal certified copies of the interim orders on the order-sheet. On 25.3.1996, besides submitting the certified copies of the order sheet, the learned counsel for the petitioners also claimed that the mother of the petitioners had died on 22.3.1996 and as such they were entitled to the concession of bail on compassionate ground also. The factum of the death of Mst. Pathani Bibi w/o Baig has been verified by the police. She happened to be the real mother of Niaz Hussain alias Niazi accused and step-mother of Shabbir. 6. I have heard both the parties and have also gone through the record carefully. If find considerable force in the contention of the learned counsel for the petitioners that the intention of the accused can only be determined at the trial and keeping in view the nature and seats of injuries which are all simple and not on vital parts, it can safely be inferred that prima facie, there are no reasonable grounds for believing that the accused had committed the offence with which they are being charged and that there are sufficient grounds for further inquiiy into their guilt. 7. Without entering into the merits of the case but keeping in view the fact that the petitioners should not be kept behind the bars indefinitely as a punishment before trial, only because there is an allegation of attempt to commit Qatl-i-Amd which offence is covered u/S. 324 PPC. Their case is definitely of further inquiry into their guilt. 8. Even otherwise, they are entitled to the concession of bail being accused of an offence not punishable with death and having been detained for a continuous period exceeding one year when the conclusion of the trial is not yet in sight. They were arrested on 28.9.1994. I have carefully gone through the order sheets, photo copies of which have been placed on record, and I can safely say that even seen mathematically, the prosecution was responsible for more adjournments than were the accused. For all these reasons, I find that the petitioners have a good case for bail. They are accordingly enlarged on bails subject to their furnishing bail bonds in the sum of Rs. 50,000/- each with one surety in the like amount each to the satisfaction of learned trial Court. (ZB) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1364 DB Present: ali muhammad baloch and abdul latif qureshi, JJ. MUSHTAQ ALI KALHORO and two others-Appellants. versus STATE-Respondent Criminal Appeals Nos. 307/1992 and 24/1993, accepted on 9.1.1996. (i) Identification- —Witness when put to identification test should point out and attribute role of each accused while committing crime. [P. 1370] G 1995 SCMR 127 rel. (ii) Identification- —Momentary glimpse-Witness, giving sketchy description of culprits but not mentioning nature of clothes worn, features of face or other distinguishing features of culprits which could show that he must have actually identified culprits on account of those features, cannot be treated s truthful and natural statement as far as identification of culprits is concerned. [Pp. 1368 & 1369] C & D (iii) Pakistan Penal Code, 1860 (Act XLV of I860)- —S. 302/34-Appreciation of evidence-Mere fact that witnesses has no animus to falsely implicate accused so their evidence should be relied, cannot be accepted-It has to be seen that evidence of witness is "inherently probable" and whether it is consistent with circumstances of case or not. [P. 1370] H 1979 SCMR 214 ref. (iv) Suppression of Terrorist Activities (Special Courts) Act 1975- —S. 7 read with S.302/34 of Pakistan Penal Code, 1860- Sentence/conviction-Challenge to--Appreciation of evidence-Informant a constable, claiming eye-witness, mentioning about two culprits speeding away in car by giving their sketchy description but did not mention about two police officials as witnesses who claimed to be eye­ witness and deposed so in court-Informant at trial improved his statement by adding two more culprits (including the three present appellants), all three witnesses identifying 4 culprits in identification parade held after 6 months-Holding of identification parade does not inspire confidence and was absolutely of no effect-No other incriminating evidence available against appellants-In circumstances evidence of informant and other two police officials cannot be treated as truthful— Sentence/conviction is set-aside-Murder reference is rejected-Appeal accepted. [Pp. 1367,1369,1370 & 1371] A, B, E, F, I, Mr. A. Q. Halepote, Advocate for Musthaq Ali Appellant. Mr. Azizullah Sheikh, Advocate for Asghar Ali Appellant. Mr. Hussain Shah Rashidi, Advocate for Hatim Ali Appellant. Mr. Muhammad Sarwar Khan, A.A.G. Dates of hearing : 18.9.1995, 19.9.1995, 27.9.1995, 28.9.1995 2.10.1995 and 11.10.1995 judgment Ali Muhammad Baloch, J.--The appellants Mushtaque Ali Kalhoro Asghar Ali Shah and Hatim Ali Shaikh were tried by Special Court No. Ill (Suppression of Terrorists Activities) Karachi, in the case in which A.S.I. Niaz Ahmed of C.I.A. Centre-II Karachi was shot dead. The appellants were found guilty and were convicted and sentenced as under :-- Appellants Asghar Ali Shah and Mushtaque Ali Kalhoro sentenced to death, appellant Hatim Ali Shaikh sentenced to imprisonment for life. Alongwith the above named appellants, co-accused Abdul Sattar Morio, Inayatullah Narejo, Muhammad Ali Khokhar and Rasheed Bughti were also tried for the same offence but the trial Court acquitted them. The appellants Mushtaque Ali, Asghar Ali Shah and Hatim Ali Shaikh have challenged their conviction by two separate appeals. Since the appellants were tried jointly and convicted by the common judgment, these appeals are being disposed of by this single judgment. In nutshell, the facts of the case are that deceased A.S.I. Niaz Ahmed who was serving at C.I.A. Centre-II, Sir Syed Road Karachi, was shot dead on 11.11.1990 when he was about to come out of his car after parking the same on the read near the gate of the C.I.A. Centre. This C.I.A. Centre has an iron gate, which remains closed. It has a hole for peeping through, which is about 3" in diameter and a Police-man remains on duty inside the gate, able to peep through this hole and open the gate if the need be, for security reasons. On 11.11.1990 PW. Ahmed Hussain, Constable at this C.I.A. Centre was on duty behind the gate, when he was attracted by firearm reports coming from the road infront of the C.I.A. Centre. On peeing through the hole he saw two persons armed with Kalashnikovs in the process of sitting in a car, after making the firing, and were trying to get away. Ahmed Hussain fired four rounds from his China rifle which he was carrying at that time, but the culprits sped away in the car. Ahmed Hussain also noted another car in which also two persons sped away. Ahmed Hussain as well as other staff present at C.I.A. Centre rushed out side and found that A.S.I. Niaz Ahmed had been killed in a beige colour car which was standing out side the C.I.A. Centre on the road. The incident had taken place within the jurisdiction of Ferozeabad Police Station and the C.I.A. Centre-II had no facility to register the case that time. After about 10-15 minutes Ferozeabad police reached at the scene of incident and Raja Muhammad Ghous the SHO, took the charge of the investigation. Statement of PW. Ahmed Hussain was recorded by Muhammad Ghous on the spot U/S. 154 Cr. P.C. which was later on transcribed in the book as the F.I.R. at P.S. Ferozabad. In this F.I.R. PW. Ahmed Hussain had stated that on that day at about 3-30 p.m. when he was performing his duty at the gate and was watching outside from the hole in the gate, he heard fire shots. Then he found two persons outside, of whom one was carrying a Kalashnikov in his hand and they were in the process of sitting in a car, quickly, after firing. He stated further in his statement before SHO that he will be able to identify them on seeing them again. In respect of the culprits he gave their features to be of normal height, and aged about 25- 30 years. He also stated that he had fired at the culprits 4 rounds from his Chinese rifle, but the culprits sped away in their car. When Ahmed Hussain alongwith other officers of C.I.A. Centre came out of the gate they found the car of A.S.I. Niaz Ahmed parked on the road, having bullets holes in its wind screen and back screen. Dead body of Niaz Ahmed was lying inside the car in a pool of blood. The SHO Ferozabad and recorded statements of two more witnesses who claimed to have also witnessed the incident. They were PWs. Muhammad Azad A.S.I. Police and Khalid Pervez Head-constable police, both posted in the same C.I.A. Center at the time of the incident. These two witnesses narrating the story told the SHO that on that day they were on duty at the C.I.A. Centre but had gone to take tea in a canteen outside the Centre and were on their way back to the CIA Centre. When they were at some distance from the CIA Centre, they saw two cars coming in speed, and stopped infront of CIA gate. Three persons from one car and two from the other, came out. They also noticed that A.S.I. Niaz Ahmed's car was already parked there. The 5 persons riding in the two cars which came in speed and estopped infront of the CIA gate were armed with Kalashnikovs and Pistols. All of them fired at Niaz Ahmed, when they came parallel to his car and then sped away in their cars. They also stated that the police-man on duty at the gate of the CIA Centre had also fired towards the culprits, when they were in the process of escaping after making firing. Both these witnesses noticed that Niaz Ahmed had died due to firearm injuries which hit his head and other parts of the body. The SHO Ferozabad who was there, had recorded their statements. The police during investigation recovered empties of Kalashnikovs and Pistols from the wardat. Appellants Asghar Ali Shah and Hatim Shaikh were arrested on 1.4.1991 while accused Mushtaque Ali Kalhoro was arrested on 25.5.1991. These accused were infact formally shown arrested in this case on the above dates while they were already in custody of Gulberg police in some other cases. After the investigation, the police found the following pieces of evidence against the appellants on the basis of which they were produced before the Court for trial:- 1. Appellants Asghar Ali Shah and Hatim Sheikh had pointed out the place ofwardat on 7.4.1991 to the police. 2. The appellants Mushtaque Ali Kalhoro, Hatim Shaikh, Asghar Ali Shah were produced before Mr. Rasool Bux Abro A.C.M. Karachi East, for identification test on 1.6.1991 and they were picked out by PWs. Ahmed Hussain, Azad and Khalid Pervez in presence of the Magistrate, to be the culprits, whom they had seen firing at Niaz Ahmed's car on the date of incident. To prove their case, the prosecution examined the following witnesses who claimed to be the eye-witnesses of the incident : (1) Ahmed Hussain, (2) Muhammad Azad and (3) Khalid Pervez. Ahmed Hussain was the constable posted inside the gate of the CIA Centre who claimed to have seen the incident on hearing the reports of gun fires by peeping through the hole, in the gate and thereafter he also claimed to have fired towards the culprits from his Chinese rifle. Ahmed Hussain was examined after 10-15 minutes of the incident by the SHO of P.S. Ferozabad, who while on patrolling had learnt about the incident and had reached the wardat. In his statement U/S. 154 Cr. P.C. before the SHO Ferozabad, PW. Ahmed Hussain spoke of having noticed only two culprits and their car, and that these two culprits had fired at the deceased Niaz Ahmed. PW. Ahmed Hussain did not state that he noticed the second car and the culprits riding in that car, in his statement U/S. 154 Cr. P.C. but in his deposition before the Court he improved his statement by adding that he also saw another car with two more culprits. However Ahmed Hussain in his 154 Cr. P.C. statement gave description of only two culprits that also in the following terms: "They were of normal heights and aged around 25-30 years". Beyond this no other particular about the description of the culprits was given by PW. Ahmed Hussain in his FIR. Thereafter nearly after a period of 6 months PW. Ahmed Hussain was put to an identification test wherein he picked out appellants Asghar Ali Shah, Mushtaque Ali Kalhoro, Hatim Shaikh and Inayatullah Narejo. Although in the FIR PW. Ahmed Hussain had given the sketchy description in respect of only two culprits, whom he had seen through the 3" dia-meters hole in the iron gate on peeping from it, after a period of 6 months, he picked out in the identification parade 4 culprits, which include the three present appellants. In the similar circumstances PWs. Muhammad Azad and Khalid Pervez the only other witnesses who claimed to have seen the incident when they were returning after having tea in a nearby canteen also picked out in the same identification test the present appellants. In addition, PWs. Khalid-Pervez and Muhammad Azad also picked out Inayatullah-Narejo to be the 4th culprit. Accused Tnayatullah Narejo has been acquitted by the trial Court. Apart from the evidence of these three witnesses Ahmed Hussain, Muhammad Azad and Khalid Pervez, the only other piece of evidence against the present appellants could be said that of pointing out the place of incident to the police when arrested. We do not consider this second piece of evidence to be incriminating for the reason that the place of incident which was known as the front of the gate of the CIA Centre on the road was not such that was un-known to other persons and that it was discovered for the first time on the pointation of the appellants. Besides, the appellants who were already in custody since long are said to have pointed out this place to the police in presence of their own police witnesses. We, therefore, do not consider this piece of evidence to be of any consequence. The only piece of evidence implicating the present appellants in the commission of the murder of Niaz Ahmed could be the evidence of the three witnesses Ahmed Hussain, Muhammad Azad and Khalid Pervez in conjunction with the evidence of Mr. Rasool Bux Abro in whose presence the identification parade took place. Before evaluating the evidentiary value of the memo of the identification parade produced by Mr. Rasool Bux Abro, A.C.M. and his own evidence in support thereof, it is necessary to first arrive at a conclusion that PWs. Ahmed Hussain, Muhammad Azad and Khalid Pervez were present at the time of incident and had enough opportunity to see the culprits, and that they were in a position to pick out the appellants in an identification parade held after a period of about 6 months. Secondly it is also to be seen whether these witnesses had no opportunity to see the appellants in police custody prior to the holding the identification parade and that conviction of capital nature could safely be based on the evidence of these three witnesses. The evidence of these three witnesses will have to be judged keeping in view the principles accepted by the superior Courts for safe dispensation of justice. Evidence of PW. Ahmed Hussain in respect of the identification of the appellants in the identification parade has to be judged from the circumstances under w r hich he had witnessed the incident. This witness was standing behind a closed iron gate with a hole of about 3" dia-meter. He is attracted on the gun fires and thereafter he peeped through that hole. According to his statement in the FIR he could see only two culprits who were in the process of sitting in their car in which they sped away within his sight. Thereafter he had also fired from his rifle without any success. This shows that time when this witness has seen the incident must not be free of excitement. Besides, this witness had only a momentary glimpse of the assailants, that is why he has given their sketchy descriptions i.e. they were of normal heights and aged about 24 to 30 years. He did not give the nature of the clothes they were wearing and the features of their face or other distinguishing features which could show that he must have actually identified the culprits on account of those features. Another circumstance which complete us not to rely on the evidence of PW. Ahmed Hussain is that in his FIR he stated that he saw only two culprit whereas later on he has stated about sighting of the second car also but the features of the persons riding in the second car were not giving by him. No only this, but when his statement was recorded by SHO Raja Mohammad Ghous of P.S. Ferozabad at the place of wardat, PWs. Muhammad Azad and Khalid Pervez who are also serving in the same CIA Centre and claimed to be eye-witnesses of the incident and also claimed that they were present when the SHO had reached the wardat and recorded the evidence of Ahmed Hussain, must have been noticed by Ahmed Hussain. But Ahmed Hussain did not show the presence of PWs. Muhammad Azad and Khalid Pervez in this FIR. Therefore Ahmed t» Hussain's version of the incident, under these circumstances, cannot be treated as truthful and natural statement, as far as identification of the culprits is concerned. Coming to the identification parade, in which Ahmed Hussain has picked out the appellants, it is admitted position that appellants Asghar Ali Shah and Hatim Shaikh were arrested on 1.4.1991 while they were put to identification test on 1.6.1991 by Ferozabad Police. During this long period of two months when the appellants were in custody of the police of Ferozabad and PW. Ahmed Hussain was serving at the CIA Centre, possibility of PW. Ahmed Hussain having been shown the arrested appellants by the police could not be ruled out. Accused Mushtaque Kalhoro was also in custody of police since 25.5.1991. Besides, evidence of Mr. Rasool Bux Abro, A.C.M. in respect of holding of the identification parade itself does not inspire confidence to be so fool-proof that conviction in a capital offence could be based on the same. PW. Rasool Bux has stated that he was given a letter for holding identification parade of the accused Asghar Ali Shah, Mushtaque Kalhoro, Hatim Shaikh and Inayatullah Narejo in this crime on 1.6.1991 at 3-30 p.m. In the same breath he stated that he fixed the parade to take place in the office of S.D.M. Ferozabad at 3-30 p.m. on the same day. He admitted that the office of S.D.M. Ferozabad in which the identification parade took place was at a distance of 3-4 miles from his office. He also stated that the SHO made the dummies to stand in a line while he was sitting. He also admitted that he did not know who had arranged the dummies to stand in the line whether it was the police or his personal staff. He also stated that when he went to the Court of S.D.M. Ferozabad, venue for holding of the identification parade, he found the accused already sitting outside the Court Room. He also did not care to check the identification cards of the witnesses who were put to identification test although he did not known the witnesses earlier. The Magistrate also admitted in the Court question put to him that the witnesses who had to identify the accused in the parade had first come to his Court and told the Magistrate that they had come for the purpose of identification of the accused. The magistrate admitted that thereafter he called the accused to his Court. It must be thereafter, in presence of the witnesses that the accused must have been called before the magistrate and mixed up with the dummies who were already made to stand in the line before him. Therefore, the witnesses who themselves belong to police, could easily see who are being mixed with the dummies in their presence and therefore, this identification parade was nothing more than farce. Therefore, this identification parade was absolutely of no effect. Nex comes the evidence of Muhammad Azad and Khalid Pervez for discussion. These witnesses who belong to CIA Centre have not given the distinguishing features of the culprits when they were seen by them causing the death of A.S.I. Niaz Ahmed. Their names do not appear in the FIR to be the witnesses of the incident although the FIR was recorded by the S.H.O. Ferozabad at the spot where they were also standing about 10-15 minutes after the incident. Besides, at the best they could also have had a momentary glimpse of the assailant and they have picked out the accused in the identification parade after a period of 6 months. We have already discarded the identification parade to be having any evidentiary value in this case. Under these circumstances, it is hard to rely on the evidence of PWs. Muhammad Azad and Khalid Pervez also. It is also important to note that tne witnesses when put to identification test should have pointed out and attributed the role of each accused, while committing the crime, as held in the case of Mehmood Ahmed and 3 others vs. The State and another, reported in (1995 S.C.M.R. P/127). These witnesses in their statements before the trial Court have not spoken about the different roles of each accused in commission of the crime nor they distinguished between the accused with regard to the arms carried by them. These witnesses have merely picked out the accused in the identification parade without attributing to them their role in the crime or any distinguishing feature between them. Therefore, the principle laid down in the above cited case is attracted and we have no hesitation in agreeing with the learned counsel for the appellants that the identification parade held in this case cannot be relied upon for conviction in this case. Learned counsel appearing for the State while supporting the judgment of the trial Judge has contended that since no hostility or enmity has been suggested against the accused to falsely implicate the present appellants in this case by the police their evidence should be accepted. It has been further argued that since the witnesses were posted at CIA Centre where the incident took place they are natural witnesses. We are, unable to agree with the contention of the learned counsel for the State, because tests prescribed by superior Courts for accepting or discarding the evidence when applied to this case we find that evidence of these witnesses cannot be relied upon for the reasons which have been enumerated in the above discussion. Mere fact that witnesses had no animus to falsely implicate the present appellants, therefore, their evidence should be relied upon, cannot be accepted. The rule laid down in the case of Muhammad Sadiq vs. Muhammad Sarwar (1979 S.C.M.R. P/214) shows that irrespective of the fact that the witness had no animosity to falsely implicate an accused, it has to be seen that the evidence of the witness is "inherently probable" and whether it is consistent with the circumstances of the case or not. The three eye-witnesses in this case may have been at the place of incident in this case, but it is doubtful if they had enough opportunity to see the culprits and their features, so that they could pick them out in the identification parade held after six months of the incident. We have already held the identification parade itself of no evidentiary value in this case. There is no other incriminating evidence against the appellants. Therefore, we, cannot sustain the judgment and sentence passed by the trial Court in this case. We allow this appeal and set aside the judgment and the sentence passed against the appellants. The reference for confirmation of the death sentence is also rejected. The appellants, therefore, should be released forthwith if not required in any other case. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1371 [Circuit Bench Hyderabad] Present: GHOUS MUHAMMAD, J. AARUB KHAN-Appellant versus HARIS M.B. AHMAD and 3 others-Respondents Criminal Acquittal Appeal No. 76 of 1994, dismissed on 30.11.1995 (i) Criminal Procedure Code, 1898, (Act V of 1898)-- —S. 417(2)--Appeal against acquittal-Preliminary objection-That Respondent No. 1, being attorney of Respondents No. 2 and 3 (his mother and sister) who entered into sale agreement with appellant on their behalf, has not filed power of attorney, so he cannot cause appearance and cannot be allowed to defened-Held : Power of attorney is not in dispute in this appeal-Contention of appellant is misconceived and against natural justice because appellant has impleaded Respondent No. 1 in memo of appeal, all allegations are directed against him, even in complaint before Magistrate he was involved-It is general principle of law that all parties to pleadings has right of defence and audience hence objection is devoid of any legal force arid deserves rejection. [P. 1375] A PLD 1981 Lah 302 rcf. (ii) Criminal Procedure Code, 1898, (Act V of 1898)-- —S. 417(2)~Preliminary objection-No fair opportunity was given to appellant or his counsel to contest application u/s 249-A Cr. P.C.- Besides, lawyer at the original stage was «oi competent enough and appellant being illiterate could not decipher between competent and incompetent lawyer-Held: Record of case shows, repeatedly dates were sought by appellant, presence of appellant and his lawyer at the time of hearing of arguments, and they wore given full opportunity to advance submissions and arguments, No ex-parte order or ruling present on record-Allegations and averments made in respect of competence of an advocate at his back are wholly uncalled for-No breach of violation of principles of justice on the face of record neither appellant condemned unheard-Contention raised by appellant amounts to abuse of process of court. [P. 1376] B, C & D PLD 1969 AJ&K 65 ref. (in) Criminal Procedure Code, 1898, (Act V of 1898)- —S. 249-A-Contention, that Magistrate while exercising power under Section 249-A Cr.P.C. materially erred because only two out of six witnesses were examined by Magistrate during proceedings under Section 202 Cr. P.C., hence proceedings before Magistrate stood vitiated- Held: Application Under Section 249-A Cr. P.C. cau be filed at any stage of proceedings and it is not necessary and there is no requirement that such application has to be filed after evidence of all witnesses is recorded- -Only requirements to fulfilled are first, that hearing is to be given to prosecutor and counsel of accused, and secondly, reasons are to be recorded in support of conclusion that charge is groundless or that there is not probability of accused being convicted. [P. 1377] E 1994 SCMR 798 relied. PLD 1960 Lah 140, PLD 1971 Pesh. 198 ref. (iv) Criminal Procedure Code, 1898, (Act V of 1898)- —S. 417-(2)-Appeal against acquittal-Appellant prejured before Magistrate giving wrong address of respondents proved through documents- Witnesses appearing before testifying hearsay evidence, so much so they are interested witnesses as they are involved in civil litigation with respondents-Alleged receipts of huge payments are forged piece of documents suffering from overwritings not only in amount, words, date but also signatures of respondent are forged-Appellant omitted mention of civil suit filed against him by Respondent No. 1. on the subject matter-­ In the light of above, the complaint of appellant before Magistrate could not have resulted in conviction of Respondent No. 1-In the circumstances, power of acquittal exercised by Magistrate Under Section 249-A Cr. P.C. is legally sustainable-Appeal dismissed. [Pp. 1378,1379,1380,1381 & 1384] F, G, H, I, J & L 1969 SCMR 141 ref. 1976 P Cr. L.J. 699, PLD 1958 Lah. 738,1976 P.Cr. L.J. 153., 1973 P.Cr. L.J. 370,1977 P.Cr. L.J. 422,1984 P.Cr. L.J. 2737,1977 P.Cr. L.J. 135, PLJ 1979 Cr. C. (Lah) 392 PLJ 1981 Cr. C. (Kar. 110 ref. (v) Criminal Procedure Code, 1898, (Act V of 1898)-- —-S. 200~Delay in filing of private complaint-Although no such thing as limitation is prescribed in criminal prosecutions, but on the other hand longer a complaint is delayed lesser becomes chance of believing in its truth, more particularly when it is based upon entirely oral evidence. [P. 1384] K PLJ 1973 Kar. 279 ref. Mr. KB. Bhatti, Advocate for Appellant. Mr. Farogh Naseem, Advocate for Respondent No. 1. Mr. Abdul Sattar Kazi, A.A.G. Date of hearing: 23.11.1995. judgment The instant Criminal acquittal appeal has been filed under Section 417(2) of the Criminal Procedure Code impugning the order of acquittal passed by the learned VII Extra Joint Civil Judge and First Class Magistrate, Hyderabad, dated 9.6.1994 in Compliant No. 6 of 1994 and the order passed by the learned Sessions Judge, Hyderabad, dated 5.7.1994 dismissing the Revision Petition of the appellant against the order of the learned Magistrate in revision petition No. 47 of 1994. At the date of hearing three applications were fixed by the office i.e. M.A. No. 284 of 1994 which was the main application seeking special leave to appeal under Section 417(2) Criminal Procedure Code against the orders of the learned Magistrate and the learned Sessions Judge as already pointed out above; M.A. No. 490 of 1994 being an application seeking a direction from the court to issue a warrant against the Respondent No. 1 for his production in court; M.A. No. 691 of 1994, being an application under Section 561-A of the Criminal Procedure Code containing multiple prayers to the effect that the impugned orders be set aside, retrial be ordered, bailable warrants be issued against the Respondent No. 1 and principles of natural justice be complied with. 2. I had pointed out to Mr. KB. Bhatti, the learned counsel for the applicant/appellant that the latter two applications are completely misconceived considering that no orders as prayed therein can be passed till the applicant/appellant first makes out a case in respect of the first and the main application. In relation to the second application the question of issuing any warrant against Respondent No. 1 cannot arise till such time the orders so impugned hold the field. Likewise, any direction to set aside the impugned orders as sought in the third application would amount to putting the cart before the horse as the applicant/appellant has to first make out a case with regard to the main application Mr. KB, Bhatti, the learned counsel for the applicant/appellant after some discussion ultimately conceded on this score and did not press the later two applications i.e. M.A. No. 490/95 and M.A. No. 691/95, which are accordingly dismissed as withdrawn. In order to decide M.A. No. 284 of 1984 i.e. the main application/appeal it would be pertinent to first recapitulate the facts as stated by the respective sides. The applicant/appellant has alleged that one Mr. Harris Bashir Ahmed son of late Justice M.B. Ahmed, the Respondent No. 1, on behalf of his mother, Mrs. Rafia Ahmed and sister, Maliha and on his own behalf entered into sale agreements with the applicant/appellant for sale of agricultural land situated in Deh Daduki and Deh Behara, Taluka Tando Muhammad Khan. The two agreements were executed on 21.7.1992 and 17.8.1992, respectively. In respect of the two agreements the applicant/appellant alleged to have paid the Respondent No. 1 a sum of Rs. 3,25,000/- as advance/down payment in the presence of two witnesses at Karachi. It is also alleged by the applicant/appellant that the Respondent No. 1 in final settlement of the sale price as per the two agreements also received payments of Rs. 15,82,000/- and Rs. 9,00,000/- on 10.8.1993 and 1.1. 1994, respectively, all in cash, in a bungalow at Zeal Pak Road, SITE area, Hyderabad in the presence of witnesses. In support of his contention the applicant/appellant has attached copies of the said sale agreements dated 21.7.1992 and 17.8.1992, copy of a receipt marked as Annexure 'C' dated 15.6.1992 allegedly issued by the Respondent No. 1 for Rs. 1,00,000/-, a copy of pay order/cheque No. D/0833426/0033/24 dated 27.7.1992 issued by Habib Bank Limited, Hassanpur Sector, District Hyderabad Branch in favour of Respondent No. 1 of an amount of Rs. 1,75,000/-, and receipt of Rs. 9,00,OOO/- (marked as Annexure 'D') issued by Respondent No. 1 dated 1.1.1994. It is alleged by the applicant/appellant that the Respondent No. 1 while receiving the payments of Rs. 15,82,000/- and Rs. 9,00,000/- had stated to him that he would hold these payments as "amanats" of the applicant/appellant. Therefore, it is alleged by the applicant/appellant that he visited the Respondent No. 1 twice, and asked him to transfer the r agricultural land while the Respondents No. 1 refused to effect the transfer. It was in response to this alleged refusal that the applicant filed a direct complaint with the learned Magistrate on 28.2.1994 under section 406/420 read with Section 200 of the Criminal Procedure Code. On 2.3.1994 the learned Magistrate recorded the statement of the complainant under Section 200 Criminal Procedure Code, while directing him to produce all the prosecution witnesses on the next date. The matter was adjourned to 7.3.1994, on which date the complainant alongwith his counsel and two witnesses viz, Khair Muhammad and Sahib Dino attended and their statements were recorded under Section 202 of the Criminal Procedure Code. Subsequently, the learned Magistrate took cognizance of the matter and issued warrant to Respondent No. 1 who caused a voluntary attendance in Court alongwith his counsel on 25.4.1994, while moving applications for grant of bail as also for acquittal under Section 249-A of the Criminal Procedure Code on that date. The Respondent No. 1 was released on bail, while notice was issued to the other side in respect of the application under Section 249-A for 11.5.1994. On 11.5.1994 the applicant/appellant once again moved application for adjournment which was granted and the matter _ adjourned to 5.6.1994 as a last chance to the applicant Thereafter, on 9.6.1994 the application under Section 249-A was heard and counsel for both sides made submissions, while the learned Magistrate acquitted the Respondent No. 1 by allowing his application under Section 249-A, Aggrieved against the decision of the learned trial court the applicant/ appellant moved a Revision under Section 436 and 439-A of the Criminal Procedure Code before the Sessions Judge Hyderabad which was dismissed on ground as being not maintainable in view of the provisions of Sectio 439(5) of the Criminal Procedure Code, hence the present appeal/ application. 4. Mr. KB. Bhatti in support of his case has taken the preliminary objection that since the Respondent No. 1 is stated to be the attorney of his mother and sister in respect of the sale agreements in question and since no power of attorney to that effect has been filed by the Respondent No. 1 to confirm that he is in fact the lawfully appointed attorney of by his mother and sister, Mr. Muhammad Farogh Naseem, the counsel for Respondent No. 1 cannot cause appearance and cannot be allowed to defend Respondent No. 1 and also the Respondent No.l cannot be allowed to put up a defence. In support of this novel contention which I find of no legal relevance, Mr. Bhatti has placed reliance upon Shaikh Muhammad Shafique v. Humayun Kabir, PLJ 1981 Karachi 302. I have perused this decision which only holds that where an attorney has no power to admit or compromise a claim he cannot authorize an advocate to compromise the matter for the reason that a delegatee can only delegate the power which has been conferred upon him, rovided he has been authorized to do so. The case cited by Mr. Bhatti does not at all advance the contention propounded by him. This contention is completely misconceived. Just because the Respondent No. 1 has not filed in Court the power of attorney authorizing him to dispose of lands of his mother and sister it can hardly warrant debarring him and his counsel to put up a defence. In fact, the contention of Mr. Bhatti is patently opposed to the principles of natural justice and at the same time does not find place in any exposition of law or statute. Before parting with this particular issue, it may be pointed out that Mr. Muhammad Farogh Naseem, the learhed counsel for Respondent No. 1, had invited my attention to the fact that whether or not the Respondent No. 1 enjoys the power of-attorney from his mother and sister is not in dispute or issue and is completely irrelevant to the disposal of the present appeal for the simple reason that the applicant/appellant has himself impleaded Mr. Harris M.B. Ahmed as Respondent No. 1 in the memo of appeal, all of his allegations are directed against him, the complaint before the Magistrate itself had involved him, while it is a general principle of law that all parties to pleadings have the right of defence and audience. The contention/objection of Mr. K.B. Bhatti accordingly is devoid of any legal force and deserves summary rejection. 5. The next objection raised by Mr. KB. Bhatti as regards the impugned order passed by the learned Magistrate is that a fair opportunity was not given to the applicant/appellant or his counsel to contest the application under Section 249-A of the Criminal Procedure Code moved by the Respondent No. 1. In support of this contention, Mr. Bhatti has placed reliance upon Kala v. Sarkar, PLD 1969 AJK 65, where it has been held that when the date of hearing falls on a public holiday, parties as of right are entitled to a fresh notice of hearing and any ex-parte order so passed prejudicing the absentee parly would be illegal. I have perused the record and proceedings requisitioned from the Magistrate's court which confirm that time was repeatedly sought on 11.5.1994, and 5.6.1994 by the applicant/appellant which was duly granted by the learned Magistrate. In fact on 5.6.1994 while granting adjournment on the application moved by the applicant/appellant through one Mr. Zawar All Chandio, the learned Magistrate issued instructions that the next date i.e. 9.6.1994 shall be the last chance of hearing. On the next date of hearing i.e. 9.6.1994, the applicant/appellant and his counsel were all present while so were the Respondent No.'l and his counsel. The impugned order dated 9.6.1994 records the presence of Haji G. Mustafa Khan Gopang, Advocate, for the complainant (i.e. the applicant/appellant) as also the submissions made by him. Also the diary sheet in the trial court's file of 9.6.1994 from the records and proceedings requisitioned confirms the presence of the applicant/ appellant and his counsel as the same reads as follows :- "9.6.1994. Complainant and his counsel present Accused and his counsel present. Order announced accused acquitted under Section 249-A Criminal Procedure Code. Sd/- JUDGE" From the above there is little doubt that the applicant/appellant and his counsel were present at the time of hearing before the trial court and to say that the application under Section 249-A had been allowed ex parte or that the applicant/appellant was condemned unheard is, therefore, thoroughly refuted by the record itself. Mr. K.B. Bhatti has stated that there is a violation of natural justice since the counsel at the original stage, Mr. Haji Mustafa Gopang, was not competent enough and the court ought not to have allowed him to proceed with the matter. Mr. Bhatti stated that since the applicant/appellant is an illiterate man he could not decipher between competent and incompetent lawyers. Mr. Bhatti, however, has admitted that at the time of hearing of application under Section 249-A Mr. Gopang had appeared and made submissions. Mr. Bhatti has further stated that before the hearing on 9.6.1994, his client, the applicant/appellant, was not inclined to allow Mr. Gopang to make submissions and it was only when Mr. Gopang had made an attempt to convince the applicant/appellant that he would do a good job that the applicant/appellant allowed him to appear. Mr. Farogh Naseem, counsel for the Respondent No. 1 has vehemently opposed this plea of violation of natural justice advanced by the appellant/applicant and stated that the argument of Mr. Bhatti amounts to an abuse of the process of court Also allegations and averments made by Mr. K.B. Bhatti in respect of competence of Mr. Gopang behind his back were wholly uncalled for. I have perused the arguments on this issue and carefully examined the record. There is no breach or violation of the principles of natural justice. The appellant/applicant was not condemned unheard. On the contrary, the diary sheet dated 9.6.1994 as also the order of the learned Magistrate of even date confirms beyond any doubt that the appellant/applicant and his counsel were both present and at the time of hearing of the application under Sectio 249-A they had been given full opportunity to advance submissions and arguments. There is also no exparte order and the ruling cited by Mr. Bhatti reported as PLD 1969 AJ&K 65 is hardly applicable. While rejecting Mr. Bhatti's submission on this point I am also inclined to agree with the learned counsel for the respondent No. 1 that the contention of violation of natural justice as raised by Mr. Bhatti amounts to an abuse of the process of court in the obtaining circumstances when the entire record, proceedings and order confirm that there was no such violation and even when Mr. Bhatti subsequently agreed that there was no ex parie order and that Mr. Gopang and the appellant/applicant had duly caused appearance and were heard in court. 6. The next argument of Mr. K.B. Bhatti is that the learned Magistrate while exercising power under Section 249-A Criminal Procedure Code had materially erred inasmuch as that only two out of the six witnesses of the complainant i.e. applicant/appellant, had been examined and accordingly the entire proceedings before the Magistrate stood vitiated and the Court ought to direct a retrial. In support of his contention Mr. Bhatti has placed reliance upon The State v. BarkatAli, PLD 1960 Lahore 140 and The State v. Ghulam Muhammad, PLD 1971 Peshawar 198. Both these decisions are authority for the proposition that failure to examine all prosecution witnesses unless given up by the prosecution would vitiate the trial. Mr. Farogh Naseem has pointed out that these two cases are only relevant where the trial Judge allows the entire trial to proceed and thereafter passes orders. According to learned counsel for the Respondent No. 1 these decisions are not applicable to orders passed in the exercise of power under Section 249-A of the Criminal Procedure Code which itself states that the accused can be acquitted at any stage of the trial, provided that the requisite conditions are met and there is no illegality if the Magistrate has not examined all the witnesses. The contention of Mr. Farogh Naseem in this regard is also correct. I have been able to lay my hands on a recent decision of the Hon'ble Supreme Court of Pakistan reported as The State vs. Asif Alt Zardarl, 1994 SCMR 798 where writing for the Court Sajjad Ali Shah, J. (as he then was) has very extensively elaborated the requirements of Section 249-A Cr. P.C. According to the learned Judge an application under Section 249-A of the Criminal Procedure Code can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application has to be filed after evidence of all the witnesses is recorded. The only requirements to be fulfilled arefirst, that hearing is to be given to the prosecutor and the counsel of the accused and secondly, reasons are to be recorded in support of the conclusion that the charge is groundless or that there is no probability of the accused being convicted. In view of this clear pronouncement by the Hon'ble Supreme Court I reject the argument advanced by Mr. Bhatti that failure of the learned Magistrate to examine all witnesses has stained the impugned order of acquittal with illegality. The contention of Mr. Farogh Naseem that the two decisions relied upon by Mr. Bhatti are inapplicable to proceedings under Section 249-A whereunder a Magistrate can acquit at any stage provided other requirements are met, is correct 7. After dealing with the objections and issues as above I feel that unless the facts of the instant appeal are examined in depth on merits no justice could be done. I would accordingly now examine the case on merits. 8. Mr. Farogh Naseem the learned counsel for the Respondent No. 1 has invited my attention to many facts of the case. Accordingly to the learned counsel the entire attempt by the applicant/appellant is to illegally grab land and to avoid the operation of the forfeiture clauses contained in the sale agreements. The learned counsel has invited my attention to the statement of the applicant/appellant under Section 200 of the Criminal Procedure Code recorded by the learned Magistrate wherein he has stated that the Respondent No. 1, his mother and sister reside in Harrisabad in Tando Muhammad Khan. This statement is false and palpably incorrect and appears to have been designed to fraudulently manipulate the territorial jurisdiction of the court at Hyderabad. It is a fact which even Mr. Bhatti admitted before me during the course of arguments on merits and which is borne out from the sale agreements and the certificate of the councillor filed before the Magistrate as also from the record pertaining to service of notices to Respondent No. 1, that he (Respondent No. 1) resides permanently in Defence Housing Authority, Karachi. Moreover, the fact that the sale agreements were executed in Karachi to which the applicant/appellant is admittedly a signatory and that according to his own statement he had visited the Respondent's house in Karachi, leaves no iota of doubt that the applicant/appellant had perjured before the learned Magistrate while giving his statement under Section 200 Criminal Procedure Code in relation to the residence of Respondent No. 1. 9. Regarding the alleged receipt of payments in Hyderabad by the Respondent No. 1, the learned counsel for the Respondent No. 1 had assailed the same on the following scores :- (i) in clauses 6 of both the sale agreements it has been clearly spelt out that all payments were to be made by the applicant/appellant at Karachi at the residence of Respondent No. 1: (ii) the witnesses whose statements have been recorded before the Magistrate under Section 202 Criminal Procedure Code i.e. Khair Muhammad and Sahib Dino are all interested persons and parties with whom the Respondent No. 1 is fdre&dy la earn? titigstioa ia FSC No. 44 of J 294 and F.S.C. 53 of 1994 before the Senior Civil Judge, Tando Muhammad Khan: (iii) Moreover, both these witnesses in their statements under Section 202 of the Criminal Procedure Code testified hearsay evidence as in these statements the witnesses have expressed that they have learnt "that the Respondent No. 1 is committing fraud with the applicant/appellant." Admittedly, the personal knowledge of the witnesses in this regard are found to be completely lacking. (iv) The statement of the appellant/applicant under Section 200 Criminal Procedure Code as also of the witnesses under Section 202, of the Criminal Procedure Code and the memo of complaint filed before the Magistrate only specify that some payments were made in a bungalow on Zeal Pak Road, SITE area, Hyderabad. It is very strange that nowhere the actual house/bungalow has been pointed out/identified: (v) The receipt attached as annexure 'C' of Rs. 1,00,000/- dated 15.6.1992 proves on its very face that it is completely forged as the same is dated 15.6.1992 well before the said agreements were executed and no confirmation thereof exists in the agreements: (vi) The other alleged receipt of Rs. 9,00,000/- dated 1.1.1994 is a forged document which suffers from over-writing and even the signatures of the Respondents No. 1 thereon when compared with the signatures on the sale agreements predominantly suggests it to be forged. (vii) It is very hard to believe it even by commonsense that cash of Rs. 15,82,000/- and Rs. 9,00,000/- has been taken by appellant/applicant to an unidentified bungalow at Zeal Pak. Road, SITE area and the payment received by the Respondent No. 1 there, contrary to the Agreements, leaving out no payment to be made before the Registrar without the exchange of any document/title. 10. The above contentions of the learned counsel for the Respondent No. 1 carry a lot of force. Admittedly clauses 6 of both the sale agreements clearly spell out that the balance payments are to be made at the residence of the Respondent No. 1 at Karachi. Furthermore, after examining the statements of the witnesses under Section 202 of the Criminal Procedure Cade there is tittle doubt that the averments made therein to the effect that these witnesses have learnt that the Respondent No. 1 is playing fraud on the applicant/appellant are clearly hearsay and the same are thus inadmissible. Also the witnesses are interested persons considering that they 'have been co-parties with the applicant/appellant m Cm! disputes wi'tfi tfie Respondent No. 1 over agricultural properly before the Senior Civil Judge, Tando Muhammad Khan. Little or no probative value can be placed upon such statements of interested persons. In addition to the above, the said witnesses in their statements under Section 202 Cr. P.C. as also the hearsay evidence as in these statements the witnesses have expressed that they have learnt "that the Respondent No. 1 is committing fraud with the applicant/appellant." Admittedly, the personal knowledge of the witnesses in this regard are found to be completely lacking. (iv) The statement of the appellant/applicant under Section 200 Criminal Procedure Code as also of the witnesses under Section 202, of the Criminal Procedure Code and the memo of complaint filed before the Magistrate only specify that some payments were made in a bungalow on Zeal Pak Road, SITE area, Hyderabad. It is very strange that nowhere the actual house/bungalow has been pointed out/identified: (v) The receipt attached as annexure 'C of Rs. l.OO.OOO/- dated 15.6.1992 proves on its very face that it is completely forged as the same is dated 15.6.1992 well before the said agreements were executed and no confirmation thereof exists in the agreements: (vi) The other alleged receipt of Rs. 9,00,000/- dated 1.1.1994 is a forged document which suffers from over-writing and even the signatures of the Respondents No. 1 thereon when compared with the signatures on the sale agreements predominantly suggests it to be forged. (vii) It is very hard to believe it even by commonsense that cash of Rs. 15,82,000/- and Rs. 9,00,000/- has been taken by appellant/applicant to an unidentified bungalow at Zeal Pak. Road, SITE area and the payment received by the Respondent No. 1 there, contrary to the Agreements, leaving out no payment to be made before the Registrar without the exchange of any document/title. 10. The above contentions of the learned counsel for the Respondent No. 1 carry a lot of force. Admittedly clauses 6 of both the sale agreements clearly spell out that the balance payments are to be made at the residence of the Respondent No. 1 at Karachi. Furthermore, after examining the statements of the witnesses under Section 202 of the Criminal Procedure Code there is little doubt that the averments made therein to the effect that these witnesses have learnt that the Respondent No. 1 is playing fraud on the applicant/appellant are clearly hearsay and the same are thus inadmissible. Also the witnesses are interested persons considering that they 'have been co-parties with the applicant/appellant in Civil disputes with the Respondent No. 1 over agricultural properly before the Senior Civil Judge, Tando Muhammad Khan. Little or no probative value can be placed upon such statements of interested persons. In addition to the above, the said witnesses in their statements under Section 202 Cr. P.C. as also the appellant/applicant in his statement under Section 200 Cr. P.C. do not specify the exact number of the house at Hyderabad where such payments have been allegedly made. Prime facie this all appears to be a concocted story. Also the memo of the complaint filed before the trial Court does not specify the exact number of the house. It is also correct that the receipt of Rs. 1,00,000/- annexed as annexure 'C' dated 15.6.1992 is either forged or cannot relate to the sale agreements in issue which are dated 21.7.1992 and 17.8.1992, the receipt being prior in time to the said agreements which are also silent about such a payment of Rs. 1,00,000/-. Furthermore, annexure C-l which is a pay order/cheque dated 20.7.1992 of Rs. 1,75,000/- hardly advances the case of the appellant/applicant The sale agreement dated 2-1.7.1992 specifies a down payment of Rs. 2,75,000/- which is admitted by Respondent No. 1 The said cheque/pay order is only part of that down payment. 11. The allegation of the appellant/applicant is that two payments were alleged made to the Respondent No. 1 at Hyderabad. The first alleged payment was made on 10.8.1993 of the tune of Rs. 15,82,000/-. In respect of this payment the appellant/applicant himself at para 7 of the memo of appeal/application admits that he cannot prove the fact that such payment was made "except the will of God Almighty." As regards the second alleged payment of Rs. 9,00,000/- dated 1.1.1994 a receipt is attached as annexure 'D'. I have compared the signatures of the Respondents No. 1 appearing in that receipt with that of his signatures in the sale agreements. The learned counsel for the Respondent No. 1 at the time of hearing had also furnished enlarged photostat copies of actual signatures appearing in the said sale agreements and the enlarged copy of the signature in the receipt dated 1.1.1994. The said enlarged copies were also submitted as annexure B-l and B-2 at page 107 in the record and proceedings of the trial Court. After comparing the two there is little doubt that the alleged receipt of Rs. 9,00,000/- is a forged piece of document suffering from over-writing not only in the amount, words, date but also the signature of the Respondent No. 1 is undoubtedly forged, suffers from the same defect of over-writing and the forgery is more than apparent The two signatures do not tally in any manner. In the light of this there is substantial merit in the argument of Mr. Farogh Naseem that the entire idea behind the instant appeal or the earlier criminal proceedings before the trial Court and the Sessions Judge is to avoid the operation of the forfeiture clauses contained in ttye sale agreements and to illegally grab land. It has been pointed out by the learned counsel for Respondent No. 1 that a Civil Suit No. 699 of 1994 has been instituted by the Respondent No. 1 against the present appellant/apnlicant in the Court of Vlllth Senior Civil Judge Karachi (South) seeking a declaration to the effect that due to non-payment of the balance amounts/instalments the down payments stand forfeited and the suit also pertains to the same sale agreements and agricultural properties. The appellant/applicant in response h^s filed a written statement, affidavits and applications in the said suit. The applicant/appellant in the instant appeal has omitted mention of the civil litigation on the same subject matter which leaves me no option but to observe that he has approached this Court with unclean hands while suppressing materials facts. If there is any authority needed for the said proposition it is the case of Abdul Rashid v. Pakistan reported in 1969 SCMR 141. 12. The upshot of the above discussion is that, there is little doubt that the complaint made by the appellant/applicant before the trial Court and the oral and documentary evidence produced therein could not have resulted in conviction of Respondent No. 1 had accordingly the power of acquittal exercised by the Magistrate under Section 249-A is legally sustainable. 13. Mr. Farogh Naseem, the learned counsel for Respondent No. 1 has also placed reliance upon a number of decided cases for the point that even if the allegations made by the appellant/applicant are found to be correct they at best disclose a case of civil nature and no case of criminal liability could ensue. In this regard the learned counsel has placed reliance upon :- (i) Muhammad Sadiq vs. Muhammad All (1976 P.Cr. L.J. 699). (ii) Muhammad Osman v. The State (1976 P.L.Cr. L.J. (153). (iii) ZafarNiazi v. Riazuddin (PLD 1958 Lahore 738). (iv) Sadruddin v. Abdul Khaliq (1973 P.Cr. L.J. 370). (v) Sher Muhammad v. The State (1977 P.Cr. L.J. 422). (vi) Abdul Ghani v. Kandero (1977 P.Cr. L.J. 135). (vii) M/s Kashmir v. Ehsan Khawaja (1984 P.Cr. L.J. 2737). (vm)Abdul Karim v. Omar Hayat (PLJ 1979 Crim. Cases Lah. 392). (ix) Aba Umar Shaikh v. Abdul Rehman Shah (PLJ 1981 Cr. Cases Karachi 110). In the first case Muhammad Sadiq v. Muhammad Ali, the Lahore High Court was of the view that where the complainant claimed payment of sale price in relation to a buffalo sold by him the dispute was of a civil nature. Accordingly, criminal proceedings were quashed. In the second case Muhammad Usman v. The State it was held that mere refusal to payable money would not constitute an offence under Section 420 of the P.P.C. Once again the proceedings were quashed. In the third case referred i.e. Zafar Niazi v. Riazuddin the complainant's grievance was that he had submitted a correct solution of a cross-word puzzle and was thus entitled to a prize money of Rs. 8,000/-, but since he was not given the prize he lodged a complaint under Section 420 of the P.P.C. against the organizers of the puzzle. It was held that the dispute between the parties depended upon the question whether a correct solution had been submitted by the complainant and thus the matter was of a purely civil nature in relation to which the complainant could only claimed a remedy in a civil court. In the fourth case Sadruddin v. Abdul Khaliq the court was of the view the once buffaloes were entrusted to the accused for delivery to some one else and later the complainant agreed to receive a price of the buffaloes from the accused, the entrustment stood converted into a sale and the dispute only remained as to recovery of money which was purely of a civil nature. Proceedings were quashed accordingly. In the fifth case i.e. Sher Muhammad v. The State the court was of the view that where bicycles were taken for hire and not returned subsequently, the remedy available was only under civil law and not criminal law. Accordingly, the conviction and sentence under Section 420 of the P.P.C. were set aside, In the sixth case reported as Abdul Ghani v. Kandero the petitioner entered into an agreement with the Respondent for sale of his buffaloes and when possession of the buffaloes was parted with, the petitioners refused to pay the sale proceeds. In these circumstances it was held that the matter pertained to civil liability for rendition of accounts and a suit for recovery of money was the only proper remedy. Accordingly, criminal proceedings were quashed. In the seventh case i.e, M/s Ka&hmir v. Ehsan Khawqja a Division Bench of this court was of the view that the matter was of a civil dispute and the accused was not guilty of offence of criminal misappropriation, while the entire case was brought against him to pressurize him so that he could accede to the complainant's demand. In the eighth case, Abdul Karim v. Omar Hayat a criminal case under Section 406 and 420 of the P.P.C. was registered against the petitioner for not completing the contract to sell machinery to the Respondent It was held that the case was basically of civil nature and the petitioner was unnecessarily harassed in criminal litigation over a simple breach of contract. Accordingly, proceedings under Section 406 and 420 of the P.P.C. were quashed. In the last case referred to by Mr. Farogh Naseem learned counsel for the respondent No. 1 i.e. Aba Omar Shaikh v. Abdul Rehman Shah a complaint was filed before the Magistrate regarding a credit of Rs. 1,500/- in a transaction of cattle , purchase. It was held that the matter was of civil nature and the proceedings were accordingly quashed. 14. The decisions cited to the bar by Mr. Farogh Naseem advance the case of Respondent No. 1. Admittedly, the applicant/appellant and the Respondent No. 1 have executed sale agreements in respect of agricultural land. Even if it is assumed that the Respondent No. 1 had received the two payments of Rs. 15,82,000/- and Rs. 9,00,000/- on 10.8.1993 and 1.1.1994 respectively at Hyderabad, the same were admittedly in relation to sale of property reflecting balance or instalments of payments. To say thjit these payments were "amanats" or entrustments would not only be incorrect but inconsistent with the pleas advanced by the applicant/appellant at the time of hearing as also in the complaint before the trial court, and the statements recorded in pursuance thereof and the memo of the instant appeal. The applicant/appellant has unequivocally stated that these payments reflected the selling price in pursuance of the two sale agreements. To say that these payments were "amanats"/ entrustments and sale proceeds would amount to blowing hot and cold at the same time. Even if these payments were "amanats" at the first instance they were converted into sale proceeds the moment applicant/appellant started to demand transfer/mutation of land on the basis of these payments, in view whereof these payments reflect nothing but contractual considerations, if at all such payments have been made. Thus the alleged payments can by no means be termed as entrustments and the matter in essentially of a civil nature. Mr. Farogh Naseem has further placed reliance upon the case of Haider Ali v. Khuda Dino reported as (1976 P.Cr. L.J. 195) for the authority that entrustment of property in the form of "amanats" cannot be found till the complainant categorically specifies the purpose for which the entrustment or "amanat" is made. In the present case no such purpose for entrustment has been spelt out Para 5 of the complaint filed before the trial court only states the factum that entrustment has been made but the purpose thereof remained unspecified. Even if any purpose for the entrustment is squeezed from the facts it would be the purpose as a sale consideration in which case the matter would once again be of a civil liability. Mr. K.B. Bhatti while stating that the matter is not of a civil nature has relied upon :- (i) Abdul Latifv. The Crown (PLD 1952 Lahore 648). (ii) Emperor v. Debendra Prosad (36 Calcutta 573). (iii) In re Ventaka GuruNatha Sudri (AIR 1923 Madras 597). In the first case i.e. Abdul Latifv. The Crown a. learned single Judge of the Lahore High Court had observed that where no evidence of misappropriation or conversion was available and the accused person was under an obligation, in relation to the money in question to deal with it in a particular way, the court cannot reach any conclusion to the effect that the accused did not fulfil his obligation upon mere presumption, and it would be the duty of the prosecution to establish, by such evidence as may be available, that in fact the accused was guilty of contravening his duty in respect of the particular sum in question. In the second case i.e. Emperor v. Debendra Prosad, on a charge against the accused of cheating by falsely representing that he was the Dewan of the estate and could procure for the complainant's appointment to the vacant post of manager to the estate, and thereby obtained a sum of money as a pretended security deposit, evidence of instances of similar but unconnected transactions with other persons, before and after the date of offence charged was held to be admissible. In the third case In re : Ventaka Guru Natha Sudri, it was held that a breach of trust in respect of one's own property pledged with another was quite possible. These three cases cited by Mr. KB. Bhatti do not have any bearing on the present case and do not in any manner advance the case of the applicant/appellant. There is thus little doubt that the orders of the learned trial Court as also the learned Sessions Judge are legally sound and call for no interference. One of the main objects of Section 200 of the Criminal Procedure Code is to protect the public against false, frivolous or vexatious complaints filed I criminal courts and the Magistrate ought not to lightly accept written complaints and proceed to issue processes unless they have thoroughly sifted the allegations made against the accused and is satisfied that a prima facie case has been made out against those who are accused of criminal offences. (See Hashim Haji Sharif v. Mir Khan Jan, PLD 1950 Baluchistan 7). I accordingly hold that at best the case/dispute between the parties is of a civil nature and the provisions of criminal law are incorrectly invoked by the applicant/appellant. 15. My attention has been invited by Mr. KB. Bhatti to the order passed by the learned trial court dated 9.6.1994 wherein at para 2 it has been stated that notice was issued to the prosecution on 25.5.1994 for arguments on 11.5.1995. Mr. Bhatti has argued that this is a physical impossibility as notices cannot be issued for arguments on a back date. The learned counsel has tried to convince me that this would confirm the mala fide nature of the order passed by the learned Magistrate. On the other hand Mr. Farogh Naseem the learned counsel for Respondent No. 1 has invited my attention to the fact that refer to the date 25.5.1994 in the impugned order is nothing but a typographical error and the same should be read as 25.4.1994. I have examined the contention of the learned counsel for respondent No. 1 which is correct in the light of the diary she in the record and proceedings of the trial court. The date is to be read as 25.4.1994 and not 25.5.1994. On grounds of a mere typographical error it cannot be held that the entire order illegal, bad or even mala fide. The mistake is an honest typographical having no bearing on the merits of the case which I hereby rectify. 16. Before finally parting with the judgment another is warrants mention. The applicant/appellant in his complaint has stated that on 31.1.1994 it was allegedly made clear by the Respondent No. 1 that he would not be transferring the properties in issue. The applicant/appellant waited and it was only on 28.2.1994 that he lodged a direct complaint under Section 200 of the Criminal Procedure Code. Mr. Farogh Naseem has cited the decision of Khadija v. The State (PLJ 1973 Karachi 279) wherein Tufail All A. Rehman, CJ. (as he then was) had observed that although no such thing as a limitation in prescribed in criminal prosecutions, but on the other hand the longer a complaint is delayed the less becomes the chance of believing in its truth, more particularly when it is based upon entirely oral evidence. Mr Farogh Naseem has contended that through this decision the general principle of criminal law that delay in registering a case renders that case questionable, has been extended to criminal complaints under Section 200 of the Criminal Procedure Code as well. The contention is correct and no explanation has been offered to account for the delay between 31.1.1994 and 28.2.1994. On this score also the complaint before the learned Magistrate becomes seriously questionable. 17. In the result the appeal/application is dismissed in limine. (M.A.A.) Appeal dismissed in limine.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 1385 (DB) [Abbottabad Bench] Present: mahbub alj khan and second judge's name is not DECIPHERABLE SHTPAZ-Petitioner versus MUHAMMAD AYUB and another-Respondents Criminal Revision No. 46 of 1994, accepted on 10.4.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 435/439 read with S. 561-A--Pakistan Penal Code 1860, S. 302(b)« Revision-Double murder-S.H.O./Investigating Officer reaching at venue of incident within 15 minutes-Complainant promptly making straight forward narration of event-Motive as alleged admitted by accused in his statement under Section 342 Cr. P.C.-Trial Court was convinced about presence and truthfulness of eye-witness about apprehension of accused at spot by constables-Constables were believed for having no animosity or motive against accused to falsely implicate him-Evidence of prosecution witness corroborative on material points-Report of Arms expert positive-Accused in judicial confession taking plea of self defence, on contrary, showing complete ignorance of event when examined under section 342 Cr. P.C. hence is of no assistance to him, even no elements of "Ghairat" as contended by defence counsel, can be located in prosecution evidence-Trial Court rightly held him guilty of murder but awarded lesser punishment holding him acted under self defence—Held : His being wanton act cannot be ignored-Respondent is found guilty of "Qatle-AmcT-Housing regards to facts and circumstances of case his sentence is enhanced to life imprisonment on two counts-Revision is accepted. [Pp. 1390, 1391, 1392 & 1393] A, B, C, D, E, F, G, I K, L, M & N 1994 SCMR 1733, NLR 1995 S.C.J. 264, PLD 1994 Lah. 392 ref. (ii) Pakistan Penal Code, 1860- —S. 302-Self defence-Undoubtedly, accused, even if do not produce any evidence of his own, nevertheless is entitled to support his plea of private defence from circumstances appearing from prosecution evidence itself. [P. 1392] J (iii) Qunun-e-Shahadat Order, X 1984- —-Article-121-Burden of Proof-Burden of proving that case of accused comes within exception is on his shoulders and he is to discharge this burden by proving existence of circumstances. [P. 1392] H Mr. Mushtaq All Tahir Kheli, Advocate for Petitioner. Mufti Muhammad Idris, Advocate for Respondent Muhammad Ayub. Mr. Tahir Hussain Lughmani, Advocate for State. Date of hearing: 10.4.1996. judgment Mahbub Ali Khan, J.-Muhammad Ayub the respondent-accused faced prosecution before Additional Sessions Judge, Haripur on a double murder charge and on the conclusion of trial the learned Court while finding him guilty of the commission of an offence punishable under section 302 Ob) PPC convicted the accused and sentenced him to suffer rigorous imprisonment for a term of 7 years with fine of Rs. 1,50,000/- or 2 years R.I. in default, vide judgment and order, dated 19.12.1994. The convict being satisfied with his conviction and sentence did not appeal while P.W. Muhammad Sheraz (lodger of the report) has moved this Court in revisional jurisdiction under section 435 read with section 439 Gr. P.C. with a prayer that term of sentence awarded to the accused may be enhanced into death or imprisonment for life as 'Tazir' having regard to the facts and circumstances of the case. 2. The event of murder as we find in the report lodged by P.W. Muhammad Sheraz with Bukhtiar Ahmad S.H.O., Police Station, Ghazi on the spot at 9 a.m. on 12.5.1991 arose as under :- "P.W. Muhammad Sheraz accompanied by his father Sikandar Khan, cousin Munsif Khan and brother Muhammad Riaz at morning on the fateful day started from village Ghor-Ghashti for harvesting wheat and when arrived at village Jharian near the police Post, Muhammad Sheraz and Muhammad Riaz stopped at their Tube-well while Sikandar Khan and Munsif Khan proceeded onward. They immediately on the report of fire shots came out of the Tube-well and noticed accused Muhammad Ayub firing at Sikandar Khan jind Munsif Khan who simultaneously on the receipt of gun shots fell to the ground and expired. P.W. Sher Afzal son of Zaffar Khan who happened to be present near the spot also witnessed the event besides the complainant and his bother. Many people from the surroundings were collected at the venue in the meanwhile on the alarm raised by Muhammad Sheraz. The accused by the decamped from the sot with a .12 bore shot gun in hands. Muhammad Ayub had some Jaaded dispute with Sikandar Khan which P.W. Muhammad Sheraz had mentioned in the report as motive behind the killing of his father arid cousin". 3. The event had allegedly taken place at 8.30. a.m. while Muhammad Sheraz lodged the report with Bukhtiar Ahmad S.H.O. on the spot at 9 a.m. The S.H.O. happened to be on 'Gusht' in Bazaar at village Khalu and immediately on hearing the news reached the venue with police party. P.W. Bukhtiar Ahmad S.I. after transmitting the Murasila Ex. P.A./1 to P.S. for registration of a regular case took detained inspection of the spot. No picked four .12 bore empties from the venue and prepared site plan Ex. P.W. 13/1 correct with foot notes at the pointation of eye witnesses and injury statements, inquest reports Ex. P.W. 8/2, 8/3, 8/5 and 8/6 of the two deceased. The I.O. found dead body of Sikandar Khan deceased at point No. 1 and that of Munsif Khan at point No. 2. He took into possession blood stained earth from these places and sealed it into parcel. P.W. Muhammad Sheraz saw accused Muhammad Ayub while firing with a .12 bore shot gun at the deceased from point No. 3. Point No. 4 denotes the place of P.W. Muhammad Riaz and point No. 5 that of Sher Afzal. The accused had fired while standing at point No. 6. The distance between points No. 1 and 6 is ten paces, 2 and 6 twelve paces, 1 and 3 thirty seven paces, 1 and 4 thirty six paces and 1 and 5 thirty paces. Accused Muhammad Ayub during the process of decamping was immediately after the event caught by F.Cs. Jehanzeb, Fazalur Rehman, Sharafat and Fazal Dad and brought to Police Check Post, Jharian. The S.H.O. on arrival to the spot made formal arrest of the accused and disarmed him of a .12 bore automatic shot gun with a bandolier containing 5 live cartridge (vide memo Ex. P.W. 3/1) of which F.Cs. Fazalur Rehman and Sharafat are signatories. The accused on 14.5.1991 was produced before Mr. Azizullah Khan, Resident Magistrate, Tarbela (P.W. 7) who recorded his confessional statement (Ex. P.W. 7/3) which after having been read over to the accused was duly signed by him alongwith the questionaire Ex. P.W. 7/2. 4. Dr. Muhammad Qasim (P.W. 8) on 12.5.1991 conducted autopsy on the dead body of Sikandar Khan deceased at Rural Health Centre, Ghazi and found on external examination :- 1. A firearm entrance wound on the right side of face over the maxilla (cheek) 5 c.m. x 2.5 c.m. 2. A firearm exit wound behind the right ear 7 c.m. x 3 c.m. . The Doctor recovered two pellets from back of the skull. On internal examination the Doctor found scalp, skull, membrain and brain injured. In his opinion the death had occurred due to fire shot injury to the brain which was instantaneous. 5. On the same day Dr. Muhammad Qasim also conducted postmortem on the dead body of Munsif Khan and found on external examination :- 1. A firearm entrance wound on the right side of nose 1.5 c.m. X 1.5 c.m. 2. A firearm exit wound on the right side of skull behind the ear 2.5 c.m. x 1 c.m. 3. Three firearm exit wounds 1/2 c.m. x 1/2 c.m. 4. Right ear pinna injured on the top with a wound 2.5 c.m. x 1/2 c.m. A piece of pellet was recovered from this wound. On internal examination the Doctor found scalp, skull, brain, membrain injured. In this opinion the death was instantaneous and caused as a result of fire shot injury to brain. He accepted the correctness of his postmortem report Ex. P.W. 8/4. 6. Muhammad Sheraz (P.W.9) is son of Sikandar Khan deceased and lodger of the report Ex. P.A/1 with Bukhtiar Ahamd S.H.O., Police Station, Ghazi on the spot. His statement made before the trial Court would indicate that after taking breakfast in the house on 12.5.1991 Muhammad Sheraz accompanied by his father Sikandar Khan, cousin Munsif Khan and brother Muhammad Riaz started for harvesting wheat and when they reached at Tube-well in village Jharian near Police Check Post complainant and Muhammad Riaz stopped on the Tube-well while Sikandar Khan and Munsif Khan went ahead to the fields for cutting wheat crop. In the meanwhile Muhammad Sheraz heard the report of fire shots and saw ccused Muhammad Ayub firing at this father and cousin with a shot gun who simultaneously on the receipt of injuries fell to the ground and expired. Muhammad Sheraz and Muhammad Raiz rushed towards the deceased while accused Muhammad Ayub in the meanwhile decamped from the spot. n their alarm some people from the vicinity gathered on the spot followed by local police headed by Bukhtiar Ahmad S.H.O., P.S., Ghazi with whom Muhammad Sheraz lodged the report within 30 minutes. Accused Muhammad Ayub resides at the same place where Tub-well of the complainant party and the disputed land situate. Police Check Post Jharian according to the statement of P.W. Muhammad Sheraz lies at a distance of about 100 paces from the spot. The complainant stated that accused while decamping from the venue was intercepted by the police men posted at the Check Post. P.W. Muhammad Sheraz almost on all material particulars corroborated contents of his report Sher Afzal son of Muzaffar Khan (P.W. 10) who is a resident of village Ghor-Ghashti and has been mentioned in the report as an eye witness by Muhammad Sheraz also narrated happening of the event almost in the same manner. Sher Afzal was going to Ghazi on that day and in order to get some conveyance he went to Jharian Bus Stop. He heard the report of fire shots in the meanwhile while proceeding towards the road side and saw accused Muhammad Ayub firing at Sikandar Khan and Munsif Khan with a .12 bore shot gun. In this view both the deceased on the receipt of fire shots fell to the ground and succumbed to their injuries. Sher Afzal had before firing seen P.Ws. Muhammad Sheraz and Muhammad Riaz coming out of their Tube-well on hearing the fire shots. He stated that on the noise raised by Muhammad Sheraz and Muhammad Riaz people from the surroundings collected on the spot followed by local police headed by S.H.O., Police Station, Ghazi within 15 minutes. Sher Afzal has stated that police post Jharian is at a distance of about 10 to 15 paces from the venue and the S.H.O. recorded report of Muhammad Sheraz at the Check Post. 7. Bukhtiar Ahmed SHO Police Station, Ghazi (P.W. 13) deposed, that on 12.5.1991 he was at village Khalu when got news of the event and immediately proceeded towards the spot alongwith police party and on arrival recorded report Ex. P.A./1 at the instance of P.W. Muhammad Sheraz which he afterwards sent to Police Station for the registration of a case against the accused. The S.H.O. then inspected in detail the venue and took into possession some blood stained earth and 4 empties of .12 bore shot gun. He draw site plan Ex. P.W. 13/1 on the pointation of the eye witnesses and prepared the injury statements and inquest reports (Ex. P.W. 8/2, Ex. P.W. 8/3, Ex. P.W. 8/4 and Ex. P.W.^8/6) of the deceased and sent the dead bodies to Rural Health Centre, Ghazi for postmortem. Bukhtiar Ahmad SHO arrested accused Muhammad Ayub on the spot and disarmed him a .12 bore S.B. automatic shot gun Ex. P. 5 with 5 live cartridges Ex. P. 7 and a bandolier Ex. P.8 in presence of witnesses mentioned in the memo Ex. P.W. 3/1. Bukhtiar Ahmad S.I. produced accused Muhammad Ayub before a Magistrate on 14.5.1991 and he made a statement confessing guilt. The deceased had gone to harvest wheat from land shown at point 'A' in the site plan where from dwelling house of the accused situates at a short distance of few paces. Mr. Azizullah Khan (P.W. 7) was Resident Magistrate at Tarbela during those days. Accused Muhammad Ayub was produced before him on 14.5.1991 by the local police who voluntarily made a confessional statement (Ex. P.W. 7/3). P.W. Mr. Azizullah Khan before the trial Court has stated that accused was given sufficient time to ponder over the matter in free atmosphere by making him sit on the dias in his Court room after his hand­ cuffs were removed and police officials turned out The appellant in his statement recorded under section 342 Cr. P.C. although admitted of making a statement before Mr. Azizullah Khan, Resident Magistrate, Tarbela on 14.5.1991 but stated that it is not faithful rendering of the account given by him. He did not, however, make any statement on oath or produced defence. 8. We have heard Mr. Mushtaq ll Tahir Kheli advocate on behalf of the petitioner complainant of this criminal revision petition, namely, Muhammad Sheraz son of Sikandar Khan deceased, Mufti Muhammad Idris advocate for accused-respondent Muhammad Ayub and the State Counsel who mainly spoke in line of the arguments addressed by Mr. Tahir Kheli. It is pertinent to note that accused Muhammad Ayub against his conviction and sentence did not file any appeal. The prosecution ocular evidence in this case consisted of the statements of P.Ws. Muhammad Sheraz and Sher Afzal. Muhammad Sheraz who had accompanied his deceased father and cousin early morning from the house had seen event alongwith his brother Muhammad Raiz who on the report of fire shots came out of the Tube-well situated at close range from the venue and saw accused Muhammad Ayub firing with an automatic .12 bore shot gun at both the deceased. The occurrence had taken place at 8.30 a.m. on 12.5.1991 on the road side near Police Post Jharian while Muhammad Sheraz lodged a report with P.W. Bukhtiar Ahmad S.H.O. on the spot at 9 a.m. The police had reached the venue within 15 minutes from village Khalu where the S.H.O. during 'gusht' heard the news. The report made by P.W. Muhammad Sheraz is a straightforward narration of facts of the event. He has also mentioned of Sher Afzal as an eye witness of the happening in the report who appeared before the Court during trial of the case and made a statement as such. The motive was some land dispute between Sikandar Khan and accused Muhammad Ayub which had been allegedly resolved before the occurrence by the partitioning of that piece of land between the deceased and accused Muhammad Ayub as court statement of the complainant indicates, the fact which has been admitted further by the accused himself in this statement recorded under section 342 Cr. P.C. P.W. Sher Afzal in his statement corroborated the evidence of Muhammad Sheraz complainant on all material particulars. We fail to understand that on what material other than the evidence recorded before the trial Court the learned Additional Sessions Judge shown his doubts on the eye witness account of the even narrated by P.W. Muhammad Sheraz and about his presence on the spot at the relevant time by advancing a fancy reason, that if Muhammad Sheraz had been armed at the relevant time on the spot alongwith this brother Muhammad Riaz they both would have killed the accused and in case they were not armed the accused would have killed them. It was no occasion for the complainant to have killed the accused even if he was armed for the simple reason, that accused Muhammad Ayub immediately after the event was caught by the Police Constables of Police Check Post alongwith the crime weapon and produced before the S.H.O. within few minutes. The presence of P.W. Muhammad Sheraz on the spot is not only established by the reason of his making report with Bukhtiar Ahmad S.I. at the venue within a span of 30 minutes but also from the statements of P.W. Sher Afzal and that of I.O. Bukhtiar Ahmad himself who happened to be author of the report himself and arrested the accused on the spot. There is nothing on the record to suggest that why P.W. Sher Afzal made a false or biased statement or that he had any exe of his own to grind against the accused. Similarly, the learned trial Judge had no reason with him showing doubt on the presence of P.W. Sher Afzal on the spot at the relevant moment. He at the same time, however, got himself convinced with the truthfulness of prosecution evidence that the accused was apprehended by the police at the spot and disarmed of a .12 bore automatic shot gun. He believed evidence of F.Cs. Fazalur Rehman and Jehanzeb on this score by stating that they had neither any animosity against the accused nor a motive to implicate him in a false case. The learned trial Judge further believed opinion of the Arms Expert that 4 empties recovered from the spot had been fired from the shot gun of which the accused was disarmed at the time of his arrest. 9. The accused on the 3rd day of his arrest appeared before Resident Magistrate, Tarbela and made a detailed confessional statement. He subsequently in his statement recorded under section 342 Cr. P.C. recorded on the conclusion of trial of the case did not disown of making said statement before Mr. Azizullah Khan Magistrate but complained that it is not faithful rendering of the account given by him. The accused did not, however, elaborate that which facts he told to the Magistrate and he did not record or which facts he told to the Magistrate and he did not record or which facts he did not tell but the Resident Magistrate of his own added in the statement. A bare reading of the confessional statement (Ex. P.W. 7/3) would indicate that the accused had gone to England inline year, 1953 wherefrom he remitted sizeable amount of money to Sikandar Khan who purchased land or him but the deceased did not afterwards deliver possession of the purchased land to the accused on his return from England despite his best efforts. That on the day of occurrence when Sikandar Khan wanted to cut standing wheat crop from the said land the accused also went there armed with a .12'bore shot gun and on seeing him when Sikandar Khan tried to attack him and snatch from the accused his shot gun it (the shot gun) during the encounter that took place went off and injured Sikandar Khan . That Munsif Khan nephew of Sikandar Khan who v/as present at the occasion wanted to attack the accused with a dagger and he in private defence of his life fired at Munsif Khan. That in the meanwhile police from the Check Post arrived and caught hold of him and took him to the Check Post. But the accused in his statement recorded under section 342 Cr. P.C. showed total ignorance of the event and did not say a word that he ever fired at the deceased in the exercise of his right of private defence of life and property. 10. Mr. Mushtaq All Tahir Kheli advocate while speaking on behalf of the petitioner stated, that the accused in his confessional statement recorded before a Magistrate on the third day of his arrest stated that Sikandar Khan got killed when the deceased on seeing the accused near the land whereupon he puts an ownership claim advanced towards the accused for snatching .12 bore shot gun from his hands and in the grappling that took place the gun went off and hit Sikandar Khan while he shot at Munsif Khan who immediately after that wanted to attack the accused with a dagger and in this way he pleaded a case oh self defence of life and property. But the accused did not say a word when examined under section 342 Cr. P.C. on the question of confessional statement by answering simply that he made a statement before Mr. Azizullah Khan, Resident Magistrate, Tarbela "but it is not the faithful rendering of the account given by me". That the accused did not, however, elaborate as what part of the statement renders faithful account and what part of it he disowns. He is this way neither accepted trustfulness of this statement nor resiled therefrom. The learned Advocate, therefore, argued by placing reliance on article 121 of the 'Qanun-e- Shahadat 1984 that burden of proving that case of the accused comes within exception was on his shoulders and he was to discharge this burden by proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code, or within any special exception or proviso contained in any other part of the some Code and the Court shall presume the absence of such circumstances. He argued further by referring to Article 122 of 'Qanun-e-Shahadat', that when any fact is especially within the knowledge of any person the burden of proving that fact is upon him. By stating further the learned Counsel contended that the accused not only could prove that he acted in self defence in the murdering of two persons showed on the contrary complete ignorance of the event when examined before the Court under section 342 Cr. P.C. 11. Mufti Muhammad Idris advocate conversely argued on behalf of the accused, that confessional statement made by his client has to be read as a whole and either accepted or rejected in entirety. He stated further that never-the-less the accused was entitled to support his plea of private defence from the circumstances appearing from the prosecution evidence and that the right of an individual to defend himself against any aggression whether against his person or property being recognized by the Injunctions of Islam as laid down in the Holy Quran and Sunnah the Courts are bound to apply the provisions of law even if they do not make any allowance relating to a 'QatT committed in self defence and referred to section 338-F P.P.C. and in support thereof placed reliance on the case 1994 SCMR 1733, NLR 1995 S.C.J. 264 and PLD 1994 Lahore 392. 12. Undoubtedly, the accused even if did not produce any evidence of his own never-the-less was entitled to support his plea of private defence from the circumstances appearing from the prosecution evidence itself. But . the prosecution evidence recorded in this case would indicate that it is of no W assistance to the accused and he cannot, therefore, make out any case in support of his plea of private defence. The evidence of his adversories on close review does not spell out even to a reasonable possibility that his plea of self defence might be true. The cited Supreme Court cases as such are distinguishable. Similarly a question arose before the Court in the cited Lahore Case, that as to whether a "Qatl" committed on account of 'ghairat' would not be a "QatJ-i-Amd" pure and simple and persons found guilty of such "Qatil" would deserve concession is also distinguishable for the reason, that accused in this case did not take any plea that he killed the two deceased on 'ghariat' nor any thing can be located from the prosecution evidence that there was any element of 'ghairat' involved in this case which prompted the accused in killing two persons. This would be besides the point that the prosecution case has been proved against the accused beyond any reasonable doubt not only on the testimony of two eye witnesses but also on this strong circumstance that he immediately after the event was arrested on the spot by the Police Constables of the Check Post and disarmed of the crime weapon, the evidence which by itself was sufficient to base conviction of the accused on the murder charge notwithstanding the lone circumstances of his confessional statement which at the most can be read in corroboration to the said ocular and circumstantial evidence. The learned trial Judge rightly did this and held the accused guilty of the murder of Sikandar Khan and Munsif Khan deceased but in his opinion the accused acted in the exercise of his right to defend his property and his case came under exception. 13. This is not true as we find from the evidence. The murders have not taken place in the land owned and possessed by accused Muhammad Ayub comprised in Khasra No. 47/1/1 but on the bank of Lawrancepur Ghazi Road wherefrom the I.O. recovered blood and collected the dead bodies. These places have been shown by Bukhtiar Ahmad S.I. in the site plan as points No. 1, 2 and 6. It, therefore, followed that neither any grappling before the firing took place between accused Muhammad Ayub and Sikandar Khan deceased nor the accused had any occasion to kill Munsif Khan. The reason being that in case of any grapping between Sikandar Khan and accused Muhammad Ayub there had been blackening/charring on the dead body of the deceased the gun having been allegedly gone off during that process and similarly the non-recovery of any dagger from the spot would also falsify that Munsif Khan wanted to assault Muhammad Ayub with a dagger after the first fire shot and accused in defence of life and property had to fire at the deceased. The accused in the circumstances never acted in defence of life or property by putting two persons to death simultaneously with fire shots discharged from an automatic .12 bore gun and his being a wanton act could not be ignored or excused on any score. He could have been, therefore, outrightly convicted under section 302 (b) PPC having been found guilty of the commission of an offence of "Qatl-e-Amd" and punished with death or imprisonment for life as "Tazir": having regard to the facts and circumstances of the case which we would by accepting this revision petition enhance to the sentence of life imprisonment on two counts. We do not understand as to how the punishment on two counts. We do not understand provided u/S. 302 (b) PPC being either death or imprisonment for life the learned trial Judge did pass a sentence of 7 years after having convicted the accused. The accused would further make payment of a sum of Rs. 4,00,000/- (two lacs each) as compensation to the legal heirs of deceased Sikandar Khan and Munsif Khan under section 544-A Cr. P.C., which shall be recoverable as arrears of land revenue and the accused in default suffer imprisonment for a period of 6 months. The revision petition in these terms shall be disposed of. (M.A.A.) Revision accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1394 [Bahawalpur Bench] Present: MUHAMMAD NASEEM, J. HUSSAIN AHMED alias MADNI-Petitioner versus STATE-Respondent Crl. Misc. No. 497/B of 1995 dismissed on 7.8.1995. (i) Bail» —S. 497(2)Cr. P.C. read with S. 302/34 PPC-Murder--Offence of—Bail refused by Sessions court-Challenge to--Affidavits of witnesses in defence of accused about a/z6i--Sworning of oath on Holy Quran about innocence of accused~I.O./SDPO declared the accused innocent-Held: It was a futile attempt on the part of the 1.0. to help petitioner-aecused-There is no provision in Cr.P.C. to get settled such matters on oath of Holy Quran of persons strangers to case-Holding "punchayats" even in mosques is devoid of any legal force-Such methods are adopted by police to help accused persons~If such working is approved then what is necessity of holding investigation according to provisions incorporated in Cr.P.C.-It has become a trend in police department that Investigations are conducted by Police Officers on personal whims and figment, of brain of Investigating Officer-If weight is given to such a working there would be judicial anarchy resulting in administrative chaos whereby law and order situation would worsen-Bail refused. [Pp. 1397 & 1398] A <ii) Qanoon-e-Shahadat Order, 1984- —Art 163 read with S. 97 Cr.P.C. and 302/34 PPC-Practice of taking oath on Holy Quran adopted by police officers during investigation of criminal cases-Held: In criminal matters acceptance or denial of facts on oath during trial and on same reasoning during investigation is not provided/allowed-Thus opinion if any on basis of oath would be considered to be devoid of force—If matters during investigation are to be disposed on oathn texture of whole of working in matter becomes un­ necessary as one Police Officer can perform such a duty even in office of Superintendent of Police of District without visiting spot or collecting evidence which is not intention of law~If such type of working is approved there may not be chaos in society with passage of time-Held further: By adopting such a working I.Os make attempt to desecrate Holy Quran who should refrain themselves therefrom lest wrath of God may not fall-It is simply surprising that Senior Police Officer of rank of DSP/SDPO also affirmed said working of I.O.--Case falls within prohibitory clause-Bail refused. . [P. 1399] B & C PLD 1990 S.C. 83 ref. Mian Muhammad Tayyab Watto, Advocate, for Petitioner. Mr. Nasir ud Din Advocate, for State. Date of hearing: 7.8.1995. order Mst. Ghulam Jannat complainant got recorded FIR No. 32 dated 30.1.1995 at Police Station Minchinabad under sections 302/34 PPC about the murder of her husband Ghulam Rasool on 30.1.1995 at Isha Wela in her house situated in Mauza Adhan Wah, Tehsil Minchinabad, District Bahawalnagar. It is narrated in the FIR that she was issueless. On 30.1.1995 at Isha Wela after taking the dinner she and her husband Ghulam Rasool deceased were sitting near the hearth. The lantern was on in the court-yard, she went towards the outer door after collecting the utensils. In the meanwhile Hussain Ahmad Shah alias Madni Shah petitioner-accused armed with a rifle alongwith Khalil Ahmad Shah and Saeed Ahmad Shah each armed with gun arrived there who raised the lalkara that they would take the revenge of the murder of their brother Bashir Ahmad. They started the firing. The fire effected by Khalil Ahmad Shah hit the left flank of Ghulam Rasool while Hussain Ahmad Shah alias Madni Shah fired with his rifle which hit the right side of the head of Ghulam Rasool. Saeed Ahmad Shah co-accused raised the lalkara and made the ineffective firing. Ghulam Rasool fell down. Ahmad Shah and Khadim Hussain PWs were attracted to the spot who also saw the occurrence. Ghulam Rasool was removed to Civil Hospital, Minchinabad who expired. The post-mortem examination on the dead-body was conducted. The Medical Officer found three injuries on the person of the deceased. He declared injury No. 1 as "Shajjah-e-Khafifah" and caused by blunt weapon which was on the head of the deceased. Hussain .Ahmad Shah alias Madni Shah was arrested who led to the recovery of the licenced rifle of his brother form his house while under police arrest on 4.5.1995. During the investigation the petitioner took up the plea of alibi to the effect that he was no present in the Mauza on the alleged date and time of occurrence. In this respect the evidence was collected by the Investigating Officer on 5.5.1995. These are the affidavits of Noor Muhammad, Taj Muhammad, Muhammad Anwar Shah, Muhammad Shah, Muhammad Ahmad Shah and Muhammad Sarwar Shah which are all dated 3.5.1995. In all these affidavits the absence of Hussain Ahmad Shah alias Madni Shah petitioner-accused from the place of occurrence at the time of occurrence has been sworn in. During the investigation the attempts were made by the Investigating Officer to settle the matter on the Oath of Holy Quran in a mosque. The complainant party did not take part in such an affair. However, some persons stated for this accused before the Investigating Officer who gave the weight to the same. The Investigating Officer and the DSP/SDPO on the basis of the affidavits and the statements of the respectables on Holy Quran declared Hussain Ahmad Shah alias Madni Shah as innocent. Muhammad Ahmad Shah PW also submitted the affidavit before the Court of Session exonerating Hussain Ahmad Shah alias Madni Shah petitioneraccused. Learned Sessions Judge, Bahawalnagr dismissed the bail application of this petitioner who has filed this petition to try his luck to be admitted to bail. 2. I have heard the learned counsel for the petitioner as well as learned State counsel and gone through the record before me. Learned counsel for the petitioner has raised the following points to ornament his arguments for the purpose of admission of Hussain Ahmad Shah alias Madni Shah petitioner-accused to bail:- (i) That there is conflict between the ocular accounts and the medical evidence because according to the eye-witnesses Hussain Ahmad Shah alias Madni Shah petitioner-accused fired with his rifle which hit the right side of the head of Ghulam Rasool deceased while in the post-mortem report the medical witness has mentioned injury No. 1 on the head as "Shajjah-e-Khafifah" caused by blunt weapon. (ii) That Hussain Ahmad Shah alias Madni Shah petitioneraccused has been declared as innocent in view of the affidavits submitted by Noor Muhammad, Taj Muhammad, Muhammad Anwar Shah, Muhammad Shah, Muhammad Ahmad Shah and Muhammad Sarwar Shah which have made out that he was not present at the place of occurrence at the time of occurrence. (iii) That the respectables of the area on the Holy Quran testified about the innocence of this petitioner. (iv) That Muhammad Ahmad Shah PW has sworn in his affidavit about the innocence of Hussain Ahmad Shah alias Madni Shah which fact is mentioned in the order dated 19.7.1995 passed by the Sessions Judge, Bahawalnagar. 3. On the contrary learned State counsel argued that it is not the stage to examine the contradiction highlighted by the learned counsel for the petitioner in the ocular evidence and the medical evidence. He added that there is no provision in the Criminal Procedure Code to settle the matter on the oath of Holy Quran and that also by the strangers to the case and that the affidavits of different persons submitted on 5.5.1985 which were got attested on 3.5.1995 by different persons who appeared in defence have no legal force because such type of evidence should have been produced at the earliest stage which could be coined afterwards. According to him the statements of Mst. Ghulam Jannat complainant and Khadim Hussain PWs have been corroborated by the medical evidence and the recovery of rifle at the instance of Hussain Ahmad Shah alias Madni Shah petitioner-accused and thus he isprima facie liable under section 302/34 PPC which falls under the prohibitory clause and is not entitled to be admitted to bail. 4. After making an analysis and dissection of the arguments addressed by the learned counsel for the parties and going through the record before me I am of the view that Hussain Ahmad Shah alias Madni Shah petitioner-accused is not entitled to be admitted to bail. No doubt learned counsel for the petitioner has tried to highlight the contradiction in the ocular evidence and the medical evidence but it is not the stage to examine this aspect of the matter as it touches the merits of the case. Further the Medical Officer seems to have given the intentional concession by expressing that injury No. 1 on the head was "Shajjah-e-Khafifah" caused by blunt weapon. In para No. VI (Remarks by Medical Officer) this opinion has been expressed in a new line after closing the upper portion. I am tempted to express that with respect to an injury on the deceased the Medical Officer could not give his opinion that the injury was Shajjah-e- Khafifah especially when the seat of injury was the skull/head. About this aspect as well as the weapon said to have been used the matter can properly be appreciated during the trial and I do not give weight to this assertion raised by the learned counsel for the petitioner-accused. 5. The affidavits sworn in on 3.5.1995 by different witnesses and submitted on 5.5.1995 before the Investigating Officer in favour of Hussain Ahmad Shah a//as Madni Shah petitioner-accused about his plea of alibi cannot be given the weight in view of the fact that the occurrence is dated 30.1.1995. This petitioner is named in the FIR and he must be hiding hither and thither. In between his nears and dears must be contacting the Investigating Officer. The defence plea has also to be taken up at the earliest and belated stand in the matter can be termed to be self-created and after thought. A statement recorded under section 161 Cr.P.C. in favour of the prosecution with a delay of 48 hours after the occurrence becomes doubtful and is out of consideration being the outcome of deliberations. In this regard suffice is to refer to Budho vs. The State (PLD 1965 (W.P.) Karachi 76). Keeping in view the shape of scale of justice the affidavits of different witnesses submitted in defence of Hussain Ahamd Shah alias Madni petitioner-accused on 5.5.1995 which were got sworn in on 3.5.1995 can also not be given the weight as date of occurrence is 30.1.1995. It was a futile attempt on the part of the Investigating Officer to help this petitioneraccused. There is no provision in the Criminal Procedure Code to get settled such matters on the oath of Holy Quran of persons strangers to the case. The holding of such "Panchayats" even in mosques is devoid of any legal force. Such methods are adopted by the police to help the accused persons. If such a working is approved then what is the necessity of holding the investigation according to the provisions incorporated in Criminal Procedure Code. It has become a trend in the Police Department that the investigations are conducted by the Police Officers on personal whims and figment of brain of the concerned investigating Officer. If the weight is given to such a working there would be judicial anarchy resulting in administrative chaos whereby law and order situation would worsen. 6. No doubt Muhammad Ahmad Shah eye-witness mentioned in the FIR has exonerated the petitioner-accused Hussain Ahamd Shah alias Madni. However, the complainant Mst. Ghulam Jannat and Khadim Hussain (eye-witnesses) are still supporting the prosecution case and this aspect of the matter is of no help to the petitioner-accused. 7. The petitioner is an influential person who has been helped by the' police during the investigation. He became fugitive of law. His abscondence cannot be termed to be the outcome of his fear or his apprehension that he would be facing the coerciun at the hands of the police. This aspect of the matter is very important so far as the facts and ircumstances of this case are concerned. 8. In the FIR there is no dispute about the initial criminality of the assailants. The petitioners were known to Mst. Ghulam Jannat as well as Khadim Hussain PW. The investigation was almost complete within some days. The Investigating Officer lingered on the investigation on one pre-text or the other and particularly impressing upon the complainant to settle the matter through "Panchayat" (meeting of village elders) or through special oath on Holy Quran in the mosque and that also from the strangers to the case. The investigation is conducted to collect the evidence to be produced during the trial and working of the Investigating Officer has to revolve around the known canons of law/rules which have to guide them. It shall not be out of place to refer to section 163 of the Qanoon-e-Shahadat, 1984 which for the purpose of convenience is reproduced as under:- "163. (1) When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath. (2) The Court may pass such order as to costs and other matters as it may deem it. (3) Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal cases." In criminal matters the acceptance or denial of the facts on oath during the trial and on the same reasoning during the investigation is not provided/allowed. Thus the opinion if any on the basis of the oath would be considered to be devoid of legal force. If the matters during the investigation are to be disposed of on oath then the texture of whole of the working in the matter becomes unnecessary as one Police Officer can perform such a duty even in the office of the Superintendent of Police of the District without visiting the post or collecting the evidence which is not the intention of law. If such type of working is approved there may not be chaos in the society with the passage of time. Hence in the instant case the working of the Police Officer(s) during the investigation is based on conjectural hypothesis which cannot be approved by giving the weight at this stage. However, the plea of alibi or the facts of attack and defence which are tried to be settled through the "Panchayat" or oath on Holy Quran may be canvassed and proved during the trial. At this stage I deem it proper to refer to the ruling published as Mst. Bashiran Bibi vs. Nisar Ahmad and others (PLD 1990 Supreme Court 83) wherein it has been enunciated that procedure of swearing on Holy Quran (oath proceedings) is not applicable in criminal proceeding in view of section 163 of the Qanoon-e-Shahadat, 1984. It has also been held in this ruling that the sanctity of the Holy Quran is such that it cannot be brought in oath and while disposing of the bail application it was not right/correct to countenance the procedure whereby one of the accused was permitted to take oath in a mosque with regard to guilt or innocence of himself and other accused persons and that approval of such a procedure would throw the entire administration of criminal justice into disarray due to prevalent moral standards. In the instant matter the oath on Holy Quran of the strangers has been given the weight I express my sentiments (view) that by adopting such a working the Investigating Officer(s) make the attempt to desecrate the Holy Quran who should refrain themselves therefrom lest the wrath of God may not fall. It is simply surprising that the senior officer of the rank of DSP/SDPO also affirmed the said working of the Investigating Officer. 9. I, accordingly, agree with the learned State Counsel that it is not a case for the admission of this petitioner to bail who is prima-facie liable under section 302/34 PPG which falls within the prohibitory clause. 10. In view of the aforesaid state of affairs, analysis of the matter and discussion; I see no merit in this petition and dismiss the same. (S.R.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1400 [Bahawalpur Bench] Present: muhammad naseem, J. ABDUL HAFEEZ-Petitioner versus STATE-Respondent Cr. Misc. No. 425/B of 1995, dismissed on 20.7.1995. Bail- —S. 497 Cr.P.C. read with S. 324/34 PPC--Bail--Grant of--Petitioner armed with "Khanjar" injured complainant and his brother-Injuries declared dangerous for life-'KTia/yar" recovered-Occurrence took place in street where complainant resides-Motor cycle used by assailant taken into possession from site of occurrence-Held: Prima facie involvement of accused under section 324 PPG is made out~It is proper to express that section 324 PPC falls within prohibitory clause-Petitioner is not entitled to be admitted to bail-Petition dismissed. [P. 1401] A Ch. Haroon Bashir, Advocate, for Petitioner. Mr. Javed Iqbal, Advocate, for State. Date of hearing: 24.7.1995. order A case under section 324 PPC is said to have been got recorded 4/5 months before 8.3.1995 against Abdul Hafeez petitioner-accused and others by Abdul Majeed complainant. Abdul Hafeez complainant-accused was annoyed thereof. On 8.3.1995 within the area of Chak No. 12/BC at 6.00 p.m. there was the noise of running of motor-cycles coming from the street Abdul Majeed was present in his house alongwith his brothers Gulzar Saleem and Tahir. He came out and saw that Abdul Hafeez petitioneraccused, Atique and Muhammad Hanif accused persons were driving the motor-cycles. They were asked in the matter when Abdul Hafeez uttered that they were in search of him (complainant). Abdul Hafeez brought out a "Khanjar" from his lion cloth and inflicted on the left arm-pit of Abdul Majeed. His alarm attracted Gulzar Saleerp and Abdul Hafeez hit his left arm-pit In the meanwhile Tahir also arrived who was injured with a "Khanjar" by Atique co-accused which hit his hand. Muhammad Javed and Muhammad Anwar PWs were attracted to the spot. The accused persons fled away issuing the threats and also left one motor-cycle. FIR No. 68 dated 8.3.1995 stands registered under section 324/34 PPG at Police Station Baghdad-ul-Jadid Bahawalpur. The Medical Officer examined Abdul Majeed, Tahir Pervez and Gulzar Saleem. The Medical Officer expressed about the injury of Abdul Majeed as "an incised perfusely bleeding wound 4 cm x 2 cm blind deep on the left lower chest on antero lateral aspect." The Medical Officer declared this injury as dangerous for life. He also examined Tahir Pervez and found one injury on his left index finger. He also found one injury below the left arm-pit of Gulzar Saleem. The bail application of Abdul Hafeez has been rejected by the lower Courts. Hence this petition with the same desire. 2. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The main contention of the learned counsel for the petitioner is that the petitioner has been involved for the second time in the present occurence due to animosity and that he did not take part in the occurrence. A perusal of the record produced by the prosecution has made me to hold a contrary view. As right expressed by the learned State counsel the FIR was promptly lodged. The occurrence took place when there could not be any dispute/mistake about the identification of the accused. There is the motive for the occurrence as well. Abdul Hafeez petitioner was armed with a "Khanjar" and the occurrence took place in the street wherein the house of Abdul Majeed complainant is situated. Abdul Hafeez petitioner-accused injured Abdul Majeed have been declared as dangerous for life by the medical witness. The Khanjar has been recovered at the instance of Abdul Hafeez accused on 15.3.1995 while he was on physical remand The motor-cycle was also taken into possession by the police on 9.3.1995 from the place of occurrence by the police as the occurrence took place at 6.00 p.m. on 8.3.1995. With the material before me the prima facie involvement of Abdul Hafeez petitioner under section 324 PPC is made out who alongwith his co-accused has also been charged by the trial Magistrate under section 324/34 PPC on 24.4.1995. It is proper to express that section 324 PPC falls within the prohibitoiy clause. Hence Abdul Hafeez petitioner is not entitled to be admitted to bail. 3. For what has been said above, I see no merit in this petition and dismiss the same. (S.R.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C (Karachi) 1402 Present: SYED DEEDAR HUSSAIN SHAH, J. Mrs. ALHAJA TAWAKAUTU ADEELA- -Appellant versus STATE-Respondent Spl. Criminal Jail Appeal No. 10/95, dismissed on 24.4.1996. Customs Act, 1969- —S. 156(l)(8)--Heroin~Recovery of-Conviction for-Challenge to--2330 grams of heroin powder recovered from personal baggage—Appellant pleaded guilty to charge framed hy trial Court, thus was convicted-After commission of crime any expression Of remorse is of no-concern-This crime can only be curtailed/curbed if proper sentences are awarded- Appellant being a female has already been dealt with leniently in awarding sentence and further leniency is not called for--Appeal dismissed. [P. 1404] A Appellant in person. Mr. M. Roshan Essani D.A.G. for State. Date of hearing: 24.4.1996. judgment Appellant being aggrieved and dissatisfied has filed this jail appeal against the judgment of the learned Special Judge (Customs & Taxation) Karachi in case No. 44/1995 whereby convicted the appellant to suffer R. I. for four years and to pay a fine of Rs. 40,000/- or in default of payment of fine the appellant shall undergo further R.I. for one year for the offence punishable under Section 156(1)(8) of the Customs Act The case of the prosecution is that on 10.2.1995 Preventive Officer Customs Zahoor Ahmed intercepted the appellant in the International dc; uture Hall, Jinnah Terminal, Quaid-e-Azam International Airport, Karachi. Appellant was bound to leave for Addis Ababa by flight No. EK-603. The Customs Officer in presence of two mashirs searched the baggage of the appellant and secured 130 packets made up of paper adhesive tapes which were stitched under the pockets and belts of 67 baby trousers. On examination of 130 packets those were found to contain 2330 grams heroin powder. The Customs Officer seized the heroin powder and arrested the appellant under a proper mashirnama. Appellant was served upon the notice under Section 171 of Customs Act. After lodging of the FIR and finalization of investigation charge sheet against the appellant was submitted in the Court of Special Judge (Customs and Taxation) Karachi. At the trial the Appellant submitted an application Ex. 2 wherein she had admitted the commission of offence and also requested that her case may be decided on the date of hearing. Accordingly charge under section 156(1) (8) of the Custom Act was framed against the Appellant to which she pleaded guilty and placed herself at the mercy of the trial Court. Appellant in the trial Court submitted that she is a poor lady and mother of four children and she herself is the only supporter of her family. In view of the plea of guilt the appellant was convicted as mentioned hereinabove. Appellant has been called for from jail and I have also heard her. She has requested that some leniency so for the sentence is concerned may be shown. Learned D.A.G. is of the opinion that trial Court has already shown leniency in awarding sentence to the appellant whereas 2330 grams of heroin powder has been recovered from the appellant. I would like to refer 1996 SCMR (The State through Deputy Attorney General vs. Muhammad Siddique) in which the Hon'able Supreme Court of Pakistan admitted the petition for leave to appeal with the following facts. Muhammad Siddique respondent was apprehended alongwith Zarclad Khan his co-accused on 5.5.1992 at 0800 hours while sumggling 85 K.gs. of contraband charas of foreign origin by Truck No. PRC-8726 and was therefore charged on 5.10.1992 for an offence punishable under sections 156(89) and 178 of the Customs Act (IV of 1969). Muhammad Siddique pleaded guilty to the charge and he was therefore convicted and was sentenced to undergo R.I. for three years and a fine of Rs. 1,00,000/- or in default to undergo further R.I. for three years. Co-accused did not plead guilty to the charge and was placed on trial. The learned trial Court after recording evidence of the prosecution witnesses and examining the accused convicted him also in the same terms. The two convicts challenged their convictions and sentences in the High Court separately whicn were heard and disposed of by a consolidated judgment recorded by the learned Chief Justice whereby the conviction of the respondent was maintained but the sentences of R.I. for three years was reduced to one and half year and likewise the fine was also reduced to Rs. 50.000/- whereas appeal of Zardad Khan co-accused of the respondent was accepted and his conviction and sentence was set aside. The State through Deputy Attorny General submitted the petition for leave to appeal referred hereinabove against the judgment of the learned Chief Justice of the Peshawar High Court whereby the sentence of R.I. for three years was reduced to one and a half year and the fine was also reduced to Rs. 50,000/- The observation of the Supreme Court while granting leave to appeal is as follows: "Mr. Saadat Hussain, learned Deputy Attorny General appearing on behalf of the State contends that merely because respondent No. 1 had pleaded guilty does not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed was of smuggling of huge quantity of 8500 k.gs. of contraband narcotics. He further urged that the learned Special Judge had already dealt with respondent No. 1 very leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught." I have considered the contentions of the appellant so also the learned D.A.G. I have also gone through the authority of the Hon'able Supreme Court. Drug trafficking now a days has been adopted as a trade by the foreigners as well as few Pakistani Nationals. This menace has created social problems for the society, country and for humanity as a whole. Drug traffickers in any case does not deserve leniency. Huge quantity of heroin powder has been recovered from the Appellant and at the time of commission of the offence she had not considered the consequences of the act for which she stands convicted. After the commission of the crime any expression of remorse is of no concern. This crime can only be curtailed/ curbed if proper sentence are awarded. She being a female has already been dealt with leniently in awarding sentence by the learned trial Court and further leniency is not called for. I am of the firm opinion the this appeal is without merit and consequently is dismissed. (M.A.A.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1405 [DB] Present: sardar muhammad raza AND jawaid nawaz khan gandapur, JJ. STATE through Advocate General, N.W.F.P.-Appellant versus HAZRAT ZAMAN and 3 others-Respondents. Criminal Appeal No. 20/95, dismissed in limine on 7.11.1995. (i) Burden of Proof- —In criminal cases burden of p wing its case rests entirely on prosecution-­ Prosecution is duty bound to prove case against accused beyond reasonable doubt and this duty does not change or vary in case in which no defence plea is taken by accused. [P. 1411] H 1971SCMR432re/: (ii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 417 read with Ss. 302/109/34 Pakistan Penal Code, 1860-Appeal against acquittal—Case hinges mainly on ocular testimony—Complainant deposing absolutely different version about motive before Court, making improvements in his court statement cannot be relied-From circumstances it can be inferred that PW. 11 was not present at scene of occurrence-Two disinterested/independent witnesses expressed their ignorance about involvement of respondents with commission of offence— A constable, very important/material witness, who allegedly was present on duty at scene of occurrence and who has chased and fired at running assailant was neither cited as witness nor produced-Non-production of this important witness has cast serious doubt about prosecution story-­ Weapons recovered not sent to expert for opinion has damaged prosecution case-From evidence of one A.S.I. and Investigating Officer in Court, it is dear that occurrence took place near police post, which is decidedly other than place of occurrence shown in site plan which also creates doubt-Held : Prosecution has miserably failed to establish its case-Appeal dismissed in limine. [Pp. 1408,1409,1410 & 1411] A, B, C, D, E, F, G, I Mr. Ejaz Ahmad Khan, Assistant Advocate General for Appellant Date of hearing: 7.11.1995. judgment Jawaid Nawaz Khan Gandapur, J.-Two real brothers, respondents No. 1 and 2, namely, Hazrat Zaman and Ali Zaman have been charged for having killed Hukam Khan S/O Mir Rabat Khan resident of Mohallah Sheikhanwala, Tehsil and District Tank, on 5.11.1989 at 8.15 a.m. by firing at him (deceased) with .12 bore shot gun (single barrel) and .12 bore pistol. Respondent No. 3 Guldar Ali, father of respondents No. 1 and 2, is charged for having hatched a conspiracy for the murder of Hukam Khan whereas respondent No. 4 Gul Abbas S/O Mirza Ali Khan has been charged to have raised a "lalkara" and at the relevant time had directed respondents No. 1 and 2 to kill the deceased. It may be mentioned that respondent No. 4 is that nephew of respondent No. 3 and a first cousin of respondents No. 1 and 2. 2. After completing the investigation a challan was submitted against the respondents-acquitted accused. They were summoned and charge sheeted by the Sessions Judge, on 8.6.1991 U/Ss. 302/109/34 P.P.C. All of them denied the charges levelled against them, professed innocence and claimed trial. In order to prove its case the prosecution examined as many as 12 witnesses. One of the witnesses F.C. Muhammad Ashraf (P.W. 3) was examined twica i.e., as P.W. 7. 3. Stated briefly, the prosecution case, as disclosed at the trial, is that on the day of occurrence at about 8 a.m. complainant Abdul Qayum (P.W. 10) was proceeding to his school. When he reached near the shop of one Qasim Khan, his uncle Gul Shahzad (P.W. 11), met him and accompanied him. It was at that time that the deceased (the father of the omplainant) crossed them as he was going towards his home. It has been alleged by the prosecution that the deceased, at the relevant time, was being ollowed by respondents No. 1, 2 and 4 when all of a sudden respondent No. 4 (Gul Abbas) raised a "lalkara" and shouted at respondents No. 1 and 2 to fire upon the deceased. Respondent No. 1, Hazrat Zaman, armed with a .12 bore shot gun (S.B) and respondent No. 2, Ali Zaman; armed with a .12 bore pistol fired, one shot each, at the deceased. The deceased was hit atid fell to the ground. All the three respondents (No. 1, 2 and 4), mentioned above, then decamped from the scene of occurrence. 4. The complainant (P.W 10) and Gul Shahzad (P.W. 11) attended the deceased (then injured) and put him in a datsun, which was readily available in the bazar, and rushed him to the hospital. However when they reached the hospital the injured, Hukam Khan, succumbed to his injuries and died. Complainant Abdul Qayum (P.W. 10) accordingly reported the matter to Sub-Inspector/S.H.O. Mohabat Khan (P.W. 12) who reduced his report into writing in the form of a "Murasila" Ex. P.A/1 and sent the same to the Police Station, Tank for the registration of the case. On the basis of the "Murasila", F.I.R. No. 511 was registered U/Ss. 302/109/34 P.P.C. on the same day. PW. 12 then prepared the inquest report and the injury sheet and thereafter proceeded to arrest the accused. 5. According to the prosecution case the occurrence was witnessed by one F.C. Behram Khan (not cited as a P.W. or produced as such) who, in the first instance, had informed I.H.C. No. 198 Iqbal Hussain (P.W. 6) about the occurrence in question. The said P.W. 6 was present in the Police Station when he heard the report of fire shots as well as the hue and cry raised by the people and was thus attracted to the spot. F.C. Behram Khan informed P.W. 6 that some body had fired at Hukam Khan (deceased) who was injured and was taken to the hospital. Since the accused, who had allegedly fired on Hukam Khan, were running may from the scene of occurrence, therefore, P.W. 6 started chasing them alongwith F.C. Behram Khan (not produced). According to him it was F.C. Behram Khan who fired three shots in the air so as to scare the accused. When the accused as well as F.C. Behram Khan and P.W. 6 reached the lands of one Alif Shah, A.S.I. Akbar Shah (not produced) and Sub-Inspector Allah Bakhsh (P.W. 5) reached there alongwith the police personnel. Sub-Inspector/S.H.O. Mohabat Khan (P.W. 12) also, in the meantime, arrived at that place. The police party then encircled the accused and thus succeeded in arresting them. Respondent No. 1 Hazrat Zaman was armed with .12 bore shot gun (S.B.) whereas respondent No. 2 Ali Zaman was armed with .12 bore pistol. However, respondent No. 4 (Gul Abbas) had no weapon on his person. After having arrested the three accused, mentioned above, the police party went to the scene of occurrence. Two empties (Ex. PI) and one pellet (Ex. P2) were recovered from the scene of occurrence by the Investigating Officer (P.W. 12) vide recovery memo. Ex. P.D. Similarly vide recovery memo. Ex. P.R./1, the 1.0. took into possession the blood stained earth from the scene of occurrence. The site plan, Ex. P.B., was also prepared by the I.O. (P.W. 12) at the instance of complainant Abdul Qayum (P.W. 10). It may be mentioned hat respondents No. 1, 2 and 4 were arrested on 5.11.1989 wherdas respondent No. 3 (father of respondents No. 1 and 2 and the uncle of respondent No. 4) was arrested on 6.11.1989. 6. It was on 6.11.1989 that the blood stained shirt and shalwar (Ex. P.E.) of deceased Hukam Khan was sent to the Forensic Science Laboratory, Peshawar for chemical analysis. The report of the expert, in this behalf, is in the positive. 7. The autopsy, on the dead body of the deceased, was conducted by Dr. Misal Khan (P.W. 4) who prepared Post-mortem report (Ex. P.M.) alongwith pictorial. According to him the death was caused because of the injuries to the vital organs like right lung, liver, internal and external bleeding, leading to shock and subsequently death. The doctor opined that the injures, which caused the death of the deceased, were inflicted by fire­ arm. 8. After completing the investigation the challan was submitted in the Sessions Court, through the Assistant Commissioner, Tank for trial. 9. The Sessions Judge after framing the charge, recording the prosecution evidence, consisting of as many as 12 P.Ws. and recording the statements of accused U/S. 342 Cr.P.C. as well as U/S. 340(2) Cr.P.C. came to the following ccnclusion:- "The crux of my foregoing discussion is that the prosecution's case is full of doubts, lacunas, loop holes, conjectures and surmises and the benefit of doubt must go to the accused. Accordingly be extending the benefit of doubt to the accused, I acquit them of the charges levelled against them. They being on bail, their bail bonds shall stand discharged. Case property be kept intact till the expiry of period of appeal/revision." 10. The complainant, Abdul Qayum, it may be stated here, has not filed any appeal U/S. 417 (2-A) Cr.P.C., as amended, to challenge the legality/validity of the judgment/order dated 18.10.1994 of the Sessions Judge vide: which he has acquitted all the accused-respondents. One the other hand, the State has filed the appeal in hand U/S. 417 Cr.P.C. and has challenged the legality and vires of the judgment/order of the Sessions Judge on the grounds that the same was contrary to law, facts and material on ecord and therefore, not sustainable in the eye of law. 11. We have hear Mr. Ejaz Ahmad Khan, Assistant Advocate General, D.I. Khan for the State and have had the advantage of going through the record of the case with some degree of care. 12. It may be stated at the very outset that the fate of the present case hinges mainly on iiu; occular testimony of complainant Abdul Qayum (P.W. 10), son of the debased, and Gul Shahzad (P.W. 11) brother of the deceased. Since both of diem are closely related to the deceased, therefore, their testimony has to be subjected to dose examination and critical analysis. 13. The complainant, Abdul Qayum (P.W. 10), to our mind, is not a truthful witness because while lodging the report at the Hospital he had stated before the I.O. that one Gul Zaman alias Bahaduri the son of respondent No. 3 and the brother of respondents No. 1 and 2, used to work with Gul Shahzad (P.W. 11) in the shop of Wali Muhammad goldsmith ¾ years back, at Tank. That Gul Zaman, being a drug edict, had taken some poisonous material as a result of which he died. That the accused, accordingly, suspected that it was Gul Shahzad (P.W. 11) who had poisoned their son/brother to death. In other words, the complainant had stated in crystal clear words, before the I.O., that the accused party suspected Gul Shahzad (P.W. 11) for having killed their son/brother Gul Zaman alias Bahaduri). The report of the complainant (P.W. 10) was recorded and duly reduced into writing in the form of murassila (Ex. P.A/1) on the basis of which, the F.I.R. (Ex. P.A.) was registered in Police Station, Tank, Tehsil Tank, District Tank U/Ss. 302/149/34 P.P.C. 14. It may however be noted that when the complainant was examined on oath in the court as P.W. 10, he gave an absolutely different version in respect of the motive for the commission of the offence. He stated that the accused party suspected his father (Hukam Khan deceased) to have poisoned Gul Zaman alias Bahaduri. It appears to us that the complainant (Abdul Qayum) has made improvements in his court statement and thus no eliance can be placed on his testimony. 15. We have also noted that at the time of occurrence the complainant, Abdul Qayum (PW-10) was about 14/15 years of age whereas his uncle, Gul Shahzad (P.W. 11), was an adult. If Gul Shahzad (P.W. 11) was present at the time of occurrence, as has been alleged, and had attended the deceased when he was injured and had removed him to the hospital and thereafter gone to the scene of occurrence with the I.O. then in that case what prompted him not to lodge the report against the respondents with the police at the hospital in the first instance instead of the complainant who was admittedly a minor boy at that time. The only inference, in our opinion, which can be drawn is that he (P.W. 11) was not at all present on the scene of occurrence and that he had not seen the occurrence. 16. The disinterested/independent witnesses, Abdur Rauf (P.W. 8) and Muhammad Ayub (P.W. 9), were produced by the prosecution in an effort to establish the prosecution case. However, it may be noted, that when these alleged eye witnesses were examined as P.W. 8 and P.W. 9 respectively, they expressed their ignorance about the involvement of the espondents with the commission of the offence with which they are charged. 17. Last but not the least, I.H.C. No. 198 Iqbal Hussain (P.W. 6) deposed before the trial Court that at the time of the occurrence he was present in the Police Station, at about 8 a.m., on the fateful day, when he heard the report of the fire shots as well as the hue and cry raised by the people and therefore rushed towards the scene of occurrence when constable Behram Khan (not produced as P.W), who was on duty at that time, informed him that some body had fired at Hukam Khan and that the accused were trying to decamp from the scene of occurrence. He further stated that on the basis of the said information he, alongwith the said F.C. Behram Khan, chased the accused who were running towards street No. 3. They therefore followed them. According to him it was F.C. Behram Khan who had also opened aerial firing and had fired three shots, that when they had reached the lands of one Alif Shah, while chasing the accused, A.S.I. Akbar Shah and A.S.I. Allah Bakhsh (P.W. 5), alongwith police party, arrived there. He further stated that immediately thereafter Sub-Inspector Mohabat Khan (P.W. 12) also reached the spot. Respondents No. 1, 2 and 4 were accordingly encircled by the police party and were arrested. That a .12 bore shot gun (S.B.) was recovered from the possession of respondent No. 1 (Hazrat Zaman) whereas a .12 bore pistol was recovered from the possession of respondent No. 2 (Ali Zaman). Respondent No. 4 (Gul Abbas) was however, found empty handed. We are at a loss as to why F.C. Behram, who, in the circumstances of the present case, was a very important/material witness, as he was allegedly present on duty at the scene of occurrence, was not produced to support the prosecution version. It is really strange that he was not even cited as a prosecution witness in the calendar/challan. The non-production of this important witness has cast serious doubts about the ruthfulness of the prosecution story, especially with regard to the chasing/arrest of respondents No. 1, 2 and 4 and the recovery of the weapons from their possession. 18. There is yet another aspect of the case and that is that the I.O. had not sent the empties, allegedly recovered from the scene of occurrence, and the weapons used which were recovered from respondents No. 1 and, 2, to the Arms expert so as to determine as to whether or not the shots were irifact fired from the .12 bore shot gun/.12 bore pistol allegedly recovered from the possession of respondents No. 1 and 2. This act of omission or commission on the part of the I.O. (P.W. 12) has further damaged the prosecution case. No explanation, whatsoever, has been furnished by the prosecution in this respect. 19. A close scrutiny of the prosecution evidence, especially that of A.S.I. Allah Bakhsh (P.W. 5) and the Sub-Inspector Mohabat Khan (P.W 12), has, to our mind, created uncertainty with regard to the place where the ccurrence had taken place. A.S.I. Allah Bakhsh (P.W. 5) when examined stated before the trial Court that he had received a telephonic message from the Police Station, Tank to the following effect: - "A murder has been committed near the Chowki and that the accused had decamped from the spot and therefore, we were directed to arrange a nakabandi." 20. This contention of P.W. 5 is fully corroborated by the evidence of Sub-Inspector Mohabat Khan (P.W. 12) who, while in the witness box, deposed as under: - "I got the information that a murder has been committed near the police post and the accused have decamped and the injured has been taken to the hospital." 21. From the above deposition of the two P.Ws. it is clear that the occurrence took place near the Police Post (Chowki) City, Tank. This place is decidedly other than the place of occurrence as has been shown in the site plan (Ex. P. B. ), prepared by I.O. (P.W. 12) at the instance of complainant (P.W. 10). This fact, too, has created some doubt in the credibility of the prosecution story. 22. Needless to mention that in criminal case the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. It was held in Hakim Ali and others vs. The State reported as 1971 Supreme Court (M.R.) 432 that, in criminal trial, the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence. 23. Accordingly we are of the considered view that the prosecution has miserably failed to establish its case against the respondents-accused beyond reasonable doubt and that the respondents were rightly acquitted by the trial court. The State appeal does not merit consideration and is dismissed in limine. (MAA) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1411 [DB] Present: rao naeem hashim khan and arif iqbal hussain bhatti, JJ. BASHIR and others-Appellants versus STATE-Respondent. Criminal Appeal No. 3 of 1994, accepted on 4.12.1995. (i) Judges and their Obligations-- -—Judges are particularly accountable to their conscience and more than this to Almighty Allah-It must be in mind of all judges that sovereignity over entire universe belongs to Almighty Allah alone and authority which is being exercised by them is a sacred trust and it should be exercised within prescribed limits by Him~A crime free society can only be set up if every,citizen, irrespective of his colour, creed, religion and status, is provided justice and in this respect Court can play a vital major role-Application of independent judicious mind does not mean that the Courts shall award conviction to innocent persons and acquit real culprits according to its own wills and whims rather it means to give anxious thought and consideration to evidence in order to un-earth the truth. [Pp. 1415 & 1416] F (ii) Suppression of Terrorist Activities Act (Special Courts) Act 1975-- —-S. 7 read with S. 436 of Pakistan Penal Code, 1860-Conviction/Sentence- -Challenge to—Case mainly hinges upon ocular account—Prosecution witnesses are interested, closely related inter se and inimical towards appellant due to long standing litigation-There are material contradictions in their statements-Recovered articles not kept in sealed parcel losing its credibility and became doubtful-No independent corroborative or incriminating evidence on file against appellant— Recording of statements of prosecution witnesses, after 10 days, of occurrence, under Section 161 Cr.P.C. lost their credibility-There is considerable delay in lodging FIR without any reasonable explanation- Two co-accused, who were attributed active role in occurrence already acquitted by trial Court on same evidence which was not challenged— Held: Prosecution has failed to establish its case beyond any reasonable doubt-Appeal accepted. [P. 1414, 1415 & 1416] A, B, C, D, E & G Ghaus Muhammad Chaudhry, Advocate for Appellants. Khadim Hussain Bhatti, Advocate for State. Date of hearing: 4.12.1995. Judgment Rao Naeem Hashim Khan, J.--Bashir (42), Said (70), Kazim (26), Sajwara (3), Khawar Shah (25) and Gias Shah (22) faced the trial in a criminal case registered against them vide FIR No. 179/92 dated 30.4.1992 at Police Station Hujra Shah Moqeem under sections 436/398/149 PPC. The Judge, Special Court No. 3 of Suppression of Terrorists Activities, Lahore Division, Lahore, vide judgment dated 22.12.1993 acquitted Khawar Shah and Ghias Shah giving them the benefit of doubt, while convicted Basbir, Said, Kazim and Sajwara under section 436 PPC and sentenced them to 5 years R.I. each, and fine of Rs. 10,000/- each under section 436 PPC, in default of fine thereof to undergo further one year. In case of realisation of fine half of it shall be defrayed to the complainant as a compensation under section 544-A Cr.P.C. The convicts have appealed through criminal appeal, in hand. 2. The prosecution story in brief as disclosed in FIR (Ex. PA) lodged by Karamat Ullah (PW 2) was to the effect that on 27.4.92 while he alongwith his sons Muhammad Amjad and Ajmal Ali and his brothers namely, Ghulam Haider and Shaukat was sleeping in the 'Dhari' with their cattle. At about Fajr prayers time, he woke up on hearing the noise of a tractor trolley and saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused standing there. Kazim was armed with a gun, Sajwara was empty handed and remaining accused were armed with rifles. They started firing. The complainant and his companions took shelter in a water-course nearby. Ghias Shah accused picked out a gallon of petrol from his car and sprinkled it at the 'Chappar' at his dhari. Khawar Shah accused set the Chappar/house on fire through a match-stick. The accused then started pulling out the 'toka' gear machine. Kazim accused brought out the tractortrolley near the gear-machine and placed it at the trolley. The accused also removed his 3 ploughs, Kazim, Sajwara and Bashir accused, took his bicycle, two he goats by loading these in the tractor trolley and went away. According to the complainant, the burnt property was valued at Rs. 5,000/-. The motive for the occurrence, was the dispute regarding agricultural land pending in the Court for the last 18 years between the complainant and the appellants Said and Bashir who wanted to take forcible possession of the land. 3. The occurrence took placed on 27.4.92 at Fajr-wela in the area of Sher Garh, 9 kilo-meters from Police Station Hujra Shah Moqeem. FIR (Ex. PA) was lodged by Karamat Ullah (PW. 2) on 30.4.92 at 9.30 p.m., recorded by Muhammad Murtaza H.C. (Additional Moharrir, P.W 1). 4. Muhammad Aslam ASI (PW 8) on 30.4.92 went to the spot and prepared site plan of the occurrence (Ex. PC). He took into possession one tin (Pi) and few pieces of wood (P2/1-8) vide recoveiy memo (Ex. PD). He also recorded the statements of Karamat Ullah (PW 2) and Muhammad Iqbal (PW not produced) pertaining to the aforementioned recovery, under section 161 Cr.P.C. Thereafter the investigation was entrusted to Muhammad Ashraf Inspector (PW 5) who recorded the statements of Ajmal, Amjad Ali, Shaukat Ali and Ghulam Haider P.Ws under section 161 Cr.P.C. on 10.5.92. He also arrested Said and Bashir appellants on 14.5.92. Khan Muhammad Cheema, SI also conducted the investigation of the case, submitted challan against Said and Bashir on 21.6.92 and obtained warrants of arrest against the remaining accused and entrusted the same for execution to Muhammad Ashiq ASI (PW 4). Muhammad Ashiq ASI (PW 4) arrested Sajwara on 29.6.92. Khan Muhammad Cheema SI (PW 9) arrested Kazim on 3.7.92, Khawar Shah and Ghias Shah on 8.7.92, and after completion of investigation submitted the complete challan in the Court on 11.7.92. 5. The ocular account was furnished by Karamat Ullah complainant; (PW 2), Muhammad Ajmal (PW 3) and Shaukat Ali <TW 7). 6. At the conclusion of prosecution evidei.ee the appellants (Sajwara, Kazim, Said and Bashir Ahmad) were examined without oath. They refuted the prosecution allegation and pleaded innocence. However, they did not appear in their defence under section 340(2) Cr.P.C. but produced DW 1 Gulzar Sibtain, Muhammad Younas DW 2 and Muhammad Hanif DW 3 in their defence during the trial. 7. It is submitted by the learned counsel for the appellants that Karamat Ullah, Muhammad Ajmal and Shaukat Ali P.Ws are closely related inter-se, interested witnesses and inimical towards the appellants and therefor their evidence is not reliable; that there are material contradictions in the statements of the P.Ws; that there is a considerable delay in the lodging the FIR in this case without any reasonable explanation; that the parties were involved in litigation for about 18 years and ultimately the accused persons were declared to be entitled for the allotment of land; that the investigation of the case was partial, biased and unfair; that there is no evidence brought on the record by prosecution that the articles alleged to have been taken away by the accused were recovered during the investigation of the case; that the P.Ws have made false and fabricated statements. In fact no such occurrence has ever taken place and that the appellants are innocent; that the prosecution has miserably failed to prove its case against the appellants beyond any reasonable doubt, hence they deserve acquittal. 8. The contentions are opposed by the learned counsel for the State. 9. We have heard the learned counsel and gone through the records. The prosecution in order to establish its case, has mainly relied upon ocular account furnished by Karamat Ullah (PW. 2), Muhammad Ajmal (PW 3) and Shaukat Ali (P.W. 7). All of them had given detailed account of occurrence ascribing specific role to the appellants. Each of them stated that they saw Ghias Shah, Khawar Shah, Kazim, Sajwara, Said and Bashir accused were standing on the ground Kazim armed with his gun, Sajwara was empty handed and the remaining accused were armed with rifles. They started firing. We ran and took shelter in a water-course nearby. At a distance of one killa, Ghias Shah accused picked out a gallon from the car. The accused had also brought the car near the Dhari. He entered the house by opening the window and sprinkled the petrol at the Chhappar/Dharri. Khawar Shah set the Chappar on fire through a match-stick. The accused thereafter started pulling out the gear-machine. Ghias Shah accused fired a shot with rifle at Karamat Ullah (P.W. 2) complainant, Kazim accused brought the tractor near the gear-machine and they placed the gear-machine at the trolley. The accused also removed 3 ploughs and placed these in the same trolley. Kazim, Sajwara and Bashir accused took two he-goats, one bicycle and loaded the same on tractor-trolley and went away. The prosecution witnesses are interested, being closely related interse and inimical towards the accused/appellants due to long standing litigation. There are material contradictions in the statements of the P.Ws. The recoveries (Pl/1-10) and (P2/1-8) burnt pieces of wood, not being kept in sealed parcel, therefore it lost its credibility and became doubtful. There is no independent corroborative or incriminating evidence available on the file against the appellants. Recording of statements of P.Ws (Ajmal, Amjad, Shaukat Ali and Ghulam Haider) after 10 days of the alleged occurrence I under section 161 Cr.P.C. also lost the credibility. ' Muhammad Aslam ASI P.W. 8 states in his cross-examination which is reproduced as under:- "It is correct that on 28.4.92 Karamat Ullah PW submitted a written complaint to me that the accused party intended to take possession of land from him and that on the basis of complaint mentioned above I proceeded against Karamat •Ullah and accused party under section 107/151 Cr.P.C. It is also correct that I submitted complaint (Kalandara) against both the parties under sections 107/151 Cr.P.C. and sent the same to the Illaqa Magistrate. It is correct that Said and Bashir accused were apprehended by me in the security proceedings on 28.4.1992 and they were produced before the Court on 29.4.92." FIR Ex. PA lodged by Karamat Ullah PW disclosed the commission of offence on 27.4.92 at Fajr-wela, recorded by Muhammad Murtaza H.C/Additional Moharrir on 30.4.92 at 9.30 p.m. If there had been such occurrence, why this was not reported by Karamat Ullah PW 2 (complainant) at the time of submitting application on 28.4.92 for fomenting or initiating proceedings under sections 107/151 Cr.P.C. against the appellants (Bashir and Said). Definitely this plan was hatched just after the bailing out of Bashir and Said under section 107/151 Cr.P.C. from the Court on 29.4.92. The manner in which the evidence was given does not inspite confidence. It appears that complainant (PW 2) after loosing the case up to the Honourable Supreme Court of Pakistan pertaining the land in question, became desperate and involved the appellants in the false case. The prosecution has failed to establish the case against the appellant beyond any reasonable doubt, it can safely be held that no such occurrence had taken place. Khawar Shah and Ghias Shah inspite of the fact that they were attributed actives role in the occurrence but were acquitted by the trial Court on the same evidence. State even did not bother to file an appeal against their acquittal. It appears that there was some master-mind behind the scene who manoeuvred the involvement of the accused persons nominated in the FIR on account of reasons best known to him. 10. Now the question arises that appellants are languished in jail since their arrest, who is responsible or accountable for their incarceration? Although it is not our job to question this proposition at this stage but we must say that Judges are particularly accountable to their conscious and more than this to the Almighty Allah. It must be in the mind of all the Judges that sovereignty over the entire universe belongs to Almighty Allah alone and the authority which is being exercised by them is a sacred trust and it should be exercised within the limits prescribed by Him. A crime free society can only be set up if every citizen irrespective of his colour, creed, religion and status, is provided justice and in this respect the Courts can play a vital and major role. Application of independent judicious mind does not mean that the Courts shall award conviction to innocent persons and acquit the real culprits according to its own wills and whims rather it means to give anxious thought and consideration to the evidence in order to unearth the truth. 11. Keeping in view the panoply of above facts and evidence, we hereby accept the appeal, set aside the conviction and acquit the appellants from the charges against them. Bashir, Kazim and Sajwara shall be released forthwith, if not required in any other case. Said appellant is on bail, his surety bonds shall stand discharged. 12. The above are the detailed reasons in continuation of our short order passed on 4.12.1995. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C (Lahore) 1416 [Bahawalpur Bench] Present: MUHAMMAD NASEEM J. ALLAH BAKHSH-Petitioner versus STATE-Respondent Criminal Misc. No. 447/B-1995, dismissed on 18.7.1995. (i) Bail-- —S. 497/498 Cr.P.C. read with Ss. 302/148/149 of Pakistan Penal Code, 1860--Bail~Grant of--Prayer for--0ccurrence taking place at 5.30 pra. on 7.3.1995-No darkness at that time-Eye-witnesses were accompanying deceased-Petitioner named in F.I.R. and specific role attributed to him— Agitation about innocence of accused is no ground to declare that he is innocent-Opinion of Investigating Officers based on their whims and figment of brain has to be discarded-Contention that petitioner alleged to have fired with rifle but no bullet was recovered by Medical Officer during Post-mortem, but 4 pellets were recovered-Deeper merits of the case cannot be analysed at bail stage-Involvement of accuseu in occurrence prima facie proved-Case falls under prohibitory clause—Bail refused. [P. 1419] D, E & F 19S8 SCMR 1452 ref. (ii) Criminal Procedure Code, 1898 (Act V of 1898)- —S. 161--Pakistan Penal Code 1860--Ss. 302/148/149--Recording of Statements of PWs.-After recording of the statements of complainant and Eye-witness there was neither any need nor justification to record their statements again in question and answer form—Such a practice is disapproved-Second round of recording of statements of complainant and eye-witnesses by Investigating Officer shows that as if he was himself holding trial, which definitely is not his jurisdiction and formation. [Pp. 1418 & 1419] A & B (iii) Criminal Trial-- -—There is no provision in Code of Criminal Procedure that a person would be declared a accused or be'would be considered as an innocent in case adverse party would not state on special oath. [P. 1419] C Sardar Ahmad Khan, Advocate for Petitioner-accused. Muhammad Afzal Cheema, Advocate for State Date of hearing: 18-7-1995. order Sajwar Khan complainant got recorded FIR No. 88 dated 7-3-1995 at P.S. Hasilpur, District Bahawalpur under sections 302/148/149 PPC about an occurrence which took place on 7-3-1995 at 5.30 P.M. within the area of Police-Station Hasilpur, District Bahwalpur. According to the complainant, his son Falak Sher (deceased of this case) had obtained on. lease some landed property wherein he had sown the wheat. On 7-3-1995 his sons Falak Sher and Zahoor Ahmad and his nephew Irshad Ahmad set at work the tubewell. They closed the tubewell at 5.00 P.M. They reached Basti Kalsan. They were surprised by Allha Bakhsh petitioner-accused armed with rifle, Muhammad Yar accused armed with gun, Muhammad Amin accused armed with gun, Mumtaz and Raiz accused each armed with Sofa. They threw the challenge. Allah Bakhsh, Muhammad Amin and Muhammad Yar fired upon thorn with their respective weapon which hit Falak Sher who fell down. Zahoor Ahmad and Irshad Ahmad P.Ws. went to the nearby 'Khal' whereby they were saved. Falak Sher died at the spot. Due to the firing and the alarm raised by him and his companions Riaz as well as Allah Ditta arrived at the spot. The accused persons filed away alongwith their respective weapon. The cause of occurrence is stated to be that Allah Bakhsh petitioner-accused suspected illicit relations of Falak Sher deceased with his sister Mst. Roshan. 2. The initial investigation was conducted by Maqsood Ahmad Laghari SI Police-Station Hasilpur. From 25-3-1995 Jamaat Ali Bukhari Inspector/SHO Police-Station Hasilpur investigation the case. He joined many persons in the investigation who was informed that before the occurrence Falak Sher also fired with his 303 rifle and that Muhammad Amin co-accused fired at Falak Sher who expired. He examined Sajwar Khan complainant, Zahoor Ahmad and Irshad Ahmad eye-witnesses on 10-4-1995 for the second time. The method adopted by him was that he recorded the questions and answers. Afterwards expressing that the eye­witnesses were closely related, that the complainant was not willing to get settled the matter on special oath, that there were discrepancies in the statements of the complaint-and the eye-witnesses, and that Allah Bakhsh, Mumtaz and Riaz agitated their innocence; he declared Allah Bakhsh as well as Mumtaz and Riaz as innocent. His investigation was verified by the D.S.P./S.D.P.O. Hasilpur. Thereafter Allah Bakhsh, Mumtaz and Riaz have been placed in column No. 2 of the challan indictment submitted under section 173 Cr. P.C. and put them at the mercy of the court. 3. The bail application of Allah Bakhsh petitioner has been rejected by the lower court who has filed this petition to try his luck to be admitted to bail. 4. I have heard the learned counsel for the petitioner as well as the learned counsel for the State and gone through the record before me. Placing reliance on Muhammad Mumtaz and another versus The State (1988 S.C.M.R. 1452) learned counsel for Allah Bakhsh petitioner-accused argued that the Investigating Officers have declared Allah Bakhsh accused as innocent who has been placed in column No. 2 of the challan indictment and for that reason he is entitled to be admitted to bail. He laid the emphasis that Falak Sher himself was armed with a rifle who was notorious person of — ^- the area and lived at a distance of 15 miles from the place of occurrence and due to the firing effected by Falak Sher he was fired at by Muhammad Amin. On the contrary learned counsel for the State laid the emphasis that after recording the statements of the complainant and the eye-witnesses under section 161 Cr.P.C. there was not need on the pait of Jamaat Ah' Bukhari -> Inspector/SHO to damage the prosecution case by recording the statements of the complainant and the eye-witnesses in question and answer for which was a novel method adopted by him. He added that the inter se relationship of the P.Ws. and the deceased, the innocence canvassed by Allah Bakhsh, Mumtaz and Riaz and the non-settlement of the dispute through special oath cannot from the basis of the opinion. During the investigation about the innocence of the accused persons. No doubt it has been held in the aforesaid ruling published as 1988 S.C.M.R. 1452 that detailed comments on the police diaiy and on the working of the Investigating Officer cannot be made. In this regard I have to express that the circumstances of each case have to be kept in mind. After recording the statements of the complainant and the eye­ witnesses by Maqsood Ahmad SI there was neither any need nor justification to record their statements in question and answer form which was done intentionally to damage the case of the prosecution. Such practice needs to be disapproved during these days when law and order situation I worsening. It is during the trial that after racording the statement of the witness the cross-examination is conducted by the adverse party. The second round of recording of statements of the complainant and the eye-witnesses by Jamaat Ali Shah Inspector/SHO P.S. Hasilpur shows that as if he himself was holding the trial which definitely is not his jurisdiction and function. In this opinion he has not mentioned the discrepancies in the statements of the P.Ws. and has passed a general remarks thereof. There is not provision in the Criminal Procedure Code that a person would be declared as accused or he would be considered as an innocent in case the adverse party would not state on special oath. The mere relationship of the P.Ws. is not ground to establish the innocence of the accused. This is the job of the trial court before whom the weapon of cross-examination has also to be used by the adverse party. Without prejudice, in some cases the close relatives may be the reliable witnesses. The mere agitation made by Allah Bakhsh, Mumtaz and Riaz about their innocence is no ground to declare that they are innocent. Consequently I do not give the weight to the opinion of the Investigating Officers about the innocence of Allah Bakhsh petitioners-accused. The opinion based on their whims and figment of brain has to be discarded. 5. At this stage I agree with the learned counsel for the State that had Falak Sher been armed with rifle the sane would have been lying near his dead body especially when according to the accused party he lived at a distance of 15 miles from the place of occurrence. No rifle has been taken into possession and this aspect of the matter mentioned in the investigation need not be given the weight. 6. Learned counsel for the petitioner argued that Allah Bakhsh is alleged to have fired with rifle but no bullet was recovered by the Medical Officer during the post-mortem examination who recovered four pellets only and that there was no exist wound. Some bullets were taken into possession from the place of occurrence by the police on the first visit of the Investigating Officer. The deeper merits of the case cannot be analysed at this stage as rightly pointed out by the learned State counsel. 7. The occurrence took place at 5.30 P.M. on 7-3-1995. It could not be darkness at that time. The eye-witnesses were accompanying the deceased. Allah Bakhsh accused has been named in the FIR and specific role as been attributed to him. In the circumstances his involvement in the present occurrence prima facie stands proved and the offeiic^ of murder with which he is charged falls under the prohibitory clause who, as such, is not entitled to the grant of bail. 8. I, therefore, dismiss this application. (M.A.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.'C. (Lahore) 1420 [Multan Bench] Present: MUHAMMAD NASEEM, J. ARIF and 2 others-Petitioners versus STATE-Respondent Crl. Appeal No. '66 of 1986, accepted on 3.11.1995. Pakistan Penal Code, 1860 (Act XLV of 1860)-- —Offence U/S 302/307/34 P.P.C.-Conviction and sentence-Compromise between parties-All legal heirs of Haque Nawaz and Muhammad Rafique deceased persons are. major-Their Statements have been recorded on oath-They have forgiven all convicts in the name of Al- Mightly God-Forgiveness is divine qualification—Held: It is fit case where compromise should be recorded and accepted-Appeal accepted and convicts accordingly acquitted. [P. 1421] A &B. Mr. Khizar Hayat Khan Punian, Advocate for Appellants. Mehr Muhammad Saleem, Advocate for State. Mr..SardarMahboob, Advocate for Complainant. Date of hearing: 30.11.1995. judgment On the basis of registration of FIR No. 112 dated 19.4.1984 Abdur Rehman, Muhammad Farooq, Arif and Zahoor were tried by the Sessions Judge, Khanewal who were convicted. Each of Abdur Rehman and Muhammad Farooq were sentenced to imprisonment for life and fine of Rs. 1,000/- who were directed to pay Rs. 5.000/- as compensation to the heirs of Haque Nawaz and Muhammad Rafique deceased respectively. In default of payment of fine they were directed to further undergo R.I for a period of six months and in default of payment of compensation they were directed to undergo simple imprisonment for an other period of six months. However, both of them were acquitted of the charge from under section 307 PPC. 2. Arif convict was sentenced to R.I. for a period of three years and to fine of Rs. 2,000/- or in default of its payment to further undergo R.I. for a period of six months. He was directed to pay Rs. 1,000/- as compensation to Nazeer PW or in default of its payment to further undergo simple imprisonment for a period of six months under section 324 PPC. 3. Zahoor convict was sentenced to R.I. for a period of three years and to fine of Rs. 2,000/- or in default of its payment to further undergo R.I. for a period of three months. He was also directed to pay Rs. 1,000/- as compensation to Bashir and Nazeer PWs or in default of its payment to further undergo simple imprisonment for six months. 4. During the occurrence Haq Nawaz and his son Muhammad Rafique lost their lives. The murderous assault was made upon Bashir and Nazir PWs. The parties have compromised. The matter was referred to the Assistant Commissioner, Kabirwala, District Khanewal to deterriline all the heirs of both the deceased who obtained the report from the Tehsildar, Kabirwala and collected the evidence. He has reported vide his letter No. 1859 dated 23.11.1995 that following are the heirs of both the deceased namely Haque Nawaz and Muhammad Rafique : 1. Saeed Ahmed aged 50 years, 2. Allah Bakhsh aged 47 years, 3. Bashir Ahmad aged 43 years, 4. Nazir Ahmad aged 41 years, 5. Muhammad Nawaz aged 28 years, all sons of Haque Nawaz deceased and brothers of Muhammad Rafique deceased. 6. Mst. Zainib Bibi aged 44 years daughter of Haque Nawaz deceased and sister of Muhammad Rafique deceased. 7. Mst. Sharam Bibi aged 64 years widow of Haque Nawaz deceased and mother of Muhammad Rafique deceased, all Khandwa by caste, residents of Mauza Sher Garh, Tehsil Kabirwala, District Khanewal. 5. The parties have compromised. All the legal heirs of Haque Nawaz and Muhammad Rafique deceased persons are major. Their statements have been recorded on oath. The have forgiven all the convicts in the Name of the Al-Mighty God. Forgiveness is a divine qualification. I, therefore, hold that it is a fit case where the compromise should be recorded and accepted. 6. In view of what has been said above, I accept the compromise which stands initiated between the antagonist parties. All the heirs of both the deceased persons have forgiven all the convicts in the Name of the Almighty God. I, therefore, accept the application and consequently the appeal. I accordingly acquit all the convicts. 7. I am told that Arif convict-appellant has preferred this point appeal while Zahoor convict not file the appeal; but they have undergone their respective sentences. Both Abdur Rehman and Muhammad Farooq appellants-convicts are on bail. Both Abdur Rehman and Muhammad Farooq convicts-appellants are present in the Court on bail. Their bail bonds are cancelled and, sureties discharged. (B.T.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1422 [Multan Bench, Multan] Present: SAJJAD AHMAD SiPRA, J. ABDUL WAHID and 3 others-Appellants versus STATE-Respondent Crl. Appeal No. 113 of 1995, allowed on 26.6.1995. (i) Pakistan Penal Code, 1860 (Act, XLV of 1860)-- —S. 302/307/325/149--Murder and grievous hurt-Offence of--Conviction for-Challenge to-Delay in recording F.I.R. with police even Police Station in question was in vicinity of Khanewal Hospital, where injured were removed—PW5's (complainant) testimony can neither be relief upon to sustain conviction of appellants, nor can it be pressed into service to corroborate testimony of any other prosecution witness~PW6's (injured) testimony also suffers form very material discrepancies that raise serious doubt about incident in question having taken place in the manner claimed by prosecution witnesses-Testimoney of injured PW6 fails to advance case of prosecution in any manner or to succeed in corroborating evidence of any other prosecution witnesses including testimony of complainant PW.5~It is a fundamental principle of safe administration of criminal justice, that a case has to be proved against accused beyond reasonable doubt by prosecution on basis of evidence brought on record and burden thereof never shifts to any other person or party, even if accused take up any plea or pleas, whosoever inconsistent, contradictory or far fetched-Held : Prosecution has failed to discharge responsibility placed on its shoulders-Order accordingly. [Pp. 1428,1429] A,B,C,D & F (ii) Corroboration- —One tainted piece of evidence cannot corroborate another tainted piece of evidence. [P. 1429] E Sardar Faiz Muhammad Khosa, Advocate, for Appellants. Mirza Fayyaz, Advocate, for State. Mr. Khadim Nadim Malik, Advocate, for Complainant. Dates of hearing: 25 & 26.6.1995. ?.,' judgment The present criminal appeal has directed against the judgment dated 4.6.1985 whereby the learned Additional Sessions Judge, Multan, had convicted and sentenced the appellants as follows:- Abdul Wahid and Muhammad Hassan, appellants Nos. 1 and 2 under section 304 Part I P.P.C. to life imprisonment each and a fine of Rs. 3,000/- each, or in default thereof to undergo R.I. for 4 months each, with the further direction to pay Rs. 3,000/- each, to be paid as compensation to the legal heirs of the deceased, or in default thereof to suffer R.I. for 4 months each. Muhammad Zaki, appellant No. 3 under section 325 P.P.C. to undergo R.I. for 3 years and a fine of Rs. 2,000/-, or in default thereof to suffer R.I. for 3 months, with the further direction to pay Rs. 2.000/-, to be paid to Abdul Sattar, injured P.W., or in default thereof to further undergo R.I. for 3 months. Said, appellant No. 4 under section 323 P.P.C. was sentenced to pay a fine of Rs. l.OOO/- or in default thereof to further undergo R.I. for 2 months, with the further direction to pay Rs. 1,000/-, to be paid to injured P.W. Abdul Sattar as compensation, or in default thereof to suffer further R.I. for 2 months. Muhammad Zaki, appellant No. 3, was also extended the benefit of section 382-B Cr.P.C. Criminal Revision No. 176 of 1985 filed by the complainant against the acquittal of the appellants under sections 302/148/149 P.P.C. and directed to be heard alongwith the present criminal appeal, shall also be disposed of by this judgment. 2. The brief facts of the prosecution case, according to the F.I.R. Exh. PH lodged by the complainant Muhammad Rafique on 12.3.1984 at 10.15 P.M., are that on that day at about 12.00 noon he was cutting grass, while his cousin Abdul Sattar and a relative Shah Bahrain were irrigating their land from the tubewell, but as Mst. Barkat Bibi wife of Said had diverted water to her own wheat crop, an altercation took place in which abuses were exchanged and Mst. Barkat Bibi had left the spot after threatening Shah Bahram with dire consequences. At about 2.00 p.m. the appellants Abdul Waheed, Muhammad Hassan, Muhammad Zaki and Said alongwith their co-accused Sabir Ali, all armed with Lathies reached there. Sabir Ali, co-accused raised Lalkara that a lesson be taught for the insult of Mst. Barkat Bibi and the P.Ws be killed, whereupon Abdul Wahid give Lathi blow to Shah Bahram on his head followed by Muhammad Hassan with his Lathi which also landed on his head and he fell down on the ground. Said appellant gave a Lathi blow on the head of Abdul Sattar P.W., who also received another Lathi blow at the hands of Muhammad Zaki, appellant. The complainant and Ata Muhammad P.W. intervened to save the injured and the accused left the spot with their Lathies. The complainant alongwith Muhammad Yaqoob P.W. had taken the injured to the hospital and after obtaining medical certificates had got registered the case under sections 148/307/149 P.P.C., but on the death of Shah Bahram it was converted into one under sections 148/302/307/325/149 P.P.C. 3. Javaid Islam A.S.I., after recording the F.I.R. reached the hospital, recorded the statement of Abdul Sattar (P.W. 6) section 161 Cr.P.C. and went to the spot. Thereafter he reached Nishtar Hospital to record thestatement of Shah Bahram, but he was informed at the outer door by the father of Shah Bahram that he had succumbed to the injuries, so he prepared the injury statement and inquest report and despatched the dead body for post mortem examination. Muhammad Jaffar S.I. on 15.3.1984 had arrested all the accused, got recovered from them Lathies P. 3, P. 4, P. 5, P. 8 and P. 11 and after usual investigation challaned them to the Court. 4. At the trial, the prosecution had examined as many as eleven witnesses and tendered in evidence the report of Chemical Examiner Exh. PAA and that of Serologist Exh. PBB to prove its case, while giving up Ata Muhammad, Shah Rasool and Abdul Ghafoor P.Ws being unnecessary. 5. P.W. 1 Dr. Asghar Ali on 12.3.1984 had medically examined Shah Bahram deceased when he was in injured condition and found the following injuries on his person:- 1. A contused swelling 6 c.m. x 4 c.m. on the left side of head on temporal bone 1.5 c.m. above the left ear. 2. A lacerated wound 3. c.m. x 1 c.m. on the right side of front of head 3 c.m. above their hair line. Both the injuries were kept under observation.On the same day he medically examined Abdul Sattar injured P.W. and found the following injuries on his person:- 1. A lacerated wound 6 c.m x .5 c.m. scalp deep on the top of head, slightly on the right side 11 c.m. above the right ear. 2. An abrasion .25 c.m. x .25 c.m. on the middle of back of right index finger. This Doctor on 15.3.1984 had also medically examined Muhammad Zaki, Said and Sabir Ali accused and had found four, two and five injuries respectively on their persons. According to him, except for injury No. 4 caused to Sabir Ali accused, all the injuries on the persons of the above named three accused were simple in nature. 6. P.W. 8 Dr. Akbar Saeed on 13.3.1984 had conducted the postmortem examination on the dead body of Shah Bahrain and found the following injuries on it:- 1. A lacerated wound 3^ c.m. x 1/2 c.m. x scalp deep on the right side of the head 3 c.m. above the hair line and 2 c.m. away from the middle of skull with welling around 5 c.m. x 7 c.m. 2. A contused swelling 6 c.m. x 6 c.m. on the left side of head involving the frontal and parietal regions, 1.5 c.m. above the left ear. In his opinion death had occurred due to shock and intra cranial haemorrhage as a result of both the injuries, which were sufficient to cause death in the ordinary course of nature individually as well as collectively. Probable time between the injuries and death was assessed to be 12 to 18 hours and that between death and autopsy was about 12 hours. 7. P.W. 2 Manzoor Ali, Moharrir, had kept the sealed parcels containing bloodstained clothes of Sabir Ali, Muhammad Zaki and Said accused intact in Maalkhana till 23.3.1984, whereas P.W. 3 Dil Muhammad constable had transmitted the same to the office of Chemical Examiner on the said date. P.W. 4 Ah' Naqi constable had escorted the dead body of Shah Bahram to the mortuary and after the postmortem examination had handed over the papers and last worn clothes of the deceased to the Investigating Officer, which he had received from the Doctor. 8. P.W. 5 Muhammad Rafique complainant and P.W. 6 Abdul Sattar had supported the prosecution case by reiterating the contents of the F.I.R. and corroborating the statements of each other. P.W. 7 Muhammad Sadiqwas the recovery witness of Dangs P. 3, P. 4, P. 5, P. 8 and P. 11 vide memos Exhs. PJ, PK, PL, PN and PP recovered from Abdul Wahid Muhammad Hassan, Sabir Ali, Said and Muhammad Zaki accused respectively. This witness had also attested the recovery memos Exh. PM regarding bloodstained clothes P. 6 and P. 7 of Sabir Ali accused, Exh. PO in respect of bloodstained clothes P. 9 and P. 10 of Said accused and Exh. PQ regarding, bloodstained clothes P. 12 and P. 13 of Muhammad Zaki accused/appellant. 9. P.W. 9 Javed Islam ASI and P.W. 11 Muhammad Jaffar S.I/S.H.O. had partially investigated the instant case, whereas P.W. 10 Bashir Ahmad, Revenue Patwari had prepared the site plans of the place of occurrence Exhs. PR, PR/1 and PR/2. 10. The appellants in their statements recorded under the provisions of section 342 Cr.P.C. had denied the charge and claimed to be innocent. Abdul Wahid and Muhammad Hassan appellants had deposed that they were not present at the time and place of occurrence and that they were falsely involved in the instant case due to enmity. According to the appellants and their co-accused Sabir Ali, Shah Behram deceased had tried to outrage the modesty ofMst. Barkat Bibi wife of Said appellant, on whose alarm both the parties were attracted to the spot and a free fight took place, in which persons from both the partie were injured. Therefore, because of the death of Shah Behram they had been falsely involved in this case. The appellants produced in defence Dr. Zahida Khanum as D.W. 1 and Dr. Asghar Ali as D.W. 2 to support their plea of having received injuries by Mst. Barkat Bibi and Sabir Ali, co-accused. The appellants also appeared as their own witnesses under section 340(2) Cr.P.C. and reiterated their previous statements. 11. The learned trial Court, taking into consideration all the facts and circumstances of the case, had convicted and sentenced the appellants, as stated above, whereas their co-accused Sabir Ali had died during the trial. 12. The learned counsel for the appellants, the State and the petitioner in the connected criminal revision petition were heard at length and the record of the case minutely perused with their assistance. 13. The learned counsel for the appellants contended for setting aside of the impugned judgment and submitted that the case against the appellants was of no evidence. In this respect, pointed out that of the two eye-witnesses of the occurrence Le. complainant P.W. 5 Muhammad Rafique and injured P.W. 6 Abdul Sattar, the testimony of the former is riddled with such improvements and contradictions duly established by confrontation during his cross-examination, that it has to be discarded in its entirety, whereas the testimony of the latter i,e. P.W. 6 Abdul Sattar, though of an injured witness, does not advance the case of the prosecution to support the charge against the present appellants as the said witness in the first instance had categorically stated during his cross-examination that his statement had not been recorded by the police under section 161 Cr.P.C., and that, therefore, in accordance with the established principles of law applicable thereto, his testimony has to be discarded as well; and that secondly, his testimony has been totally discredited in respect of very relevant and important particulars i.e. pertaining to his version of the occurrence. In this respect, further pointed out that the said P.W. 6 had changed his version in that respect by stating that he had not accompanied the deceased Shah Bahrain to check the decrease in the flow of irrigation water or being present at the time when the altercation between the said deceased and one Mst. Barkat Bibi had taken place. Further submitted that the said two eye witnesses had suppressed the injuries suffered by the accused party which creates serious doubts about the veracity of their testimony and as such their evidence cannot be relied upon without independent corroboration which is in any case not forthcoming in the instant case. Further argued that it is in the evidence of P.W. 11 Muhammad Jaffer S.I. and Investigating Officer of the case that the accused had taken the plea of free fight between the parties, resulting in injuries to persons of both sides right from the very beginning of the investigation of the case, that further strengthens the version of the defence and successfully impugns the prosecution version as set up. Further submitted that there was no evidence on the record either to prove that the complainant party was irrigating its field as claimed, or that Mst. Barkat Bibi had diverted the water for irrigation to her own field, or that the blood had been recovered fom the spot to establish that the occurrence had taken place in the manner or at the place claimed by the prosecution witnesses. Further submitted that the injuries suffered by the deceased Shah Behram have been attributed to the appellants, namely, Abdul Wahid and Muhammad Hassan, who are not injured, thus raising serious doubt about their being present at the place of occurrence, and that in any case injured P.W. 6 Abdul Sattar has admitted in his cross­ -examination that Muhammad Hassan was a prosecution witness against him in a criminal case registered prior to the present occurrence, and that both the principal accused/appellants had categorically stated in their statements recorded under subsection (2) of section 340 Cr.P.C. that they were not present at the time and place of occurrence in question. Further submitted that as the tolas allegedly recovered from the accused are not blood stained, therefore, they failed to support the case of the prosecution. Further contended that the FIR had been lodged after considerable delay, which raises very authentic suspicion in respect of false involvement of innocent persons, especially as complainant P.W. 5 Muhammad Rafique had deposed in his testimony that the Police Station was just 2/3 acres from Civil Hospital, Khanewal, where the injured was taken in the first instance and medically examined. Finally submitted that the injuries suffered by the accused party stand duly proved as they had been medically examined pursuant to their being produced before the doctor by the police after they had been arrested and that the total injuries suffered by the accused party were eleven in number, one of being grievous that was suffered by Sabir Ali accused, who had expired during the trial. 14. On the other hand, the learned counsel for the State and the petitioner, appearing in the connected criminal revision petition, argued that the accused party had themselves admitted the occurrence in question, which had resulted in the death of Shah Behram and injuries to PW. 6 Abdul Sattar, and that as such the instant case was not one of total acquittal. Further submitted that the two eye-witnesses namely, PW. 5 Muhammad Rafique and P.W. 6 Abdul Sattar, are natural witnesses of the occurrence in question, and as the accused party has admitted to have caused injuries to PW. 6 Abdul Sattar, therefore, his testimony cannot be ignored and goes a long way to prove the instant case against the accused/appellants. Further argued that the defence version fails to fully explain as to how the deceased had suffered two injuries that had proved fatal and that, therefore, the defence version can only be termed as a belated one to make out a case of mitigating circumstances on behalf of the accused/appellants. Further explained that the delay in lodging the FIR stands explained as the complainant party was pre-occupied with their efforts to save the life of Shah Behram, who was in injured condition at that time. The learned counsel for the State further argued for sustaining the conviction and sentenced awarded to the appellants vide the impugned judgment 15. The Court has given its anxious consideration to the contentions raised for and against the sustaining of the conviction and sentences awarded to the present appellants. It has been taken notice of that it is in the testimony of injured PW. 6 Abdul Sattar that the Lumberdar of the village was present in the village when they had removed the deceased Shah Behram in an injured condition, and that, therefore, the delay occurred in recording the First Information Report with the police, and the failure of the said Lumberdar or of a member of the complainant party to report the occurrence promptly to the police, raises serious doubt about the authenticity of the FIR Exh. PH as subsequently recorded. Further notice has been taken of the evidence of the complainant PW. 5 Muhammad Rafique, who admitted in his testimony that the police station in question was in the vcinity of Khanewal Hospital, where they had removed the injured, but nevertheless he had made no attempt to straightaway report the matter to the police. It has been further taken notice of that the complainant PW. 5 Muhammad Rafique was time and again confronted during his crossexamination regarding the improvements that he had made in his testimony with reference to Ex. PH i.e. FIR lodged by him. In this respect, the Court is constrained to point out that the said PW has been successfully confronted in respect of each and every assertion made by him in his testimony before the learned trial Court, and that, therefore, his testimony can neither be relied upon to sost^nrthe conviction of the appellants, nor can it be pressed into service to corroborate the testimony of any other prosecution witness. Furthermore, the injured PW. 6 Abdul Sattar's testimony also suffers from very material discrepancies that raise serious doubt about the incident in question having taken place in the manner claimed by the prosecution witnesses. For example, he, for the reasons best known to him, denied in very unequivocal terms ever having been examined by the police; and furthermore when confronted with Ex. DA, he was materially contradicted, as contraiy to what had been recorded therein, he had claimed in his testimony before the learned trial Court that he had neither accompanied the deceased Shah Behram to the spot to find out the decrease in the flow of irrigation water nor was present at the spot where an altercation, as claimed by the prosecution, had taken place between the said deceased Shah Behram and Mst. Barkat Bibi. Therefore, it is hereby observed that the testimony of the said injured PW. 6 Abdul Sattar fails to advance the case of the prosecution in any manner or to succeed in corroborating the evidence of any other prosecution witness including the testimony of the complainant PW. 5 Muhammad Rafique, in whose case it has already been observed that his testimony was not worthy of credence and reliance, and it is further observed that in any case one tainted piece of evidence cannot corroborate another tainted piece of evidence. It needs to be observed herein that although some of the accused/appellants had taken up the plea of free fight between the parties pursuant to an attempt by the deceased Shah Behram to outrage the modesty of the wife of Said appellant, yet there is no direct evidence through any source, except for their bald statements to that effect, which can establish that the occurrence in question had taken place in the manner claimed by the defence. It is further observed, in that respect, that it is a fundamental principle of the safe administration of criminal justice, time and again reiterated by the superior Courts in their various pronouncements that a criminal case has to be proved against the accused beyond reasonable doubt by the prosecution on the basis of the evidence brought on the record and that the burden thereof never shifts to anyother person or party, even if the accused take up any plea or pleas, whosoever inconsistent, contradictory or far-fetched; and that in the instant case the prosecution has failed to discharge the said responsibility placed on its shoulders for the reasons discussed above. 16. Pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment is set aside. Resultantly, the appellants are acquitted of all the offences charged. They are on bail; their bail bonds stand discharged accordingly. 17. Pursuant to what has been stated above, Criminal Revision No. 176 of 1985, directed to be heard alongwith the present criminal appeal, is hereby dismissed. (A.P.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. Lahore 1430 [Multan Bench] Present: ch. khurshid ahmad, J. RIAZ-Appellant versus STATE-Respondent Crl. Appeal No. 64/1991, partly accepted on 18.7.1996. (i) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302-Double murder-Offence 6f-Conviction for—Challenge to—All are interested witnesses-They were not natural witnesses-PWs are not deposing truth and are therefore disbelieved—Recovery of dagger being violative of mandatory provisions of Cr.P.C.—None of marginal witnesses was resident of locality from where bloodstained earth was collected- Motive was absolutely disowned-Prosecution witnesses made improvement over their previous statements lends support in concluding that witnesses were withholding truth-Prosecution story when put in juxta position to version of defence loses its veracity—Facts narrated by prosecution have been disbelieved—Appeal partly accepted. [Pp. 1438,1439 & 1441] A, B, C, D, E & F (ii) Pakistan Penal Code, 1860 (Act XLV of I860)-- —Ss. 302 & 304 Part I-Double murder-Offence of~Sudden provocation-Case of-Conviction for-Challenge to-Accused had not only caused death of deceased but also death of his real sister-Swabs taken from penis of deceased (Allah Dawaya) had shown that they were stained with semen-Swabs taken from vagina of Mst. Parveen were found negative but High Court is of the view in our society only sexual intercourse was not only cause to provoke a brother to cause culpable homicide-It was natural for a younger brother to get provoked and to be deprived of power of selfcontrol when he found her sister in objectionable condition with deceased (Allah Dawaya)—In rural society family honour was of prime importance and lying together in a cot was sufficient to provoke accused and deprive him of his self-control-Conviction of appellant U/S 302 PPC was not justified-Conviction is converted into one U/S 304 part I~Appeal partly accepted. [P. 1441] G Malik Wazir Ghazi, Advocate for Appellant. Sh. Muhammad Rahim, Advocate for State. Date of hearing: 13.5.1996. judgment The appellant was tried by Additional Sessions Judge, Multan for the offence u/S. 302 PPC on two counts for murdering Allah Diwaya and Mst. Parveen and was found guilty for committing the murder of Allah Dawaya and convicted u/S. 302 PPC and was sentenced to imprisonment for life and fine of Rs, 20,000/- and in default thereof to undergo further R.I. for 2 years. In case the fine was paid a sum of Rs. 15,000/- was ordered to be paid to the legal heirs of Allah Dawaya deceased as compensation. He was also found guilty for committing the murder of his sister Mst. Parveen and was convicted u/S. 302 PPC and was sentenced to life imprisonment with a fine of Rs. 20,000/- and in default thereof to undergo further R.I. for 2 years. In case the fine was recovered a sum of Rs. 15.000/- was ordered to be paid to the legal heirs of Mst. Parveen by way of compensation. Both the sentences were ordered to run concurrently. 2. The brief facts leading to the conviction of the appellant are that on 10.9.1987 Rahim Bukhsh son of Noor Muhammad made a statement to Malik Muhammad Wazir SI/SHO P.S. Gulgashat Multan while he was on patrol duty at about 9/10 a.m. which was got registered by the SHO as FIR No. 31/87 at P.S. Gulgashat Multan. In his statement the first informant had alleged that he was a cultivator. The father in law of his daughter, Allah Wasaya, has died and the Qull Khawani was to be held on 11.9.1987, and his son Allah Dawya aged about 25/26 years, a labourer at godown at Syed Wala, had been visiting his sister's house for the last 3/4 days continuously. On the said day at about 6.30 a.m. his son Allah Dawaya was returning from the house of his sister to the godown, when he reached near puli Shankar Wala Riaz accused, who had hidden himself behind of the garden, surprised him and pushed him down and started giving dagger blows. As he, Rab Nawaz son of Nazir, Sarfraz son of Ghulam Muhammad and Hakim Din son of Amrao were standing on the bus stop waiting for a bus to take them to Multan. On hearing alarm they all went to the spot and saw Riaz accused was giving dagger blows to Allah Dawaya. They challenged him. Riaz accused ran after them. When they withdrew, Riaz accused he again gave blows to Allah Sawaya who fell down. Riaz accused took up the cycle of his son and rocfc the same by raising lalkara that he tought a lesson to Allah Dawaya and he was proceeding to teach a lesson also to his sister who was having illicit relations with Allah Dawaya. He remained with his injured son whereas Rab Nawaz, Sarfraz and Hakim Din PWs pursued Riaz accused who returned the "cycle of his son to Talib Hussain, the owner thereof, and got another cycle and rode the same. After reaching Chah Marri-wala he attacked Mst. Parveen with the dagger and by felling her on the ground and, in the presence of Rab Nawaz, Sarfraz and Hakimuddin, gave many blows on her persons. When he was challenged he threatened and chased the said PWs. Mst. Parveen died at the spot. The motive as set up by the complainant was that Riaz accused had suspected and made allegation of illicit relation of his sister with Allah Dawaya. When Rab Nawaz, Sarfraz and Hakimuddin PWs returned Allah Dawaya had also expired and that the SHO had met him while he was on the way to the P.S. 3. After recording the statement Ex. PK of Rahhn Bukhsh Muhammad Wazir SI/SHO sent the same to the P.S. for formal registration of the case and proceeded with the investigation. He prepared inquest report, injury statement and an application for postmortem examination collected blood stained earth from both the places where deadbodies were lying, got the site plan prepared from the draftsman, gave his notes in red ink thereon and secured the last worn clothes of the deceased. He arrested Riaz accused and took into possession blood stained clothes. Riaz Ahmad accused led to he recovery of blood stained dagger and cycle on which he reached his house. He recorded the statements of the PWs and prepared report u/S. 173 Cr. P. C. 4. After the receipt of report u/S. 173, Cr.P.C. Illaqa Magistrate sent up the accused Riaz to stand his trial before the Court of Session. The tria court framed charge u/S. 302 PPG on two counts against the accused on 4 30.3.1989, The charges were read over to the accused who pleaded not guilty and claimed trial. . At trial prosecution produced Shaukat Hayat Draftsman who had repared site plan Ex. PA, Ex. PA/1 and Ex. PA/2 regarding the place of occurrence of deceased Allah Dawaya in scale of one inch to 20 feet on the direction of the police and the PWs. He similarly prepared site plan Ex. PB, Ex. PB/1 and Ex. PB/2 regarding the spot relating to Mst. Parveen deceased in the scale of one inch to 20 feet. All the notes and drawings are in black ink and both the site plans were in his hand. The site plan was delivered by him to the I.O. Sardar Bukhsh PW. 2 had joined the investigation of the case and blood stained earth was secured from the place where deadbody of Allah Dawaya was lying. The same was made into a parcel and secured vide memo Ex. PC. The blood stained earth from the place where deadbody of Mst. Parveen was lying was also collected, sealed into a parcel and secured vide memo Ex. PD. Both the memos were signed by him. On the same day Shalwar Pi and Shirt P. 2 of Riaz accused were taken into possession by the 1.0. vide memo Ex. PE. He signed the memo. On the next day he identified the deadbody of Allah Dawaya at the time of postmortem and last worn clothes of the deceased Shirt P3, Dhoti P. 4 and Muffler P5 were handed over by the constable PW. to 1.0. in his presence which were secured vide memo Ex. PF and was witnessed by him. Khan Muhammad PW. 3 had joined the investigation and Riaz accused in his presence led to the recovery of blood stained dagger P. 6 from his Chhapar inside his house which was sealed into a parcel and secured vide memo Ex. PG. On 15.9.87. Riaz accused in his presence led to the recoveiy of cycle P7 from garden which was secured vide memo Ex. PH. Register P8 and cycle P. 9 were also taken into possession. Recovery memo Ex. PH and Ex. PJ respectively were prepared and he witnesses the same. Hakimuddin PW. 4 & Sarfraz PW. 5 stated that they were eye witnesses of both the occurrence i.e. the occurrence relating to Allah Dawaya and the occurrence relating to Mst. Parveen deceased. Both of them stated that they had followed the accused from the place of occurrence where Allah Dawaya was injured, to the place of occurrence firstly to the shop of Talab Hussain and therefrom to his house where he committed the murder of Mst. Parveen. According to PW. 4 the distance between the two places of occurrence was 1 /2 miles and according to PW. 5 it is was 2/2^ miles. Rahim Bukhsh first informant appeared as PW. 6. He described the same occurrence was narrated by him in Ex. PK. He gave the distance between two places of occurrence as 2 miles. He was the eye witnesses of the occurrence of Allah Dawaya. Regarding motive he stated that:- "The accused committed the murder of my son for no fault and only on the fight between pigeons. The accused however committed the murder of his sister for his own safety and defence." Safdar Hussain Constable PW. 7 had escorted the deadbody of Allah Dawaya to the mortuary on 10.9.1987. Postmortem could not be conducted on that day and therefore the deadbody was placed in cold storage. On 11.9.1987 the postmortem was held the M.O. handed over to him two sealed tins and a sealed packet alongwith blood stained clothes of the deceased. Shirt P. 3, Chaddar P4 and Muffler P5 which he produced before the I.O. who secured the same vide memo Ex. PF. The same day ASI handed over to him two sealed parcels and one sealed envelope which he delivered intact at the office of the Chemical Examiner. On 4.10.1987 he again handed over two sealed parcels of blood stained earth and a sealed parcel of dagger which was also delivered intact by him in the office of Chemical Examiner. Muhammad Akram H.C./PW. 9 had escorted the deadbody of Mst. Parveen. The postmortem could not be conducted on said day and the same was conducted on the following day. Doctor handed over to him last worn clothes of Mst. Parveen deceased blood stained shalwar P10, Shirt Pll which he produced before the I.O. who secured them vide memo Ex. PL. Aman Ullah PW. 8 was posted as Moharrir of P.S. Gulgasht Multan on 10.9.1987. On the receipt of complaint Ex. PK he drafted formal FIR Ex. PK/1 correctly. On 11.9.1987 the 1.0. handed over to him two sealed parcels containing stomach wash and vaginal swabs. He kept the same in Malkhana safely and delivered the same to Safdar for onward transmission to the Chemical Examiner. The 1.0. handed over to him two parcels of blood stained earth and one sealed parcel containing blood stained dagger which he safely kept in Malkhana and sent to the office of the Chemical Examiner through Safdar Hussain PW on 4.10.1987. The blood stained clothes of Riaz accused in a sealed parcel were also handed over to him for safe custody. On 3.12.1987 he handed over three parcels containing clothes of two deceased which he sent to the office of the Chemical Examiner through Aqeel Ahmad but were returned under objection and were resent. Dr. Iftikhar Qureshi PW. 10 had conducted the postmortem examination of Allay Dawaya on 11.9.1987 at 11.00 a.m, and had found 13 injuries in his person.All the injuries were anti mortem and caused by sharp weapon. Five of the injuries were found to be sufficient to cause death in the ordinary course of nature collectively as-well as individually. The death in his opinion was caused due to shock and extensive haemorrhage. The probable time between the injury and death was immediate while the time between the death and postmortem was 24 to 36 hours. Ex. P.M. was the correct carbon copy of his postmortem report whereas Ex. PM/1 has the diagramme showing the location of injuries. Ex. P.M. was the inquest report. He also signed the inquest report and injury statement and also the police request On the same day at about 1.00 p.m. he conducted the postmortem examination of Mst. Parveen aged about 16/17 years. He found 15 injuries on her person. All the injuries were anti mortem and caused by sharp edged weapon. Death in his opinion had occurred due to shock and extensive haemorrhage as a result of 7 injuries which were sufficient to cause death collectively and individually in the ordinary course of nature. He also took vaginal swabs. The probable time between injury and death was immediate while between death and postmortem was 24 to 36 hours. Ex. PO was the correct carbon copy of his postmortem report and Ex. P.0/1 was the diagramme showing the location of injuries. He signed inquest report Ex. PP, injury statement and police request was also signed by him. He forwarded the reports of the Chemical Examiner to the SHO of the P.S. Aqeel Ahmad PW. 11 had received three sealed parcels allegedly containing blood stained clothes of Riaz accused and deceased by Moharrir on 3.12.1987 which he delivered intact to the office of the Chemical Examiner Lahore, after getting the objections removed. Wazir Ali SI PW. 12 had recorded the statement of Rahim Bukhsh complainant Ex. PK which he read over to him and got his thumb impression thereon. He sent the same for formal registration of FIR through Aqeel PW. He went to the place where the deadbody of Allah Dawaya was lying. He collected blood stained earth, sealed into a parcel and secured vide memo Ex. PC. He prepared injury statement Ex. PN/2, inquest report Ex. PN and wrote a written request Ex. PN. He proceeded to the spot where the dead body of Mst. Parveen was lying. He inspected the spot, collected blood stained earth, sealed the same into a parcel and secured vide memo Ex. PD. He also prepared inquest report Ex. PP, injury statement Ex. PP/1 and an application for postmortem examination PP/2. He despatched the deadbody of Allah Dawaya and that of Mst, Parveen. He arrested the accused the same day, recorded his statement and took into possession his blood stained clothes Shalwar PI and Shirt P. 2, sealed them into a parcel and secured vide memo Ex. PE. On 11.9.1987 the accused led to the recovery of blood stained dagger P6 which was sealed into a parcel and secured vide memo Ex. PG. He prepared site plan of the place of recovery Ex. PG/1. On the same day blood stained clothes of Allah Dawaya Shirt P3, Dhoti P4 and Muffler P5 were handed over to him by Safdar Hussain PW which were made into a parcel and secured vide memo Ex. PF. The last worn clothes of Mst. Parveen were produced before him by Akram PW. They were Shalwar P10 and Shirt Pll and were made into a sealed parcel and secured vide memo Ex. PL. On 12.9.1987 Shaukat Hayat PW handed over to him site plan of the places of occurrence of Allah Dawaya and Mst. Parveen. They were Ex. PA, Ex. PA/1, Ex. PA/2 and Ex. PB, Ex. PB/1 and Ex. PB/2 respectively. He gave his notes in red ink. On 15.9.1987 the accused led to the recoveiy of cycle which he rode from Talib's shop to his house. The same was secured vide memo Ex. PH. Cycle P9 and hire register P8 vide memo Ex. PJ. Cycle P9 had been hired by Allah Dawaya from Talib Hussain P. 8 and P. 9 were produced by Talib Hussain aforesaid. He correctly recorded the statements of PWs and entrusted all the sealed parcels and case property to Moharrir for safe custody. He completed the investigation and sent up the accused to the court for trial. 5. Ch. Zafar Iqbal DDA gave up Faiz Bukhsh, Talib Hussain and Mst. Naziran Mai PWs as having been won over by the accused. Rab Nawaz, Ashiq and Muhammad Yar PWs were given up as unnecessaiy. He made the statement on the basis of application. He tendered in evidence report of the Chemical Examiner Ex. PS, Ex. PT, Ex. PU and Ex. PV and copy of Jamabandi Ex. PW and Ex. PX and Ex. PY and closed the case for the prosecution on 25.9.1991. 6. The accused was examined u/S. 342 Cr.P.C. In his statement he admitted that he doubted Mst. Parveen his sister of having illicit relations with Allah Dawaya. He denied that he gave injuries to Allah Dawaya deceased at Pulli Shankar Wali. He also denied that he had picked up the cycle of Allah Dawaya and rushed to his own house. He however raised a plea of grave and sudden provocation. He stated that he gave injuries to Allah Dawaya and Mst. Parveen in his house when they were found lying together in objectionable condition, under grave and sudden provocation and that deaths were not caused intentionally. He stated that he had voluntarily appeared before the police and had produced dagger P6. He denied that any blood stained earth was collected from Pulli Shankarwali and stated that as both the deceased were done to death in the house of the accused the blood stained earth was collected from his house. He offered to make a statement u/S. 340(2) Cr.P.C. He also had stated that the police being in league with the complainant party made a case of grave and sudden provocation into a case of wilful murder by splitting up one occurrence into two occurrences. The accused appeared in the witnesses box and made statement u/S. 340(2) Cr.P.C. on oath. He stated that on the day of occurrence he saw Mst. Parveen deceased his sister and Allah Dawaya were lying together on a cot. He took up a chhuri from the room and killed Mst. Parveen and Allah Dawaya as he could not control his passions. He did that on account of his family honour and under grave and sudden provocation. He appeared before the police alongwith the weapon of offence at the P.S. The story of the prosecution was fabricated and the occurrence was also witnessed by his father. He produced Talib Hussain in his defence as DW. 1. He stated that during the days of occurrence he used to reside in village Saidanwali. He heard that murder had been committed in the house of Riaz accused. He went there. There was 30/35 persons present. He saw two deadbodies lying in the house of the accused which were of Mst. Parveen and Allah Dawaya. Mst. Parveen was the sister of the accused. Police took blood stained earth from under neath the deadbodies and they also got his thumb impression at P.S. The accused had not picked up any cycle from his shop at the time of occurrence. He did not own any cycle shop nor he gave any cycle to Allah Dawaya deceased on that day. He was illiterate and had not produced any register regarding any hire of cycle to the police. During the crossexamination he denied that register P8 belonged to him and that he produced the same before the police. He denied the suggestion that both the deceased were not done to death in the house of the accused or that Allah Dawaya was done to death at Pulli Shankarwali. Muhammad Muzammal DW. 2 stated that Riaz accused was their tenant during the days of occurrence. He owned land at Chah Marriwala where the accused and his father Faiz Bukhsh and other family members resided. He went to the house of father of the accused at about 9/10 a.m. ' some 3/4 years ago where he saw police in the house of Faiz Bukhsh and two deadbodies of Allah Dawaya and Mst. Parveen in the said house. The police took into possession blood stained earth from under both the deadbodies. Talib Hussain PW was also present. The police recorded his statement and got his signatures. He came to know at the spot that the accused had murdered both the deceased in his house under grave and sudden provocation. 7. I have heard the learned counsel for the appellant, learned counsel for the state and learned counsel appearing on behalf of the complainant. 8. It was contended by the learned counsel for the appellant that the alleged eye witnesses were related inter se. Rahim Bukhsh PW. 6 was the father of the deceased. The younger brother of Rab Nawaz PW was married to the daughter of PW. 6 i.e. the sister of the deceased. PW. 5 Sarfraz was the maternal uncle of the deceased whereas Hakimdin PW. 4 admitted that he was close friend of the father of the deceased since after partition. They were on mutual visiting terms and participating in all occasions of happiness and demises. Sardar Bukhsh PW. 2 was the cousin of the mother of the deceased and Khan Muhammad also was closely related. Ha further contended that motive as set up in the FIR Ex. PK as abundand by PW. 6 while appearing in Court. In Ex. PK he had stated that the accused had suspected both the deceased to be carrying on whereas in his statement PW. 6 had stated that his son was done to death due to pigeons' fight and the accused had murdered his sister only to save himself. No independent evidence was collected by the I.O. who conducted the investigation in a malaflde manner and had wrongly shown the place of presence of deadbody of Allah Dawaya at Pulli Shankarwali. The facts of the case had clearly shown that it was a case of grave and sudden provocation and that the accused had vindicated his family honour by doing to death both of the deceased who had brought disgrace to his family and that it was in the heat of passion that the accused was deprived of his self control who was youngman and that the offence u/S. 302 PPG was not made out. Learned counsel for the State and the learned counsel for the complainant however supported the impugned conviction and stated that the number of injuries on the person of both the deceased clearly indicated that the accused, even if single occurrence be admitted, had sufficient time to collect himself and that the intention to cause death could be inferred from number of injuries and weapon used by the accused. 9. I have given my anxious consideration to the facts of the case and the points of law raised at the bar. 10. The place of residence of the accused was Chah Marriwala. The first informant and the deceased also belonged to Chah Marriwala whereas Rab Nawaz PW was resident of Syedwala. Sarfraz PW was resident of Sydianwala and Hakimuddin was resident of Sunarwala Mouzia Neel Mot as mentioned in Ex. PK. Rab Nawaz was given up. All the PWs were statedly present at bus stop of Pulli Shankarwali where they were waiting for the bus. Rahim Bukhsh was also with them. When they saw the accused giving -dagger blows to Allah Dawaya deceased, the PWs were at a distance of about 40/50 karms from the place of occurrence as stated by PW. 5 whereas distance between the place of occurrence and the presence of the PWs was 17/18 karms according to PW. 5 and according to PW. 6 the distance was of about 35/40 karms. It was admitted by the PWs that the Pulli where they were standing had a few shops and there were also shops between Pulli Shankarwali and the place where they had been standing. None of the residents of Sydianwala, shop keepers of the bus stop and the others whose shops were scattered around had allegedly seen the occurrence at Pulli Shankarwali. All the four witnesses of the alleged occurrence at Pulli Shankarwali were not supposed to he there in the ordinary course and the contention of the learned counsel for the appellant that they were all chance witnesses, even if they be helieved to have seen occurrence and therefore were not reliable as also they were the interested witnesses. 11. The second part of the occurrence as stated by the prosecution if seen in context of narration of first occurrence appears to be absolutely not plausible. PW. 4, PW. 5 and PW. 6 had admitted that the accused had given blows to Allah Dawaya in their presence while they were at a distance of 20/25/30 karms from him and that they did not attempt to separate the accused and the deceased out of fear of injuries. PW. 4 and PW. 5, as alleged by them, followed the accused. It is not understandable as to why they opted to chase the accused who was still armed with a dagger while all the three had not dared earlier to intervene or to go near the accused. It would require a fool to believe that four PWs closely knitted together, of whom three were very closely related to the deceased, did not try to over power the accused while he was giving injuries to Allah Dawaya. The number of injuries on the person of Allah Dawaya suggests that the accused took some time inflicting those injuries. The closely related PWs who did not dare to save their own kin could not be expected follow the accused to witness the occurrence in the house of the accused himself, simply on the ground that the accused had exclaimed the he was going to teach the lesson of his "Kunjari" sister who was having illicit relations with Allah Dawaya. The narration of the occurrence of causing of injuries to Allah Dawaya and the following the accused by three PWs to his house while he was armed with a blood stained dagger was not probable even. The normal human behaviour for the close relation of the deceased Allah Dawaya was to care for his life, look after him and to lift him for some medical aid or at least to be present by his side while he was dying instead of opting to witness yet another occurrence with regard to a lady who was not related to them in any case. PW. 4, PW. 5 and PW. 6 were not natural witnesses of the alleged occurrence at Pulli Shankarwali, the conduct of Rab Nawaz, PW, Hakimuddin PW. 4 and Sarfraz PW. 5 in following the accused to his house and never attempting to apprehend him was in-explicable and only conclusion that could be drawn in the circumstances was that none of the 4 persons had seen any of the alleged occurrences. They are closely related inter se and Hakimuddin PW. 4 has admitted very close terms with the father of the deceased and as such they are not only chance witnesses but are interested against the accused and to ensure his conviction they opted to have seen an occurrence some 2/2^ miles away from Pulli Shankarwali. All the three PWs are not deposing the truth and are therefore disbelieved. The occurrence did not take place as narrated by the aforesaid three PWs. 12. The I.O. had allegedly taken into possession Register P8 and Cycle P9 from Talib Hussain who was named as prosecution witness. Talib Hussain appeared in Court and denied that he ever produced P8 and P9. He stated that he was an illiterate man and was not running any shop for giving on hire the cycles to the intending users. I have seen Ex. PJ which states that Talib Hussain aforesaid had produced P8 and P9 but he was not made a witness to the recovery memo. The witnesses of recovery memos are one Ashiq resident of Basti Sharif Pura, Multan and Khan Muhammad PW. 3 who was resident of Hasanabad, Multan. None of the witnesses of recoveiy memos belonged to the place where P. 8 and P. 9 were produced. The fact that Talib Hussain was not made a witness of recovery memo and subsequently was given up as having been won over sufficiently suggests and I have reasons to presume that, if produced, he would not have supported the prosecution case. Similarly the memo of recovery of cycle P7, Ex. PH was also witnessed by Khan Muhammad PW. 3 and Ashiq aforesaid. The accused, while in police custody, had allegedly got recovered P7 from his house. He was interrogated before. He led to the recovery. Similarly Dagger P6 was allegedly got recovered by the accused while in police custody from a Bhana in his house. Ashiq and Khan Muhammad were the witnesses of both these recovery memos. Both the PWs were not residents of the locality and the I.O. has not explained as to why he did not join the respectables residents of the locality and as to what compelled him to deviate from the mandatory provisions of Section 103 Cr.P.C. The proceedings of the recovery being violative of mandatory provisions are shaddy and I disbelieve the prosecution evidence to the extent of recovery of dagger P6 and cycle P. 7. Talib Hussain who allegedly produced P8 and P. 9 appeared as DW. 1 and contradicted the prosecution story. He was an independent witness. There was no reason to disbelieve him as against those witnesses who were the relative of the deceased and were not residents of the locality. 13. Having disbelieved the eye witnesses account as given by PW. 4 and PW. 5 of both the alleged occurrence and of PW. 6 regarding occurrence ofPulli Shankarwali and disbelieving the recovery of P6, P. 7, P. 8 and P. 9 as described by PW. 3 and the I.O. I have left only with the prosecution evidence of recovery of blood stained earth from Pulli Shankarwali and from the house of the accused. The recovery memos are Ex. PC and PD respectively. The marginal witnesses to these recovery memos are Ashiq PW (not produced) and Sardar Bukhsh PW. 2. Sardar Bukhsh PW. 2 had admitted in the cross-examination that:- "I reside in Hassan Abad situated at 6/7 miles from the place where Allah Dawaya was murdered and the blood stained earth was collected. The place where Parveen was murdered and blood stained earth was secured is about 8 miles from my residence." None of the marginal witnesses was resident of the locality from where the blood stained earth was collected. Sardar Bukhsh PW. 2 was informed about the occurrence by one Yasin who was resident of a village 7 miles away from his place of residence and who was not related to Allah Dawaya, his cousin' son. He was informed at about 7.15 a.m. and that he reached at Pulli Shankarwali where the deadbody was lying and the police had not yet arrived. He admitted that about 20/25 persons were present there and that 10/15 persons were present in the house of Mst. Parveen deceased. None of those persons who were present at the place of occurrence, wherefrom the blood stained earth was collected, was not made to witness the recovery memo. The I.O. admits that many persons were collected at both the places but it is evident that he did not join any of the residents of the abadi, where the occurrence allegedly took place. The version of the prosecution is not supported by the natural witnesses who could be presumed to be present at the time of collecting and securing of blood stained earth at two places. PW. 2 Sardar Bukhsh was admittedly a close relation of the deceased. I disbelieve this part of the investigation also and I am of the view that the prosecution has failed to prove that blood stained earth was collected from Pulli Shankarwali and from the house of the accused which was two miles away from each other. 14. Having disbelieved the prosecution version to the extent of investigation and securing the blood stained from the two places I am left with the defence versions of the accused. It is admitted by Muhammad Wazir SI/SHO PW. 12, who had investigated the case and had arrested the accused on the very day of occurrence, that the accused at the time of arrest, had come out with his own version and the first version of the accused was that he had committed the murder of Allah Dawaya and his sister Mst. Parveen to vindicate the family honours both of them were found in objectionable condition. 15. In cases where the accused takes plea in his own defence the court is to appreciate the evidence of the prosecution produced at the trial and place the defence plea in juxta position of the prosecution case and see which of the two was more plausible. 16. Before proceeding to come to the conclusion which of the two versions was more plausible I am to record that the prosecution in all cases was supposed to stand on its now legs. In a case where the accused takes version in defence he still remains most favourite child of law and the prosecution is not exonerated from the onus to prove the prosecution story beyond all reasonable doubt. In the present case the prosecution as observed ibid failed to prove its case through independent and disinterested witnesses. The version regarding two occurrences was inexplicable and especially so when PW. 6 abundand the motive as set up in his first statement before the police i.e. Ex. PK. It is not necessary to hold an accused not guilty of such an offence in the absence of a motive but where the motive was set up it was the duty of the prosecution to prove it and the precedents of the superior courts are innumerable in this behalf. In the present case the position is worst for the prosecution. The motive was set up at the first instance but then it was absolutely disowned and that too not without a reason. The first informant PW. 6 was aware of the fact that the accused would, in the circumstances of the case, gain some support from the defence plea and therefore the motive as set up was discarded. The attitude of PW. 6 in discarding the motive earlier set up by him indicates malafides on his part. Khan Muhammad PW. 3, Hakimuddin PW. 4 and Sarfraz PW. 5 had made improvements upon their previous statements. They were duly confronted with Ex. DA, Ex. DB and Ex. DC. PW. 6 was also confronted with Ex. PK regarding the improve­ ments etc. The fact that the prosecution witnesses made improvement over their previous statements lends me support in concluding that the witnesses were withholding the truth. The prosecution story when put in juxta position to the version of the defence loses its veracity and probability of its being tune in the circumstances of the case. 17. In view what has been stated above I have to see as to what offence has been committed by the appellant according to his own version if believed in entirety. Exception 1 to Section 300 PPC reads as under:- Exception 1: When culpable homicide is not murder; Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Proviso 1, 2 and 3 are not applicable in the present case however explanation is important for the determination of liability in the present case. It reads as under:- "Explanation: Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact." 18. The facts as narrated by the prosecution have been disbelieved. The accused had not only caused the death of Allah Dawaya but also the death of his real sister Mst. Parveen. The swabs taken from the penis of Allah Dawaya deceased had shown that they were stained with semens. The swabs taken from the vagina of Mst. Parveen were found negative but I am of the view in our society only sexual intercourse was not the only cause to provoke a brother to cause culpable homicide. It was sufficient in the circumstances of the case for a younger brother to get provoked and to be deprived of power of self control. In the rural society family honour was of prime importance and lying together in a cot was sufficient to provoke the accused and deprive him of his self control and in the circumstances I am of the view that the conviction of the appellant u/S. 302 PPG was not justified. His conviction u/S. 302 PPC by the trial court is therefore, converted into one u/S. 304 Part I PPC. 19. Coming to the quantum of punishment I take due notice of the number of injuries on the person of both the deceased. The appel ant is therefore awarded aximum sentence of imprisonment of 10 years on two counts. It is noteworthy that sentences awarded by the trial court were ordered to run concurrently. The sentences therefore on both the counts shall run concurrently and the appellant is declared entitled to the benefit of Section 382-B Cr.P.C. The appellant shall also pay fine of Rs. 2,000/- under each count and in case the fine be not recovered the appellant all undergo further R.I. for 3 months on each count. 20. The appellant is further declared to be entitled to all concessions won by him so far during his incarceration in jail. He shall be released by the Jail Authorities on the completion of sentences mentioned aforesaid. 21. The Jail Authorities shall release the appellant on the completion of the sentences mentioned above if not required to be detained in any other case. 22. The appeal is accordingly dismissed with the above modifications. (K.K.F.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1442 Present: MUHAMMAD AQIL MlRZA, J. MANSAB etc.--Appellants versus District Magistrate etc.—Respondents Crl. Revision No. 191 of 1996, dismissed on 27.6.1996. Criminal Procedure Code, 1898, (Act V of 1898)- —Ss. 176(2), 435 and 439«Murder--Offence of--Disinterment of dead body- Pray for~Challenge to—Contention that Mst. Sarwar Bibi died because she used utensil, having some particulars of pesticide for drinking water- Serious allegations have been levelled—It will be in the interest of justice if cause of death of deceased is ascertained-Impugned order advances demand of justice and it cannot be annulled in discretionary jurisdiction under Ss. 435/439 Cr.P.C.--Petition dismissed. [P. 1443] A & B Ch. Muhammad Amin Javaid, Advocate for Petitioner. Date of hearing: 27.6.1996. order Mst. Sarwar Bibi who was wife of the petitioner died in mysterious circumstances while living in the house of the petitioner. Jamal who is the maternal uncle of the deceased made an application to the District Magistrate that she has died on account of the poison administered to her by the petitioner and two others. Request was made for disinterment of the dead body of Mst. Sarwar Bibi, so that the cause of death may be ascertained. The District Magistrate vide order dated 20.6.1996, exercising powers under Section 176(2) Cr.P.C. has allowed the dead body of the deceased to be disintered and for the post-mortem. It is this order which has been challenged in this revision petition. 2. The case of the petitioner is that Mst. Sarwar Bibi died because she "used the utensil, having some particulars of pesticide for drinking water and fell on the ground unconscious". Learned counsel has submitted that she died because of her own mistake and misunderstanding and a D.S.P. investigated the cause of death and found that she died because of her own mistake. It is urged that the complainant obtained the order from the Magistrate for causing harassment to the petitioner. 3. The complainant is the real maternal uncle of the deceased. Serious allegations have been levelled against the petitioner that he caused death of his wife. Incidents of such nature where house-wives are killed by their parents-in-law are not uncommon. It will be in the interest of justice if the cause of death of the deceased is ascertained. The impugned order, therefore, advances the demand of justice and it cannot be annulled in the discretionary jurisdiction of this court under Ss. 435/439 Cr.P.C. If from the chemical examination is found that some poison which may well be other then a pesticide was administered to the deceased, the petitioner will be an accused person in a murder case. On the request of such a person the order passed by the District Magistrate cannot be set aside. 4. For what has been stated above, this petition is dismissed in limine. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1444 [Bahawalpur Bench] Present: muhammad naseem, J. ZULFIQAR ALI--Appellant versus STATE-Respondent Criminal Appeal No. 14 of 1992, dismissed on 13.8.1995. Pakistan Penal Code (Act XLV of I860)-- —-Ss. 302, 307, 457--Murder--Offence of--Conviction for--Challenge to--Eyewitnesses had no animosity against appellant, their statements are without any material discrepancy and their presence at occurrence place was quite natural-Version of appellant is not believeable~He was apprehended at the spot-Medical evidence has corroborated eye witnesses-CMzm taken into possession by police at the time of arrest of appellant, was found to be stained with human blood-Held: Prosecution has established its case beyond any doubt-Further held: Trial Court has exercised its discretion by imposing lessor penalty-Appeal dismissed. [P. 1448] A to C Mr. A. R. Tayyab, Advocate, for Appellant. Mr. Shaffi Muhammad Tariq, Advocate, for State. Date of hearing: 27.7.1995. judgment This appeal is directed against the judgment dated 20.1.1992 passed by the Additional Sessions Judge, Rahim Yar Khan whereby he convicted and sentenced Zulfiqar Ali accused to undergo imprisonment for life and to fine of Rs. 10,000/- or in default of its payment to undergo R.I for a period of two years under section 302 PPC for causing the murder of Muhammad Moosa Khan; to R.I. for a period of two years and to fine of Rs. 1,000/- or in default of its payment to undergo R.I for a period of six months under section 457 PPC for committing the lurking trespass into the house of Abdur Rehman PW and to R.I. for a period of five years and to fine of Rs, 2.000/- or in default of its payment to further undergo R.I for a period of one year under section 307 PPC on each count for making the murderous assault upon Abdur Rehman PW and Farooq-e-Azam Constable PW. The amount of fine of Rs. 10,000/- was directed to be paid to the heirs of Muhammad Moosa deceased. The amount of fine of Rs. 2,000/- on each count was directed to be paid to the injured Abdur Rehman and injured Farooq-e-Azam Constable PW. All the sentences were directed to be undergone concurrently. The convict was also granted the benefit of section 382-B Cr.P.C. 2. The facts of the prosecution case are narrated in statement Ex. PA of Abdul Latif complainant PW-5 recorded by Sana Ullah SI while on Gasht of the area on the basis of which Ghulam Ali Moharrir/HC PW-1 prepared the formal FIR Exh. P A/1. According to Abdul Latif complainant PW-5 on the night falling between 19/20.4.1989 one thief trespassed the house of Abdur Rehman injured PW-6 at night to commit the theft. Abdur Rehman was awoke who raised the alarm. The thief left his house. Farooq-e- Azam Constable PW-7 was on Gasht of the area who arrived there and attempted to apprehend the thief. That thief fired which hit the said Constable. He and his brother (not produced) followed the thief. Abdur Rehman PW-6, Ghulam Mustafa PW-87 and Muhammad Aslam PW (not produced) also chased the thief. In the meanwhile Moosa Khan (deceased of this case) same out of his house where the thief had arrived. Moosa Khan tried to catch hold of that thief who asked him to get aside otherwise he would be murdered. Thereafter that person inflicted the Chhuri blow in the chest of Moosa Khan who fell down and immediately expired. Abdur Rehman PW-6 went close to the accused who was injured with the Chhuri by him. He (complainant) and his brother Nazir Ahmad and other PWs caught hold of that accused alongwith Chhuri and one pistol with magazine. On their enquiry the thief told his name as Zulfiqar Ali son of Khushi Muhammad, Caste Arain, resident of Nisar Colony, Khanpur. During tHe occurrence Zulfiqar Ali appellant was also injured. 3. The case was investigated by Sana Ullah SI PW-10. Zulfiqar Ali appellant was produced before him alongwith pistol P-4 having magazine P-5 with one missed bullet and blood-stained Chhuri P-6 which he took in his possession. Alongwith the accused and others he reached the place of occurrence. He prepared injury statement about Abdur Rehman and Farooq-e-Azam Constable as well as that of Moosa Khan deceased. He prepared inquest report about Moosa Khan deceased. The accused was also injured during the occurrence and the injury statement pertaining to him was also prepared. He sent the d ad-body for autopsy and the injured persons for their medical examination. He took into possession blood stained earth from the place of occurrence. He got prepared site-plan from Habib Ullah Patwari. Dr. Jam Jamil Akhtar Medical Officer, Civil Hospital, Khanpur PW-12 conducted the post-mortem examination on the dead-body of Muhammad Moosa Khan on 20.4.1989 and found one incised wound cm x \ cm x 7 cm deep in the 3/4 left inter costal space, the 4th rib costal cartilage was fractured, the right artrium of heart had incised wound with size 2 \ cm. He issued the post-mortem report. He medically exmained Abdur Rehman, Farooq-e-Azam Constable and Zulfiqar Ali accused and issued the medico legal reports. The earth and the Chhuri were sent to the Chemical Examiner who found the same to be stained with blood and the Serologist gave his opinion that both the said items were stained with human blood. 5. At the trial Zulfiqar Ali appellant was charged under sections 302/457/307 (on two counts). The PWs stood in the witness box and supported the prosecution case. 6. When examined under section 342 Cr.P.C. Zulfiqar Ali appellant stated a different version about the facts of the prosecution case and took up the following stand:- "I have been falsely involved in this case. The fact is that I run a sweet-meat shop at Adda Iqbal Nagar Rahimyarkhan and as routine I returned by a passenger train to my at Khanpur. I had a cash of Rs. 3,500/- the daily sales money, a seiko 5 wrist watch, keys of shop, my national identity card and a railway ticket from Rahimyarkhan to Khanpur with me. After alighting from the train, I was travelling to my house afoot near Railway Level Crossing at near about 10.15 p.m. There two police constables were already present. They stopped me and searched my person and forcibly took into possession the above mentioned money and articles illegally. I told them that I am not at fault and have committed no offence. They wanted to take me to the police station forcibly. When I told them that I am not at fault and have committed no offence, they shouted, shut up and further asked me to keep quiet. They slapped me thrice and I turned to them in the same coins. One constable caused injury at my fore-head and eye-brow with the butt of the gun. They again gave me two slaps and they tried to injure me with gun-bayonet at my belly which I took at my left hand and it injured my hand. Then they took me to the police station City Khanpur in a police van. I had become unconscious. I was made to drink water and I became again conscious. Then may eyes were blind-folded and they took me to a jungle. There they threw me in a ditch and gave beatings to me. On the next morning, I was got admitted in the hospital at 6.00 a.m." 7. After hearing the parties learned trial Court gave the weight to the ocular account corroborated by medical evidence and recoveries as well as the arrest of Zulfiqar Ah' appellant fruui the spot and convicted the appellant as narrated above. Hence this appeal which has been resisted by the State. 8. I have heard the learned counsel for the appellant as well as the learned State counsel and gone through the record before me. The first assertion of the learned counsel for the appellant is that according to the tatement of Abdur Rehman PW-6 he was not a wealthy person as he had no television, VCR etc. in his house and it could not be expected that Zulfiqar Ali appellant went to his house. It would be palpable error to agree with him. A thief trespasses the house to make the theft and obviously no enquiry is effected by him about the presence of the costly articles in the house. He has to depend upon the chance and the luck. Hence I do not give the weight to this argument. 9. The next contention of the learned counsel for the appellant is that the police has not produced the duty roster about Farooq-e-Azam Constable and his statement is not entitled to be relied upon. As rightly pointed out by the learned State counsel in this regard the vigilance was to be shown by the learned defence counsel who could requisition the Daily Dairy of the concerned Police Station to confront Farooq-e-Azam Constable PW-7 and this laxity on his part has made me to ignore this assertion. 10. It was argued on behalf of the appellant that the uniform and the rifle of Farooq-e-Azam Constable PW-7 were not taken into possession by the police and the version of the prosecution can easily be termed to be doubtful. I do not agree with him. Learned State counsel has rightly pointed out that without the uniform and the rifle of Farooq-e-Azam Constable the remaining prosecution evidence is of that much weight that the appellant cannot save his skin as desired by him. 11. Last of all learned counsel for the appellant relied upon the version of Zulfiqar Ali appellant reproduced supra from his statement recorded under section 342 Cr.P.C. and argued that the police wanted to deprive Zulfiqar Ali, a sweet-meat seller in Rahim Yar Khan, of the amount earned by him when he was belaboured and a scuffle took place. According to him Haji Karam Din PW-4 admitted that Zulfiqar Ah' appellant was running the shop of sweet-meat. He added that the statements of the eye­ witnesses are neither full of confidence nor inspiring which are liable to be ignored and the version of the appellant has to be accepted. He maintained that keeping in view the version of the appellant he cannot be held liable in the matter. The learned State counsel argued that the version of the appellant as expressed above was neither put to the eye-witnesses especially Farooq-e-Azam Constable PW-7 nor to the Investigating Officer during their respective cross-examination and this aspect of the matter is simply after thought which is devoid of legal force. He added that Zulfiqar Ali appellant may be a sweet-meat seller at any place but that is not enough to exonerate him. In my view the statements of the eye-witnesses out of whom Abdur Rehman PW-6 and Farooq-e-Azam PW-7 were injured during the occurrence are without any material discrepancy fatal to the prosecution case which have inspired the confidence. The eye-witnesses had no animosity against Zulfiqar Ali appellant. After the first alarm raised by Abdur Rehman injured PW the attraction of the other eye-witnesses was quite natural. Unfortunately Muhammad Moosa Khan deceased of this case arrived out of his house and met his fate at the hands of Zulfiqar Ali appellant. The most important aspect of the matter is that the version of Zulfiqar Ali appellant is not believable. He was apprehended at the spot. During the occurrence he was also injured. In such cases a thief (and in the instant case Zulfiqar Ali appellant) is inflicted the injuries by the persons who apprehend him and especially in the instant case when Muhammad Moosa Khan had expired at his hands. The eye-witnesses were justified to injure the appellant to overpower him. The medical evidence has corroborated the eye-witnesses. The injury on the person of Muhammad Moosa Khan deceased is in consonance with the statements of the eye­ witnesses. Two of the eye-witnesses namely Abdul Rehman PW-6 and Farooq-e-Azam Constable PW-7 were also injured during the occurrence and their statements are that of utmost and enormous importance. The Chhuri used by Zulfiqar Ali appellant was taken into possession by the police at the time of his arrest as the complainant produced the appellant before the police after the occurrence. The same was found to be stained with human blood in view of the reports of the Chemical Examiner and the Serologist. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, analysis of evidence and discussion would be that the prosecution has established its case beyond any reasonable doubt. 12. The trial Court has already exercised its discretion in favour of the appellant by imposing the lesser punishment. I see no merit in this appeal and dismiss the same. (MYFK) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1449 [DB] [Circuit Court Hyderabad ] Present: amanullah ABBAsi and rana bhagwan das, JJ. MUHAMMAD HUSSAIN alias PAPU-Applicant versus STATE-Respondent Crl. Bail Application No. 56 of 1996, accepted on 3.7.1996. Bail- —S. 497 Cr.P.C.-Bail-Grant of-Prayer for-Offence U/Ss. 6 & 9 of Narcotic Control of Substances Ordinance, 1995-CAaras-Recovery of- Recovered charos has not been sent to Examiner for report and offence is not punishable with death or imprisonment for life-Bail granted. [P. 1449]A Mr. Aftab Ahmed Bhutto, Advocate, for Applicant. Mr. Abdul Latif, A.A.G. for State. Date of hearing: 3.7.1996. order The FIR in this case was registered on 25.7.1995 for offences U/Ss. 6 & 9 of Narcotics Control Substances Ordinance, 1995. Learned Advocate for the applicant has requested for bail on the ground that the offence U/S. 6 is punishable upto seven (7) years. There is no independent witness of recovery and recovered Charas has not been sent to Chemical Examiner for his report. Learned A.A.G. concedes that the offence is not punishable with death or imprisonment for life. He also submits that the recovered Charas has not been sent to Examiner for report although a period of nearly one year has passed. Keeping in view the above facts that recovered Charas has not been sent to Examiner for report and the alleged offence is not punishable with death or imprisonment for life, we grant bail to the applicant subject to furnishing of surety in the sum of Rs. 75.000/- (Rupees Seventy Five Thousand only) & P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1450 [DB] [Circuit Court Hyderabad] Present: abdul majeed khanzada and ghulam hyder lakho, JJ. KHETO-Applicant versus STATE-Respondent Crl. Bail Application No. 550 of 1995 accepted on 6.5.1996. Bail- —S. 497 Cr.P.C.--Bail--Grant of--Prayer for--Opium-Recovery of-Place of incident is thickly populated and even bus was carrying other passengers apart from applicant but inspite of that Inspector has violated provisions of Section 103 Cr.P.C. and has not tried even to associate any private person to act as mas/zir-Charge has not been framed-Conviction is only upto seven years as such it does not fall within prohibitory clause of Section 497(i) Cr.P.C.--Bail granted. [P. 1451] A Mr. Ghulam Moinuddin Baloach, Advocate, for Applicant Mr. Abdul LatifAnsari, Assistant A.G. for State. Date of hearing: 6.5.1996. order The brief facts leading to this application are that on 4.11.1995 Inspector Ghulam Muhammad Panhwar S.H.O, P.S. Site Hyderabad lodged his report being Crime No. 33 of 1995 under Section 9 Narcotic Act, stating therein that on 4.11.1995 vide Roznamcha entry No. 22 when he was patrolling and reached near Ganjo Takar Check Post alongwith A.S.I. Tariq Latif, H.C. Allah Warayo, P.C. Blund Shah, P.C. Muhammad Jumman and started checking the vehicles on the road. It is the case of the prosecution that during the checking at about 4.45 p.m. a bus which was going from Hyderabad to Tando Muhammad Khan was stopped and during checking" the present applicant/ accused was apprehended and on his personal search 200 grams of opium and Rs. 50/- alongwith the Identity Card was recovered. The opium was weighed to be 200 grams and was sealed. Such Mashirnama was prepared and A.S.I. Tariq Latif and H.C. Allah Warayo acted as Mashirs and the present applicant/accused who disclosed his name as Ketho was arrested and brought to Police Station and F.I.R. was lodged. The applicant/accused is challaned in the Court of Special Judge Control of Narcotic Substances Hyderabad. . The main contentions of the learned counsel for the applicant/accused are that the applicant/accused has nothing to do and this opium and the same has been foisted. His second contention is that he is behind the bars from 4.11.1995 and even the charge has not been framed. The third contention of the learned counsel is that admittedly it is a thickly populated area and a main road yet the Police has deliberately and intentionally violated the provisions of Section 103 Cr.P.C. and has even not tried to associate a single private person to act as Mashir. The last contention of the learned counsel is that the conviction is only seven years as such it does not fall within the prohibitory clause. Mr. Abdul Rasheed Qureshi S.P.P. Narcotic states that since the case is deducted by the Police and challaned by the Police, as such he is not concerned with it Mr. Abdul Latif Ansari Assistant Advocate General has opposed the bail application as according to him a huge quantity of opium has been recovered and no enmitywhatsoever has been shown as to why the Police should implicate the applicant/accused. We have heard the arguments and with the assistance of the learned advocates for the applicant and State counsel have perused the record. We are of the considered view that the place of incident is thickly populated and even the bus was carrying the other passengers apart from the present applicant/accused but inspite of that the Inspector has violated the provisions of Section 103 Cr.P.C. and has not tried even to associate any private person to act as Mashir. Charge has not been framed. Conviction is only upto seven years as such it does not fall within the prohibitory clause of Section 4t)7(i) Cr.P.C. We accordingly grant bail to the applicant/accused in the sum of Rs. l.OO.OOO/- and P.R. Bond in the like amount to the satisfaction of the trial Court. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1451 Present: ahmad saeed awan, J. GHULAM SHABBIR-Petitioner versus STATE-Respondent Crl. Appeal No. 235/1995, accepted on 4.6.1996. Bail- —Offence U/S. 302/34-Conviction for--Suspension of sentence-Pray for--It is well settled that a joint extra-judicial confession is inadmissible-It is also well settled that evidence of extra-judicial confession is a weakest type of evidence unless corroborated by independence and unimpeachable evidence, evidence of PW 4 was recorded after 21 days prima-fade is not confidence inspiring-Bail granted. [P. 1452] A Mr. Taqi Ahmad Khan, Advocate, for Petitioner. Miss Tasneem Amin, Advocate, for State. Date of hearing: 4.6.1996. order Ghulam Rasool s/o Rahmat Ali, aged 27/28, years, petitioner has ^_^ moved application under section 426 Cr.P.C. for suspension of conviction of ""• i5 sentence of life imprisonment (S.I.) awarded to him under section 302(b) PPC by the learned Additional Sessions Judge, Gujranwala vide judgment dated 21.3.1995 in case FIR No. 323, dated 19.8.1993 under section 302/34 PPC, P.S. Sattellite Town, Gujranwala. 2. The suspension of sentence is sought on the ground that no overt act has been attributed to him except that he stood nearby when his coaccused inflicted churri blows to the deceased; the trial court relied on extra judicial confession and on the statement of PW 4 recorded after 24 days of occurrence and no motive is alleged to the petitioner. ~ -^S ... 3. Father of the deceased got registered FIR Ex. PA on the same day of occurrence in which neither he mentioned the names of the culprits nor had shown any suspicion as to the murderous; the petitioner, alongwith the co-accused was arrested on 4.10.1993 on the basis of extra judicial confession and on the statement of PW4 Sana Ullah, recorded after 21-days of the occurrence; who had stated that he had sene the occurrence on 19.8.1993. While PW5 (Bashir Ahmad's) statement was recorded after 18-days of the occurrence wherein he stated that the petitioner told him that he had taken the deceased just in the street and co-accused had inflicted Churri blows to the deceased and PW6, Muhammad Akram stated even his statement was recorded after 15-days, that the petitioner and co-accused met him very next day of occurrence and had confessed murder of the deceased and sought the witness to get pardon for committing the said offence from his relative. 4. The petitioner has challenged the legality of the order, which Jarries weight as it is well settled that a joint extra judicial confession is I inadmissible in evidence, even otherwise it is also well settled that evidence of extra judicial confession is a weakest type of evidence unless corroborated by independent and unimpeachable evidence, the evidence of PW 4 was recorded after 21-days,prima facie is not confidence inspiring. 4. Keeping in view the above circumstances, the conviction and sentence awarded to the petitioner is suspended and is allowed bail in the sum of Rs. 1,00,000/- with two sureties each in the like amount to the satisfaction of the trial court. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1453 [Circuit Court Larkana] Present: ABDUL MAJID KHANZADA, J. MANJHI-Appellant versus STATE-Respondent Crl. Appeal No. 23 of 1996, accepted on 29.2.1996. Criminal Procedure Code, 1898 (Act V of 1898)- —S. 103—Gun-Recovery of—Conviction for-Challenge to—Investigating Officer has violated provisions of section 103 Cr.P.C.-I.O. and mashir police constable has given stereo-type evidence in both cases-Even FIR's in botch cases are stereo-type and identical-Accused has been acquitted in main crime and recovery of gun is an off-shoot~Prosecution has miserably failed to associate private mashir for recovery and have violated mandatory provisions of section 103—Appeal accepted. [Pp. 1455 & 1456] A Mr. Aftab Ahmad Gorar, Advocate, for Appellant. Mr. Isserdas, Advocates, for State. Date of hearing: 29.2.1996. judgment Present appeal is called in question the illegality and irregularity of the judgment dated 9.9.1989 passed by Sessions Judge, Larkana whereby convicted the appellant under section 13(e) Anns Ordinance and-sentenced him to under R.I. for two years and to pay a fine of Rs. 500/-, in case of default in payment of fine to suffer R.I. for six weeks more. The prosecution case in brief as stated in FIR being Crime No. 134/1988 registered by ASI of Police Station, Shahdadkot is that during the course of investigation of Crime No. 130/1988 registered on 23.10.1988 under section 17(3) Hudood Ordinance at Police Station, Shafadadkot, and during the investigation of the above cited crime, accused Manjhi volunteered to produce the incriminating arms and ammunition used in the ahove cited crime. As such the Investigating Officer alongwith his subordinate staff arrested accused Manjhi after making an entry at serial No. 27 on 12.11.1988 at 8.30 a.m. in Roznamcha of Police Station, Shahdadkot. Accused Manjhi then led the police party to the fodder which was lying in front of his house situated in village Shahbazi Chandio and from the heap of said fodder accused Manjhi took out a gun, three live cartridges, one seiko wrist watch and Rs. 250/-. It is the case of the prosecution that Investigating Officer demanded the licence of the gun which he failed to produce, as such the same was secured under a mashirnma and the Investigating Officer brought the secured incriminating gun, 3 live cartridges, seiko wrist watch and Rs. 250/- to the Police Station, Shahdadkot and lodged his report being Crime No. 134/1988 under section 13(e) Arms Ordinance and after usual investigation, challaned the accused. Prosecution to establish its case against accused Manjhi examined two witnesses PW-1ASI Javed Shah Ex. 5 who produced the mashirnama of recovery as Ex. 6. He also produced the entry of the Roznamcha at Serial No. 27 dated 12.11.1988. He also produced FIR being crime No. 134/1988 under section 13(e) Arms Ordinance as Ex. 7. PW-2 PC Abdul Ghafoor as Ex. 8. Prosecution closed it side by statement as Ex. 9. Statement of accused was recorded under section 342 Cr.P.C. as Ex. 10 in which the accused denied the allegations but he declined to examine himself under section 340(2) Cr.P.C. The learned Sessions Judge determined the following point and convicted the appellant:- "Whether accused Manjhi was found to be having in his possession/under his control one unlicensed single barrel gun of 12 bore and 3 live cartridges thereof which he, while being in custody recovered on 12.11.1988 at about 8.30 a.m. from the fodder lying in front of his house situated in village Shahbazi Chandio and produced the same before police which secured the same under a mashirnamaT I have heard Mr. Aftab Ahmed Gorar Advocate for the appellant and Mr. Isserdas for the State. The main contention of Mr. Gorar is that initially the accused was arrested in crime No. 130/1988 of Police Station, Shahdadkot under section 17(3) Hudood Ordinance in which he was acquitted. He has also argued that as alleged the gun and cartridges, wrist watch and Rs. 250/- were produced from the fodder which according to prosecution was lying in front of the house of the appellant. He has further argued that the prosecution has failed to examine or establish as to whose fodder it was and in whose land the fodder was lying. The prosecution has simply said that the incriminating articles were produced from the fodder lying in front of the house of the appellant. He has further argued that admittedly the village is thickly populated but none of the private person has been associated to act as mashir. He has argued that here was no exclusive possession of the appellant/accused. He has further argued that according to the prosecution story when the appellant/accused volunteered to lead the police to his village, it was the duty of the police to arrange for the private persons; He has argued that the accused has already been acquitted in the main case and this is an off-shoot of Crime-No. 130/1988. Mr. Isserdas learned State counsel has supported the prosecution case. I have heard the arguments of both the counsel and with their assistance have perused the entire record. Accused Manjhi was arrested alongwith accused Gulshan alias Gulsho in Crime No. 130/1988 Police Station, Shahdadkot. While perusing the record, it reveals that vide entry No. 27 dated 12.11.1988, ASI Javed Shah left the Police Station. Firstly he reached the village of accused Manjhi and according to the prosecution and mashirnama, the property in question was recovered at 8.30 a.m. form the heap lying in front of the house of the appellant/accused whereas co-accused Gulshan alias Gulsho was also with the police. The perusal of the mashirnma dated 12.11.1988 of Crime No. 135/1988 wherein the same ASI registered case against accused Gulshan alias Gulsho under section 13(e) Arms Ordinance, reveals that co-accused Gulshan produced one 12 bore gun alongwith four cartridges at 9 a.m. from the hedge of Dildar. In this case also witnesses are common and the mashirnama was prepared at 9 a.m. but surprising enough the distance has not been shown between the two villages as to how far the village Shahbazi Chandi is from the village of accused Manjhi. Admittedly it is the case of the prosecution that during the investigation in Crime No. 130/1988 both the accused Manjhi and Gulshan who were in custody volunteered to produce incriminating articles and led the police to their respective villages but in spite of that the Investigating Officer has violated the provisions of section 103 Cr.P.C. It is an established law that if the officer concerned is aware of the search before hand, he should arrange for the private person. Here not a single word has been uttered by the Investigating Officer as to whether he tried for the private person to act as mashir. On the other hand the perusal of the record reveals that he and mashir PC Abdul Ghafoor has given stereo­ type evidence in both the cases. Even the FlRs in both the cases being Crime No. 134/1988 and crime No. 135/1988 and mashirnamas of recovery in both the cases are stereo-type and identical. Reliance can be placed in this respect to a case Muhammad Azam v. The State PLD 1966 SC 67 where it was held that section 103 Cr.P.C. applies with full force when search is to be made of a place which is in a inhabited-locality. If place is known where search is to be made and that place is situated ia a locality which is-inhabited by the people then it is necessary to join two or more respectable persons from that locality to witness the search. In other words, if the place to be searched is already known and is situated in a locality which is inhabited, then it becomes mandatory for the Police Officer to join witnesses from the locality in the investigation and make search and recovery in their presence. In this case also the appellant/accused was already in police custody in Crime No. 130/1988 and according to prosecution he volunteered to produce the incriminating articles from his village, as such the police was aware of the place fromwhere they had to make search, well in time. As such it was incumbent upon the Investigating Agency to join two or more respectable persons to witness the recovery which they have failed and no explanation whatsoever has been given. The prosecution has failed to establish the exclusive possession of the hap of fodder as according to the prosecution, it was lying in front of the house .of the appellant/accused Manjhi. While in case of Gulshan alias Gulsho, it is stated that the incriminatings wereprpduced from the hedge of Dilawar house as such in both the cases exclusive possession is not there. Since the accused has been acquitted in the main crime and this is an off-shoot of the above cited crime and prosecution has miserably failed to associate the private mashir for the recovery and have violated the mandatory provision of section 103 Cr.P.C. I have already acquitted appellant/accused by my short order dated 29.2.1996 and these are the reasons for the same. (MSN) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1456 Present: MIAN MUHAMMAD AJMAL, J. ABDUL HAMEED-Petitioner versus STATE-Respondent Crl. Misc. No. 1090 of 1995, dismissed on 12.2.1996. Bail- —-S, 497 Cr.P.C.-Bail-Grant of--Prayer for-Offence U/A. 3/4 Prohibition (Enforcement of Hadd) Order, 1979--Petitioner claims to be Government servant, it is highly condemnable for a Government servant to associate and contribute in promotion of evil business of heroin for monetary return-Moreover, petitioner remained absconder for noticeable long period of 32 months, which disentitles him to concession of bail notwithstanding the merit of case-Since petitioner is involved in an offence which is against society at large and falls within prohibitory clause-Application rejected. [P. 1457] A Mr. Muhammad Ajmal Khan, Advocate, for Petitioner. Mr, Akktar Naveed, Advocate for State. Date of hearing: 12.2.1996. judgment Abdul Hamid accused-petitioner seeks bail in case FIR No. 89 dated 25.11.1992 Police Station Anti Narcotics Force, Peshawar charged under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979. 2. According to the FIR, Narcotics Staff of Peshawar on 25.11.1992 at 10.30 hours received information that huge quantity of heroin would be smuggled in Pajeero No. BB-5750 Karachi from Peshawar to Punjab via Kohat. On this tip of, they arranged Nakabandi on Kohat Road near Jangaly. In the meanwhile the said Pajeeio vehicle came which was stopped. The driver disclosed his name as Salim Khan son of Jumma Khan resident of Ziarat Wali Muhammad Baba Nauthia Peshawar and another person sitting with him disclosed to be Shah Nawaz alias Papu son of Allah Bakhsh, and during the search of the vehicle huge quantity of narcotics i.e. 55 K.Gs heroin was recovered from the said vehicle which had been concealed in secret cavities. The above two persons were arrested. 3. Accused-petitioner filed bail application in the Court of Dlaqa Magistrate which was rejected by City Magistrate, Peshawar vide his order dated 21.8.1995. Then he approached the Court of Sessions where too the said concession was refused by the learned Sessions Judge, Peshawar vide his order dated 14.9.1995. Hence the instant bail petition in this Court 4. I have heard the learned counsel for the accused-petitioner, the learned State counsel and have gone through the record of the case with their assistance. 5. No doubt the accused-petitioner is not charged in the FIR but during the investigation his co-accused Shah Nawaz in his confessional statement disclosed that he was employed as driver by the accused-petitioner on payment of Rs. 2.000/- per trip, whereafter he made two trips. On the eventful day he was given Pajeero Vehicle No. BB-5750 Karachi for taking it to Dara Adam Khel and was told that heroin has been concealed in it. But the vehicle was intercepted by Narcotics Police near Mattani wherefrom on search 55 K.Gs heroin was recovered. Petitioner in his statement recorded under section 161 Cr.P.C. also admitted that he used to supply drivers for every trip to Noor Feroz Shah alias Shahjee, a narcotic dealer, for which he used to be paid Rs. 7.000/- per trip. The material on the record show that despite the fact that the petitioner claims to be government servant, yet he has been actively indulging in promoting the ugly business of narcotics for money considerations. It is highly condemnable for a government servant to associate and to contribute in the promotion of evil business of heroin in one way or the other for monetary returns. The drug mafia by keeping itself off the scene, is extensively using the carrier and others for their ugly objectives, which tendency needs to be strenuously curbed. Moreover, the petitioner remained absconder for noticeable long period of about 32 months, which disentitles him to the concession of bail notwithstanding the merit of the case. Since the petitioner is involved in an offence which is against the society at large and falls within the prohibitory clause, hence this application is rejected. (M.S.N.) Application rejected.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1458 Present: RASHEED A. razvi, J. SHABBIR AHMED-Appellant versus STATE-Respondent Crl. Appeal No. 15 of 1994 accepted, on 30.5.1996. Pakistan Penal Code, 1860 (Act V of 1860)-- —S. 161 read with section 5(2) of Prevention of Corruption Act, 1947- Illegal gratification-Case of--Conviction for--Challenge to--None of witnesses have heard conversation .between complainant and appellant-­Appellant has given a reasonable explanation which has been supported by defence witnesses—Even if tainted money had been recovered from appellant that by itself is not sufficient to hold that same was received by appellant as illegal gratification-Evidence brought by prosecution is scanty, inconsistent and not confidence inspiring-Petition accepted, [P. 1461] A Mr. Shahadat Awan, Advocate, for Petitioner. Mr. Muhammad Iqbal, Advocate, for State. Dates of hearing: 10.7.199!) and 11.7.1995. judgment The appellant was convicted vide impugned judgment dated 12.1.1994 and was sentenced to suffer R.I. for a period of six months and to pay a sum of Rs. l.OOO/- as fine or in default of payment of fine to undergo further R.I. for a period of three months for the offence allegedly committed under section 161 P.P.C. read with section 5(2) Prevention of Corruption Act, 1947 by the Special Judge Anti Corruption (Provincial) Karachi. 2. According to the F.I.R., the complainant namely Habibullah S/O Saeed Ahmed is a Burmese Muslim and since 1970 he is residing in Korangi Karachi. That his cousin/sister Mst. Alfaraz Begum, a divorcee was married to one Nazarat Ali on 15.4.1988. It is alleged in the F.I.R. that the accused (appellant) who is a Head constable in Police resides in the neighbourhood of the complainant. That on coming to known that Mst. Alfaraz Begum has been remarried, he called the complainant at Police Station Korangi and told him that he indulged in selling women and that recently he sold one Alfaraz Begum to a Punjabi man namely Nazarat Ali. The complainant denied such allegations and showed a valid Nikahnama and order of the Family Court showing dissolution of earlier marriage of the said woman. It is further alleged in the F.I.R. that the appellant was not satisfied and he demanded Rs. l.OOO/- as illegal gratification for disposing of the complaint The complainant asked for some time to meet his demand. Accordingly, on 23.5.1988 F.I.R. bearing No. 80/1988 was lodged with the Anti Corruption Establishment, Karachi. 3. The trap could not be arranged till 26.5.1988 when at about 10.00 a.m. the same was arranged and one Magistrate and the police party took position in the house of the complainant whereas the complainant and mashir took position in the street near the house of complainant. At about 10.15 a.m. the appellant came there on a motor bike alongwith his wife who is also a lady constable and was in uniform. There was some exchange of conversation and then the complainant passed on the tainted currency notes to the appellant who accepted the same and put it in the pocket of his short. Immediately mashir Allah Bus gave signal and the trap party reached to the appellant and surrounded him. Upon the search of the accused tainted money was recovered and a masiiirnama was prepared on the spot. 4. Prosecution has examined P.W. -1 Habibullah (complainant) as Ex-4, P.W-2 Rasool Bux (Magistrate) as Ex-7, P. W-3 Nazarat Ali (mashir) as Ex-15 and P.W-4 Sub Inspector Masood Ahmed (I.O.) as Ex-16. Appellant was examined under section 342 Cr.P.C. who denied the prosecution allegation. He also denied to have demanded any illegal gratification from the complainant. He has admitted to have received a sum of Rs. l.OOO/- from the complainant on the date and place as alleged by the prosecution. The explanation extended by the appellant is that this was the return of the loan amount which the complainant had earlier obtained from the appellant. That on the date of alleged incident while he was going to drop his wife at Police Station Defence he was stopped by the complainant who returned him the loan amount and thereafter he was apprehended by the anti corruption police. He has disclosed motive of his false involvement in this case as he was pressing hard the complainant for return of this amount. The appellant has also produced D.W-1 Jaffar Ahmed as Ex-23 and D.W-2 Ishaque as Ex-26 in his defence. The learned trial Court framed only one point for determination which is as follows:- "Whether the accused had received the sum of Rs. 1,000/- from the complainant as the amount of loan allegedly given by him to the complainant in 1987?" 5. I have heard Mr. Shahadat Awan, Advocate for the appellant and Mr. Muhammad Iqbal Chaudhry, Advocate for the State. Learned counsel appearing for the state, in support of impugned judgment has referred to section 4 of Prevention of Corruption Act, 1947 and argued that once recovery of tainted money was admitted by the appellant, the prosecution is relieved of its burden and the impugned judgment is, therefore, proper in the circumstances of the case. In my view the presumption imposed in section 4 of the Prevention of Corruption Act is not unrebuttable which can be rebutted by the statement of accused or by the circumstances of the case. The burden is still on the prosecution to prove beyond reasonable doubt that the tained money was passed on to the accused and the same was recovered from his personal search. In this connection reference can be made to the cases of Sultan All v. The State (PI J) 1971 Karachi 78), Kazi Nizamuddin v. The State (PLD 1979 Karachi 294) and Abdul Razak Rathore v. The State (PLD 1992 Karachi 39). 6. Mr. Shahadat Awan, Advocate for appellant has argued that admittedly the raiding party has not seen passing of tainted money nor have heard conversation between the complainant and the appellant According to the learned counsel for the appellant this creates doubts in the prosecution case and the impugned conviction is not sustainable. He has referred to the following cases:- (i) Allah Din and another v. The State (1975 P.Cr.L.J. 1289); (ii) Noor Ahmad v. The State (1991 P.Cr.L.J. 1015); (iii) Ghulam Rasool v. The State (1994 P.Cr.J. 120); (iv) Nazir Ahmad v. The State (1988 P.Cr.L.J. 120); and (v) Muhammad Akhtar Siddiqui v. The State (1994 MLD 2029). 7. The superior Courts have never sustained a conviction in an anti corruption case where the Magistrate was not able to hear the conversation between the complainant and the accused nor in a case where the Magistrate was not able to see passing of tainted money from the complainant to the accused. In the instant case, it is an admitted fact that P.W. 2 was sitting in the house of the complainant and came out after he received signal from the concerned mashir. By that time the conversation between the complainant and the appellant was concluded and the tainted money had already passed. Therefore, in my considered view this is not sufficient piece of evidence to sustain the conviction ordered by the learned trial Court 8. In the case of Bashir v. The State (1968 P.Cr.L.J. 670), the Magistrate who was supervising the trap as well as the other raiding party did not state at trial about passing of money nor heard conversation between the complainant and the accused. Benefit of doubt was extended and the accused was acquitted. In the case ofArshad Mirza v. The State (PLD 1988 Lahore 640), the transaction regarding payment of illegal gratification was neither seen nor the conversation between the complainant and accused was heard by the raiding party and, therefore, the conviction was set aside. In the case of Muhammad Ahhtar Siddiqui v. The State (1994 MLD 2029) a learned single Judge of Lahore High Court Mr. Raja Afrasiyab Khan, J. (as his Lordship then was) allowed the appeal and set aside the conviction order after considering the cases of Muhammad Tahir v. The State (1992 P.Cr.L.J. 490), Nazir Ahmad v. The State (1988 P.O.L.J. 775) and Tariq Mahmood v. The State (1985 P.Cr.L.J. 1105). Following is the relevant portion of the said reported case:- " the prosecution had to prove that the members of the raiding party not only saw the payment of the tainted money to the accused but also overheard the conversation between the bribe-giver and the bribe-receiver. In my view, the prosecution evidence does not inspire confidence in these circumstances. It is, therefore, nut at all worth-credence " 9. After exclusion of the evidence of P.W 2 and P.W. 4 the only evidence remained in the field is of mashir Nazarat Ali who is the same person to whom Begum Alfaraz was married with. In his cross examination he has admitted that the complainant had informed him regarding his harassment by the appellant He has also admitted that he was not able to hear the conversation between the complainant and the accused. He has simply witnessed passing of tainted money. Therefore, his evidence is also of no wroth to sustain a conviction. On the question of solitary evidence of the complainant, Mr. Shahadat Awan, Advocate for the appellant has cited an unreported case of Inayat Masih v. The State (Cr. Appeal No. 9/1993) where a learned single Judge of this Court after referring to the cases of Muhammad Ramzan v. The State (NLR 1990 Criminal 415), Noor Ahmad u. The State (1991 P.Cr.L.J. 1015) and Malik Zafar v. The State (1989 MLD 4215) held that it would not be safe dispensation of justice to base conviction on the evidence of such interested witness. Appeal was allowed and the conviction was set aside. 10. In the instant case, none of the witnesses have heard the conversation between the complainant and the appellant. The appellant has given a reasonable explanation which has been supported by the defence witnesses. Even if the tainted money had been recovered from the appellant that by itself is not sufficient to hold that the same was received by the appellant as illegal gratification. The evidence brought by the prosecution is scanty, inconsistent and not confidence inspiring. In my view the case against the appellant was not proved beyond shadow of doubt. 11. On 11.7.1995, through a short order, this appeal was allowed and the conviction and sentence awarded by the learned trial Court vide impugned judgment dated 12.1.1994 was set aside. The bail bonds of the appellant was cancelled and the surety was discharged. Above are the reasoning for the said short order. (K.K.F.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1462 Present: KHALID PAUL KHWAJA, J. JAVAID IQBAL and another-Petitioners versus STATE-Respondent Crl. Misc. 1417-B/96, accepted on 18.6.1996. Bail- —-S. 497 Cr.P.C.-Bail-Grant of--Prayer for«Offence U/Ss. 302/460/34 PPC--An Extra-judicial confession is inadmissible in evidence and has no evidentiary value--PW's had given affidavits before Addl. Sessions Judge during hearing of bail application that they did not known anything about occurrence and had not made any statement before police about last seen evidence-Case has been investigated thrice by various police officers have declared petitioners innocent-Held: There are sufficient grounds for further inquiry-Bail granted. [P. 1463] A & B M/s M.A. Zaffar and Akhtar Mi Qureshi, Advocate for Petitioner. Nemo for State. Mr. S. A Rizvi, Advocate, for Complainant. Date of hearing: 18.6.1996. order On 11.8.1995 at Police Station Nishatabad, Faisalabad a case under Section 302 PPC was registered at the instance of Muhammad Yasin complainant about the murder of his son Muhammad Rafique. According to the FIR the dead-body of Muhammad Rafique was found in an Ihata behind a shop. The dead-body had blunt and sharp edged weapon injuries on it. The complainant did not express any suspicion against anybody. 2. Later on during the investigation Javaid Iqbal and Muhammad Altaf Hussain accused were arrested and evidence was collected to the effect that they alongwith their co-accused Khalid Mahmood had murdered the aforementioned deceased. Sections 460 and 34 PPC were added. 3. Javaid Iqbal and Muhammad Altaf Hussain accused, petitioners herein, who were arrested on 2.10.1995, have applied for their bail. 4. I have heard the parties' learned counsel and have also gone through the record. 5. The evidence on record against the petitioners and Khalid Mahmood co-accused is to the following effect:- (i) that they had made extra judicial confession before Muhammad Hussain and Muhammad Malak PWs; and (ii) that Ali Akbar and Ghulam Sarwar PWs had seen the petitioners and Khalid Mahmood aforesaid near the place of occurrence on the fateful night. 6. Statements of Muhammad Hussain and Muhammad Malik PWs reveal that the three accused had made a joint extra judicial confession before them. It goes without saying that such an extra judicial confession is inadmissible in evidence and has no evidentiary value. 7. As regards the evidence of Ali Akbar and Ghulam Sarwar PWs, earned counsel for the petitioners has maintained that it cannot be taken as last seen evidence because the accused persons had not been seen by the said PWs with the deceased near the place of occurrence at or about the time of occurrence. Additionally the aforesaid PWs had given affidavits before the learned Addl. Sessions Judge during the hearing of the petitioners' bail application that they did not know anything about the occurrence and had not made any statement before the police. The material available on record, therefore, does not connect the petitioners with the offence charged against them. Even otherwise the case has been investigated thrice by various police officers and all of them have declared the petitioners innocent. Shajar Abbas Inspector SHO was the first Investigating Officer, then the investigation was conducted by Mukhtar Ali and Zulfiqar Ali Inspectors of Range Crime Faisalabad and lastly by D.S.P. of Crime Branch Sarfraz Mahmood Khan Lodhi. All of them have not exist to believe that the petitioners are guilty of the offence charged against them and therefore there are sufficient grounds for further inquiry. Consequently, they are entitled to the concession of bail. They are admitted to bail in the sum of Rs. 20.000/- each with one surety each in the like amount to the satisfaction of the Ilaqa Magistrate, Faisalabad. (M.S.A.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1463 Present: ali muhammad balouch, J. NADEEM-Applicant versus STATE-Respondent Crl. B.A. No 134 of 1996, accepted on 30.5.1996. (i) Bail- —-S. 497 Cr.P.C.-Bail--Grant of-Prayer for--Caused damage to property and took away articles-Allegation of—Applicant vicariously liable for offence-Since participation of applicant requires further inquiry vicarious liability will be subservient to such findings after further inquiry. [P. 1465] A (ii) Bail- —-S. 497 Cr.P.C.~Bail~Grant of-Prayer for~Caused damage to property and took away articles-Allegation of--It is now well settled principle of law that if otherwise applicant is found entitled to be released on bail, this facility shall not be withheld merely because of absconsion~It has not been shown that applicant has been declared as proclaimed offender— Unless, such action is taken, abscondance could not be said to come in way of grant of bail to applicant if he is otherwise found to such concession-Bail granted. [Pp. 1465 & 1466] B Mr. LA Hashmi, Advocate, for Applicant. Mr. Habib Ahmed, Advocate, for A.G, for the State. Date of hearing: 30.5.1996. order This case has been referred to me as a 3rd Judge after my learned brother Nazim Hussain Siddiqui. J, while deciding this bail application, sitting in Division Bench passed an order on 24.4.1996 granting bail to the applicant and my learned brother Hamid Ali Mirza, J., the second member of the D.B. differed with the opinion of Mr. Nazim Hussain Siddiqui. J, and rejected the bail application of the applicant. I had the privilege of going through the two judgments, and have also heard the learned counsel. The facts of the case are elaborately mentioned in the two judgments and need not be re-produced in this order. In this case co-accused Dr. Farooq Sattar, M.P.A., Muhammad Haroon Siddiqui, M.P.A., S.M. Mohiuddin, M.P.A. Dr. Saghir Ahmed, M.P.A. and Waseem Akhtar, M.P.A. had been granted bail by the trial Court. My learned brother Nazim Hussain Siddiqui. J, granted bail to the applicant on the principle of consistency holding that the case of the applicant is similar to the case of the 5 MPAs: who have been granted bail by the trial Court. My learned brother Hamid Ali Mirza. J, however did not agree and has in his judgment held that the rule of consistency in the present case would not be available to the present applicant as the coaccused, MPAs; who had been granted bail by the trial Court Were not named in the FIR while the present applicant was named in the FIR. The -—- second consideration on which my learned brother Hamid Ali Mirza. J, has dismissed the bail application was the circumstances that applicant had been absconding for 15 months and had not joined the investigation. As far as the finding of my learned brother that the principle of consistency was not attracted in this case, I agree with him, but his opinion in not allowing bail to the applicant on the ground of his absconsion is not subscribed by me. While hearing the arguments of the learned counsel reference was made to the 161 Cr.P.C. statements as well as the contents of the FIR. As per FIR on 1.5.1994, on a strike call given by M.Q.M. officials, in defence of the order U/S. 144 Cr.P.C., strike was observed. MQM, MPAs; had assembled at 9 and had drawn a plan on account of which law and order situation was created. Sophisticated weapons were used and properties were set on fire. The culprits also attacked the police and, one of the policeman by name Nadeem, who was driving a police mobile, received injuries when the wind screen of the vehicle was smashed by firing. Nadeem was injured by the splinters of the wind screen. 4 persons were arrested, they were Muhammad Kamran, Abdul Rahim, Muhammad Saghir and Shahzad Alam. The present applicant alongwith others namely Aslam Sabzwari, Rashid Sabzwari, Muhammad Kamran, Muhammad Fruitwala, Abdul Rahim, Murtaza, Faisal, Suleman, Nadeem Gulfarosh (the applicant), Haroon Ikhlaq, Ibrar Langra, Ibrar Nata, Akhtar, Kamil, Anjum and some 250/300 other persons had caused damage to a utility sotre and took away the articles and caused other damage at different places. The 161 Cr.P.C. statements of Police Constable Nadeem as well as the other eye-witnesses including A.S.I. Malik M. Akram and A.S.I. Suleman Waheed, were recorded. The present applicant has not been assigned the specific role of having caused the particular damage or used a particular weapon or damaged the particular property. The role assigned to the MPAs. in the FIR was that they had planned to cause the damage to the properties and cause firing on the policemen and vehicles, through their activists. Therefore, I am clear in my mind that the role assigned to the MPAs is not similar to the one assigned to the present applicant in the prosecution stroy. Therefore, I do not find myself in agreement with the opinion of my learned brother Nazim Hussain Siddiqui, J. that the rule of consistency is attracted. However, at the same time I find that the applicant is entitled to be released on bail on a different ground i.e. case against him requires further inquiry as to find out his participation in the alleged crime as according to the witnesses they had learnt about the name of the applicant to be one of the miscreants, who were causing the fire and damage, after the 4 persons were arrested on the day of incident. Apparently the eye-witnesses have to come out with clear statement in the Court as to who identified the applicant and how the received his name which factor is the one which requires further inquiiy. I, therefore, find that the applicant is entitled to be released on bail on the same terms which had been set-forth in the order of my learned brother Nazim Hussain Siddiqui, J. In view of the fact that I had held this case to be of further inquiiy I need not go further to discuss the cases relied upon by my learned brother Hamid Ali Mirza. J, as he has found the applicant vicariously liable for the offence. Since the participation of the applicant requires further inquiiy the vicarious liability will be subservient to such finding after the further inquiry. Lastly, my learned brother Hamid Ali Mirza, J. has relied upon a circumstances of the absconsion of the applicant. It is now well settled principle of law that if otherwise the applicant is found entitled to be released on bail, this facility shall not be withheld merely because of the absconsion. Besides, in this case it has not been shown that the applicant has been declared as proclaimed offender. Unless such action is taken, abscondance could not be said to come in the way of grant of bail to the applicant if he is otherwise found entitled to such concession. Consequently as a result of going through the two judgments and hearing arguments of the learned counsel and going through the investigation record, I find the applicant to be entitled to bail and therefore support the conclusion arrived at by my learned brother Nazim Hussain Siddiqui, J., and disagree with the conclusion of my learned brother Hamid Ali Mirza. J. (K.K.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1466 [Circuit Bench Abbottabad] Present: sardar muhammad raza, J. ABDUL QADDUS-Petitioner versus ABDUL RASHID and STATE-Respondents Cr.M. No. 28 of 1996, dismissed on 20.6.1996. Bail-- —S. 497/498 Cr.P.C.-Bail-Grant of--Prayer for--Quinary murder- Offence U/S. 302/34 PPC-It was a brutal act of indiscriminate killing of innocent h'ves which is re-inforced by a very strong and proved motive, in addition to inculpatory confession of co-accused which stands supported by ventual recoveries-Complete challan already stands submitted- Summons were issued to accused-Proceedings U/S. 265-C Cr.P.C. stood complied with-Charge stood framed-Case was fixed for evidence of prosecution-Bail rejected. [P. 1467] A & B Sardar Abdul Rauf, Advocate, for Petitioner. Tahir Hussain Leghmani, AAG, for State. Khalid Rehman Qureshi, Advocate, for Complainant Date of hearing: 20.6.1996. judgment Five murders had taken place in the past mid-night of 30.8.1995 in the house of Abdul Rashid s/o Gul Zaman, the complainant, in village Dhok Ghakhran, 17/18 kilometers from Police Station Khanpur. 2. Abdul Rashid while lodging the report in the shape of 'murasila', subsequently incorporated into FIR No. 212, did not name the assailants and was not very certain about them. Anyhow, he disclosed that in the year 1983 he was convicted for the murder of one Nasir s/o Azim in which he had served the sentence and also that he was convicted for the murder of one Gulshan in the year 1977 in which too he had served the sentence. 3. Upon disclosure of such motive the investigation proceeded and on 9.9.1995, a person named Habib was arrested, who on the same day made a statement before the Police admitting his involvement in the crime alongwith the present petitioner Abdul Qaddus and others. He led to the recoveries of crime weapons on 11.9.1995 and thereafter confessed his guilt in a confession before Magistrate on 12.9.1995. He involves Abdul Qaddus petitioner who happens to be the real brother of Nasir who was murdered in the year 1983 by the present complainant. 4. Abdul Qaddus is refused bail by the forums below and hence this application. 5. Sardar Abdur Rauf learned counsel for the petitioner alleged that Abdul Qaddus petitioner is attributed no active role in the commission of offence, that no recovery has been effected from him or at his instance and that he is involved only on the confessional statement of the co-accused Habib which is not admissible qua the petitioner. 6. Mr. Khalid Rehman learned counsel for the complainant alleged that it was a brutal act of indiscriminate killing of innocent lives which is re inforced by a very strong and proved motive, in addition to the inculpatory confession of Habib co-accused which stands supported by the eventual recoveries. The learned counsel as well as Mr. Tahir Hussain Lughmani, learned Assistant Advocate General, referred to rulings as well in support of the fact that, in the circumstances, an inculpatory confessional statement of a co-accused can also be used against the other accused. 7. Apart from all the assertions and counter assertions aforesaid, one should not loose sight of the fact that in this quinaiy murder any opinion expressed regarding the above facts would seriously affect the opinion of the trial Court. The complete challan already stands submitted in the trial Court on 19.2.1996. ummons were issued to the accused for 13.3.1996. Proceedings U/S. 265-C Cr.P.C. stood complied with on 1.4.1996, the charge stood framed on 24.4.1996 and the case was fixed for evidence of the prosecution on 12.6.1996 but it went futile because of the present application. 8. At this stage it would not at all be advisable to make any comments on such delicate issue when a trial of five persons has already commenced. Rather, the making of application and delaying of trial is most likely to affect the witnesses. The Supreme Court also had discouraged such grant of bail in PLD 1989 SC 585-C and 1989 SCMR 2063. 9. In the circumstances the application is rejected. The office is directed to send the file to the trial Court positively within a week so that the trial is not delayed. (M.S.N.) Bail rejected.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1468 [Rawalpindi Bench] Present: muhammad asif jan, J. MUHAMMAD SIDDIQUE-Petitioner versus STATE-Respondent Crl. Misc. No. 374/B-1996, accepted on 26.5.1996. Bail— S. 497 Cr.P.C.--Bail--Grant of--Prayer for-Offence U/Ss. 302/34 PPC- Only allegation against petitioner is that he exhorted co-accused to open fire-Said allegation commonly referred to as "Proverbial Lalkara"— There is no hard and fast rule that bail must always be granted when only allegation against an accused is that of La/&ara--Overwhelming and consistent view of their Lordship's of Supreme Court has been that in such cases bail is normally granted-Reasonable grounds to believe that petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, prima facie do not seem to exist-- Caseprima facie seems to be a case of further inquiry within meaning of sub-section (2) of Section 497 Cr.P.C.-Bail granted. [P. 1469] A, B, C & D Malik Rab Nawaz Noon, Advocate, for Petitioner. Sardar Muhammad Ishaq Khan, for Complainant Sardar Muhammad Ayyub Kiani, Advocate, for State. Date of hearing: 26.5.1996. order Muhammad Siddique petitioner was arrested on 17th of February, 1996, because of a case registered against him and two others vide F.I.R. No. 21 dated 2.2.1996, registered at Police Station Kalar Sayedan, District Rawalpindi, under Sections 302/34 of P.P.C., regarding an occurrence which took place on the same day at 3.30 p.m. in the area of Chowk Pindori which is about 7 miles from Police Station Kalar Sayedan where the F.I.R. was lodged at 4.15 p.m. by complainant Amjad Hussain regarding the death of Tazarab Hussain deceased who died at the spot. 2. According to the prosecution, co-accused Muhammad Bashir was armed with 30 bore pistol, while co-accused Muhammad Yousaf who has already been allowed bail by the Sessions Court and Muhammad Siddique petitioner were empty handed. Co-accused Muhammad Bashir fired with his pistol at Tazarab Hussain deceased and hit him on the left side of the front side of the chest as a result of which Tazarab Hussain deceased died at the spot. The Post Mortem Report as well as the sikagram show only one fire arm wound of entry on the left side of the front of the chest. 3. The only allegation against Muhammad Siddique petitioner is that he exhorted co-accused Muhammad Bashir to open fire. The said allegation is now commonly referred to as "Proverbial Lalkara" because of the phrase having been used by my Lord Mr. Justice A.R. Cornelieous, the then Chief Justice of Pakistan in the case of Abdul Aziz vs. Bashir reported in PLD 1966 S.C. 658. 4. Although, there is no hard and fast rule that bail must always be granted when the only allegation against an accused is that of "Lalkara" as held by their Lordship's of the Supreme Court in the case of Chiragh Din and others vs. The State (PLD 1967 S.C. 340) and Mubarik Shah vs. The State (1986 SCMR 1681) yet eversince the decision delivered in the case of Abdul Aziz vs. Bashir reported in PLD 1966 S.C. 658, the overwhelming and consistent view of their Lordship's of the Supreme Court has been that in uch cases bail is normally granted. Reference in this context may usefully be made to the cases of Amanat AH vs. The State (1993 SCMR 1992) and Rafiq Khan vs. The State (1995 SCMR 343). 5. Reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years, prima facie do not seem to exist. The case against the petitioner prima facie seems to be a case of further inquiry within the meaning of sub­ section (2) of Section 497 of Cr.P.C. which entitles the petitioner to the grant of bail. 6. Resultantly, the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Trial Court. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C (Lahore) 1469 [Rawalpindi Bench] Present: MUHAMMAD ASIF jan, J. HUBDAR HUSSAIN SHAH and another-Appellants versus STATE-Respondent Crl. Appeal No. 21 of 1992, partly accepted on 26.5.1996. Pakistan Penal Code, 1860 (Act XLV of 1860)- —S. 302/34-Murder-Offence of--Conviction for--Challenge to-Motive asserted by prosecution has been disbelieved by trial court-Recoveries have also been held to be of no significance-There is a delay of about 56 hours in lodging FIR for which there seems to be no plausible explanation—Held: Ends of justice would be secured if sentence of appellants is reduced to that which they have already undergone-Appeal partly accepted. [P. 1471] A, B, C & D Sardar Muhammad Ishaq Khan, Advocate, for Appellant. Raja M. Imtiaz, Advocate, for State. Date of hearing: 26.5.1996. judgment Hubdar Hussain Shah, aged 23 years and his brother Bakht Bedar Hussain Shah, aged about 28 years, were convicted by an Additional Sessions Judge of Chakwal, vide judgment/order dated 15th of January, 1992, under Sections 304/34 of P.P.C. and also under Section 323 of P.P.C. The appellants were sentenced to 10 years Rigorous Imprisonment under Sections 304/34 of P.P.C. A fine of Rs. 10,000/- was also imposed and in case of default in payment of fine, the appellants were ordered to undergo further E.I. for one year. The appellants were sentenced to one year R.I. under Section 323 of PPC. Both sentences were ordered to run concurrently. The fine if realised was ordered to be paid to the legal heirs of Liaqat Hussain Shah, deceased. However, the benefit of Section 382-B of Cr.P.C. was given by the Trial Court to the appellants. 2. Co-accused Dildar Hussain Shah, the third brother of the appellants, alongwith their father Munir Hussain Shah and a relative, namely, Qarar Hussain Shah, were acquitted by the Trial Court. 3. The occurrence took place on the 15th of August, 1986 at "Peshi Waila" (about 2.00 p.m.) in the area of village Sayedan Rahna which is about 9 miles from Police Station Kalar Sayedan of District Chakwal. The First Information Report (Ex. P-A) was lodged after about 56 hours on the 17th of August, 1986 at 11.45 p.m., under Sections 307,147/148 of P.P.C. 4. Liaqat Hussain Shah, deceased, a young lady of about 14 or 15 years and a first Cousin of the appellants died on the 17th of August, 1986 at 6.50 p.m. in the District Head Quarters Hospital of Rawalpindi. Subsequent to the death of Liaqat Hussain Shah, Section 302 of P.P.C. was added in the FIR the next morning i.e. on the 18th of August, 1986. The FIR was lodged by Amir Hussain Shah (PW. 1) father of Liaqat Hussain Shah deceased and was recorded by A.S.I. Manzoor Hussain (PW. 17). 5. The occurrence was witnessed by Amir Hussain Shah (PW. 1) father of Liaqat Hussain Shah, deceased, Dilawar Hussain Shah (PW. 2) brother of the deceased and Muhammad Akhtar (PW. 3) also related but the exact relationship is not in evidence. Besides, two other persons, namely, Sigbatul Hassan and Inam-ul-Hassan also saw the occurrence ut were not produced at the trial and were given up by the prosecution as being "unnecessary". 6. Hubdar Hussain Shah appellant was arrested on the 19th of August, 1986 and a club "Danda" P.4 was recovered at his instance vide recoveiy memorandum Ex. PF on the 26th of August, 1986. The said recovery was witnessed by Anwar Hussain Shah (PW. 11) and Inspector Muhammad Aslam Khan (PW. 18) besides one Naseem who was given up as being "unnecessary" by the prosecution. 7. Bakht Bedar Shah appellant was arrested on the 28th of September, 1986 and a club "Danda" was recovered vide recovery memorandum Ex. PH. The club "Danda" was not produced in Court by the rosecution during the trial. However, the recovery memorandum Ex. PH was signed by Syed Nazir Hussain Shah (PW. 13) and Inspector Muhammad Aslam Khan (PW. 18) besides one Syed Shujat Hussain Shah who was given up by the prosecution as being "unnecessary". 8. The motive for the occurrence was stated to be an old enmity between the two families resulting in blood feud. Dilruba Hussain Shah son of complainant Amir Hussain Shah (PW. 1) appeared as a prosecution witness against the Uncles of the present appellants. However, the motive asserted by the prosecution has been disbelieved by the Trial Court. 9. The recoveries have also been held to be of no significance by the Trial Courts. 10. There is a delay of about 56 hours in lodging the F.I.R. for which there seems to be no plausible explanation and therefore, the Trial Court has not believed the explanation given by the prosecution. It seems that the F.I.R. was lodged after the death of Liaqat Hussain Shah deceased. 11. The accused persons pleaded total denial except Bakht Bedar Shah appellant who admitted having caused injuries to Liaqat Hussain Shah, deceased, as a result of which two teeth of Liaqat Hussain Shah were broken. 12. It is in evidence that a compromise between the families was arrived at on the next day of the occurrence i.e. on the 16th of August, 1986, and on the same day, two similar teeth of appellant Bakht Bedar Shah were extracted by Dr. Qazi Abdul Raouf (PW. 4). It is also in evidence that Dr. Qazi Abdul Raouf (PW. 4) was hesitant to carry out the extraction and was pursuaded to do so by Muhammad Irshad (PW. 14). Thus, according to the family compromise, the Qisas has already been executed. 13. The Appellants have already undergone 4 years and 3 mont s R.I. and with remission, the sentences already served by the appellants would work out to be about 6 years. Keeping in view, the facts and attendant circumstances of this case, the ends of justice would be secured if the sentence of the appellants is reduced to that which they have already undergone. 14. Resultantly, this appeal is partly accepted. The sentence of the appellants is reduced to that which they had already undergone. The sentence of fine is set aside. The appellants are on bail their bail bonds are discharged. CM.S.N.) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C (Lahore) 1472 Present: KHALID PAUL KHWAJA, J. MUHAMMAD BOOTA etc.--Petitioners versus STATE-Respondent Crl. Misc. No. 968-B of 1996, accepted on 14.5.1996. Bail before arrest- —S. 497/498--Bail before arrest-Grant of--Prayer for--Offence U/S. 354, 337-FQ), 337(F) (iii) and 337-L (2) read with Section 34 PPC— Statements do not show that any accused had raised a lalkara to kill Mst. Munawar Bibi or she was dragged in wagon or there any attempt to abduct her—Neither Mst. Munawar Bibi nor other eye-witnesses explain injury which she suffered on her leg described as Mutalahimah punishable u/S. 337-F (iii) PPC-Victim in her statement U/S. 161 Cr.P.C. had not mentioned that her clothes had ever been torn- Petitioners were declared innocent by police-Held: It is fit case for bail before arrest-Bail granted. [P. 1474] A, B & C Mr. Arshad Mubin Anwari, Advocate Petitioners. M/s R. A. Awan and S.M. Shad, Advocate for Complainant Mr. Aziz Ahamd Chughtai, Advocate for State. Date of hearing: 14.5.1996. order On 7.9.1995 at Police Station Manga Mandi, Lahore a case under Sections 354, 337-F (i), 337-F (iii) and 337-L (2) read with Section 34 PPC was registered against Muhammad Boota and his son Muhammad Yaqoob at the instance of Muhammad Bashir complainant. It was alleged that on 6.9.1995 Mst. Munawar Bibi the sister of the complainant It was alleged that on 6.9.1995 Mst. Munawar Bibi the sister of the complainant boarded a wagon from village Manoo Dogar to go to Sundar for the purpose of shopping. Muhammad Boota and Muhammad Yaqoob accused also boarded the said bus and started hurling filthy abuses to her. Then at the instance of his father Muhammad Yaqoob accused started giving fist blows to her. Muhammad Boota accused exhorted his son to strangulate her. Thereafter, Muhammad Yaqoob aforesaid caught her from her legs and started dragging her. They tried to take her out of the wagon in order to abduct her but the complainant and some passers-by rescued her. In the meantime Mst. Munawar Bibi aforesaid who had sustained injuries became unconscious. She was taken to the hospital where she was medically examined. 2. Apprehending their arrest the accused moved an application for their pre-arrest bail in the Sessions Court Lahore but the same was dismissed vide order dated 26.9.1995 passed by the learned Additional Sessions Judge, Lahore. On 8.10.1995 they approached this Court for the grant of pre-arrest bail. They were admitted to interim bail before arrest. On 3.12.1995 the said bail application (Crl. Misc. No. 4156-B of 1995) was disposed of through the following order:- "Sahibzada Khalid Khurshid D.S.P Cantt. states that he has also investigated the case and has found the reports of the previous investigating officers to be correct whereunder the case was cancelled. In this view of the matter when the case has already been cancelled this application for bail before arrest has become infructuous and therefore, is disposed of." 3. Later on, on 25.1.1996 the accused moved another application (Crl. Misc. 278-B of 1996) for their anticipatory bail stating that they were again being dragged into the case on the report of the Superintendent of Police. They were admitted to interim bail but the said bail application was dismissed for non-prosecution vide order dated 25.2.1996. Subsequently however, it was found that neither the petitioners nor their learned counsel had any notice of the said date. Consequently they moved the instant bail application (Cr. Misc. No. 968-B/96) for their bail before arrest. 4. I have heard the parties' learned counsel and have also gone through the record. 5. Admittedly the offences charged against the accused under Sections 337-F (i), 337-L (2) and 354 PPC are bailable. The offence under Section 337-F (iii), however, being punishable, with three years' imprisonment is not bailable. 6. The medico legal report of the injured PW shows that she had sustained six injuries in all which were located on her neck, arms and right leg. Injury No. 6 (on right leg) was declared as Mutalahimah punishable under Section 337-F (iii), injury No. 5 (on upper right arm) was declared as Damiyah under Section 337-F (i) while injuries Nos. 1 to 4 were declared to be other hurts falling under Section 337-L (2). 7. Learned counsel for the accused has contended that his clients had been falsely implicated in the present case and the police due to malafides was bent upon to arrest and humiliate them. On the other hand learned counsel for the State and that of the complainant have vehemently opposed the bail application and have maintained that it was not a fit case for pre-arrest bail. 8. According to the prosecution case the occurrence had taken place in a wagon and had been witnessed by Bashir Ahamd complainant, Boota and Muhammad Anwar besides Mst. Munawar Bibi the victim. Learned counsel for the accused has submitted that all these witnesses were false witnesses who had tried to make a mountain out of a molehill. He pointed out that from the statements of Boota, Muhammad Anwar and Mst. Munawar Bibi aforesaid it is not shown that the complainant was also present in the wagon and had witnessed the occurrence. The statements of the aforesaid witnesses show that Mst. Munawar Bibi and Muhammad Boota accused had exchanged abuses on which the latter had slapped the former and that when the wagon stopped Muhammad Yaqoob accused caught hold of Mst. Munawar Bibi from her hair and neck and tried to take her out of the wagon. Statedly he also gave fist blows to her. These statements do not show that any accused had raised a Lalkara to kill Mst. Munawar Bibi or she was dragged in the wagon or there any attempt to abduct her. Interestingly neither Mst. Munawar Bibi nor the other eye witnesses explain the injury which she suffered on her leg described as Mutalahimah punishable under Section 337-F (iii) PPC. The investigating agency has now (on 9.4.1996) taken into possession the torn clothes of Mst. Munawar Bibi and in this connection has also recorded the statements of some witnesses. In her statement under Section 161 Cr.P.C. dated 28.9.1995 the victim had not mentioned that her clothes had ever been torn. 9. Learned counsel for the complainant maintained that the accused were desperados, that they had been declared proclaimed offenders and that since the police had no malafides against them they were not entitled to the concession of bail before arrest. Learned counsel showed me uncertified opies of a few FIRs relating to the years 1971 and 1979 to show that Muhammad Boota accused was involved in various cases of theft and illicit arms. He, however, did not know if the said Boota had ever been convicted in the said cases. In the recent investigation of this case on 7.3.1996 the accused were declared as proclaimed offenders and a proclamation under Section 87 Cr.P.C. was issued. It is abundantly proved that all along the accused had been associating with the investigation of the case and therefore, they were declared innocent by Muhammad Naeem SHO and Khalid Khurshid DSP Cantt. and on their reports the case was recommended to be cancelled. They had appeared before this Court for their pre-arrest bail and were pursuing their applications for anticipatory bail since 8.10.1995. In this view of the matter learned counsel for the accused partly remarked that he could not have a better proof of the malafides on the part of the police. 10. In view of what has been stated above I am of the opinion that it is a fit case for bail before arrest. Consequently interim bail before arrest granted to the accused vide order dated 10.3.1996 is confirmed. (M.S.N.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1475 Present: shafi muhammadi, J. BAKHTAWAR and another-Applicants versus STATE-Respondent Bail Application No. 795 of 1994, accepted on 19-4-1995. Bail- S. 497/478 Cr. P.C.-Bail-Grant of-Prayer for-Offence U/S. 302/324/34 Qisas and Diyat Ordinance read with 13-D Arms Ordinance, 1965— Statement of only eye-witness has not supported prosecution case by resiling from his previous statement-Applicants are in custody since their arrest i.e. January 1993 till 30.3.1995—Nothing has been brought on record to show whether death of deceased took place on account of injuries alleged to have been caused by one of applicants or due to improper medical treatment because deceased remained in hospital for about 10 months for his treatment-It is a case of further enquiry attracted by subsection (2) of section 497 Cr. P.C.-Bail granted. [P. 1478 & 1479] A, B, C & D Mr. Habibullah Samro, Advocate for Applicants. Mr. Naqi Mirza and Mr. Khursheed A Hashmi, Advocate for Complainant. Mr. Ashiq Raza, Advocate for State. Date of hearing: 19.4.1995. order This bail application banks a tragical past history of a case in which one of the most gentle and respectable member of the bar namely Barrister Muhammad Najeebullah Khan was murdered on account of his courageous struggle against encroachers and land-grabbers. The deceased had stepped froward to shake the conscience of stone-hearted bureaucracy of the area by filing a C.P. No. D-2145/92 before this Court to take action against the law­ breakers. The Chief Justice, Mr. Nasir Aslam Zahid, (as he then was) did his best to expose all these persons who claim to be custodians of law but' in practice, are the slaves of corrupt police-officials. The result of that petition still demands, even today, to spit on the working of those, without any exception, who had sponsored the criminals to protect their personal gains because the land-grabbers are still in possession of the government land illegally in spite of the death of a respectable barrister. After his death the murderers threatened Mrs. Hajra Begum, the wife of the deceased, and her two minor school-going daughters to meet, dire consequences. Hence it was ordered by this Court on 23.2.1993 for posting a police-guard at their house. However, the conduct of the bureaucracy, as was expected, remained un­ changed till today. 2. The instant application moved was on behalf of the two applicants/accused on several grounds but before passing any final order in this case it would be necessary to narrate tragical descriptions of the case as embodied in F.I.R. No. 6/1193 registered at Police Station Bluch Colony, Karachi (South) on 17.1.1993 at about 1630 hours which had been recorded by ASI Muhammad Razzak. The said ASI had reached Agha Khan Hospital on the said date and Muhammad Najeebullah Khan, who was still alive but seriously injured, stated before him as under :- "I was present at my house. I opened that main gate of my house after hearing the call-bell. A young boy, who told his -name Bakhtiar, threatened me by saying" You have got houses demolished in our lane and (you are) also getting orders to get other houses demolished". I turned him out of the gate. He went away after threatening me. I went to P.S. Bluch Colony in my car which was being driven by my driver Peer Jan and submitted an application there. After leaving the police-station I was coming to my house in the same car being driven by my driver. Suddenly the same boy came out from a taxi with a dagger in this hand he got my car stopped with the help of that taxi near F.I.A. office. He attacked me, while I was in the car, with intention to kill me. It injured my abdomen on the left-side which started bleeding. In the meantime one pedestrian body namely Gullu (whose actual name is Bakhtawar) caught hold of my collar and started beating me with fist blows. Several persons gathered there on my commotions. My driver brought me to Agha Khan Hospital for my treatment. Both the accused (means Bakhtawar and Bakhtiar who are brothers) managed to make their escape good in the taxi. My driver brought me to Agha Khan Hospital for treatment. This incident was witnessed by my driver Peer Jan S/O Fateh Khan and several other persons. Charge-sheet dated 22.3.1993 submitted in this case ~ " reflects that the police had failed to trace-out Bakhtawar till he got his pre-arrest bail from the District and Sessions Judge on 4.2.1993. He was arrested by the Police on 14.2.1993 only when his bail was cancelled by the court The dagger was recovered on his pointation. Hence a separate case u/S. 13-D Arms Ordinance was also registered against him. Both the accused were challaned U/S. 324/34 Qisas & Diyat Ordinance. Barrister Muhammad Najeebullah expired on 14.11.1993 on account of those injuries. Thus amended charge-sheet U/S. 302 Qisas and Diyat Ordinance and submitted before the trial Court. 3. It is evident from the above-mentioned facts that :-- (i) F.I.R. was lodged on 17.1.1993. (ii) Main accused Bakhtawar could be arrested on 14-2-1993 i.e. after about one month only when his bail was cancelled by the court but the police had failed to trace him out although he had been coming to and going out of the court during his struggle for getting pre-arrest bail. It shows incompetency of the concerned police officials of the said police station. (iii) Late Barrister Muhammad Najeebullah Khan expired on 14.11.1993 i.e. about one month after the arrest of main accused. During this period neither the accused was brought before injured complainant for identification in presence of any Magistrate or in presence of any doctor nor he was produced before any Magistrate to get his statement recorded U/S. 164 Cr. P.C. in spite of this bitter reality that the police had blamed against the accused that he had not co-operated with the police in the investigation after getting him bailed out These facts need no comments because every sensible person can,easily realize the conduct of police officials and their so called interest in this case with reference to the gravity of defective investigation. (vi) The learned trial court also failed to examine the injured during that period of (9) months which started from 14.2.1992, the day when accused Bakhtawar was arrested and ended on 14.11.1992 when the victim expired. (v) When first application for bail was moved before the learned VIII Additional Sessions Judge Karachi (S), the complainant Muhammad Najeebullah Khan sent his statement from Agha Khan Hospital on 11.3.1993 to the learned trial Judge wherein he stated that the police was spoiling his case by making the accused to escape through police officials of the said police station. He gave all the details about the case and other informations to the Hon'able Chief Justice of Sindh High Court He also complained in his statement that the police was avoiding to get his driver examined under section 164 Cr. P.C. Even the vehicle used in the crime was not impounded. He explained the nature of his injuries and operations done by the doctors in the Hospitals. This statement speaks itself that duration of his life was decreasing day by day. But the steps taken by the learned trial Judge in the light of circumstances as explained in his letter need no comments particularly when the learned trial Judge failed to record his evidence before his death. However the application for bail was rejected on 24.5.1993 by the said court In these circumstances if the persecution fails to establish its case against the culprits then soul of late Barrister Muhammad Najeebullah Khan would cry by asking from every custodian of law : (vi) After rejection of the bail application, one of the learned Advocates appeared in this Court for bail by moving Cr., Bail Application No. 542/1993 but the most sorrowful and noticeable aspect of the said application is that the learned advocate gave incorrect and twisted facts in the said application. Later on he withdrew himself from the case for the reasons best known to him. However, the said application was rejected on 28.7.1993. (vii) Another application bearing Cr. Bail No. 529/1994 was moved on 2.6.1994 after failure to get bail from the trial Court in the second round on 8.5.1994. Before any final order could be passed by this Court. The learned counsel for the applicants withdrew the said application hence the same was dismissed as withdraw. 4. It is now the third round in which present bail application was moved to seek bail. This time the learned advocate for the State as well as for the deceased have contested the bail application more seriously but position of the case at present has changed which can be summarised as under :- (1) Statement of the only eye-witness namely Peer Jan, who was driving the car of late Muhammad Najeebullah Khan as his driver at the time of incident has been recorded and he has not supported the prosecution case by resiling from his previous statement. Main portion of his statement to that effect reads as under :- "Accused present in the Court are not known to me. Since my eye-sight is also weak and at the time of incident I was terrorised, I could not say with certainly that the accused present in court are same or other persons." However he admitted in cross-examination that relative of accused had met with him 4 or 5 times inside the court and out side the Court. (2) Applicants/accused are in custody since their arrest i.e. 1993. The case against the applicants could not come to end till 30.3.1995, when this order was dictated. (3) Nothing has been brought on record to show whether death of the deceased took place on account of those injuries alleged to have been caused by one of the applicants or due to improper medical treatment because the deceased remained in the Hospital for about 10 months for his treatment i.e. from 17.1.1993, the date of incident till he expired on 14.11.1993. This period of .10 months cannot be ignored regarding his proper or improper treatment. Nothing can be said about this aspect unless evidence of doctors is recorded in this case. 5. If justice had been salve of emotions I would have refused bail by taking into consideration the burning feelings of the bar observed by this Court on the murder of their respectable and gentle colleague I have no (Line missing not readable) in this case had not resiled form his statement, the position of the case could be different. But, after the statement of Peer Jan and failure of the learned counsel for the State to expose the false-hood of the said witness has permitted this matter to slip in-to the cradle of further enquiry attracted by sub-section (2) of Section 497 Cr. P.C. It is noticeable that learned prosecutor, even, did not declare this witness hostile which shows the calibre and the so-called interest of the prosecution. 6. These were the reasons which left this court with no other alternative but to grant bail to both the accused by a short order dated 30.3.95. The applicants were ordered to be released on bail on furnishing solvent surety in the sum of Rs. 3,00,000/ (three lac) each to the satisfaction of the Nazir of this Court with P.R. bonds in the like amount in accordance to the spirit of a Judgment reported as Nizamuddin and others vs. The State (PLD 1994 Karachi 517) Misc. Appln. No. 502/1995. 7. On 12-4-1995,, the learned counsel for the applicants moved this application u/S. 561 Cr. P.C. and stated therein that the applicants could not be released for want of solvent surety in the sum of Rs. 6 lac (Rs. 3 lac for each accused) as ordered by this court. It was stated in the application that father of the applicants was only a security guard in National Bank of Pakistan and he was not in a position to arrange such surety. The learned counsel, therefore, prayed for reduction of amount of surety to one lac each. After hearing the learned Advocate for the applicant and Mr. Azizur Rehman for the State this court passed the following amended order : "Service certificate signed by one Mr. Hassan Sher Khan, Manager Administration shows that Gul Baz Khan, who is the father of present applicants, is a confirmed and permanent employee of National Bank of Pakistan. The said Gul Baz Khan has obtained House Building loan after mortgaging his property in favour of the Bank on 24.1.1991. This certificate shows that Mr. Gul Baz Khan is still working in the Bank and, therefore, I would like to modify the order passed on 30.3.1995 as under: (a) The applicants/accused would submit solvent surety in the sum of Rs. 50,000/00 each by submitting surely in the form of property (movable or immovable). (b) The surety would furnish his personal bond in the sum of Rs. 2% lac for each accused. He will also sworn an affidavit before the Nazir of this Court that he would not transfer, sell or gift his immovable property till the disposal of this case, which has already been mortgaged in the Bank, or dispose of the same in any manner whatsoever. The office will also send the copy of this order to the concerned Branch of National Bank of Pakistan as an information so that the bank should be very conscious and the documents of property be not released to the present surety till the disposal of this case. This amended order was passed in the light of observations made in a reference reported in PLD 1995 Karachi 436. 8. Before parting with the above order finally I consider it necessary to point out that on account of several Lacunae left in the relevant Hudood Law and Qisas and Diyat Ordinance, as radiated in a case reported as Jamaluddin and another vs. The State (1995 MLD 1779), the time requires immediate legislation to make these laws perfect in accordance to the real picture of Islam as well as to take action against all these corrupt bureaucrates and police officials who are found responsible, intentionally and deliberately, to save the criminals. If no such law is introduced to punish such persons then every murdered soul would ask and ciy. means: On whose hand am I to find traces of my blood. The entire city has taken to wearing gloves of deceit" The concerned and the responsible personalities may not answer this question in this world but they must not forget to prepare themselves to answer it on the Last Day. With reference to such situations as discussed above, I have elaborated the nature of the murders in the cases reported as Jcunaluddin and another vs. The State (1995 MLD 1779) and Nizamuddin vs. The State (PLD 1994 Karachi 517) which leave no room for anyone to doubt but to believe that effective legislation is required to meet all such situations because such murders can never be dealt with the help of promulgated law of Qisas and Diyat Ordinance. In my view such cases are covered by the definition of Harrabah as given in section 15 of Offences Against Property (E.O.H) Ordinance 1979, but unfortunately the said definition is not helpful in such murder cases because the learned Pakistani Islamic Scholars have limited that definition to the offences of robbery and dacoity provided that offences are attracted by section 17 of the said Ordinance. (KK.F.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1481 Present: SHAFI MUHAMMADI, J. TAJ BAHADUR alias TAJI and another-Appellants versus STATE-Respondent Crl. Appeal No. 30 of 1994, decided on 14.3.1996. (i) Common intention— —S. 34 PPC-Furtherance of common intention—Determination of~ Utterance of certain damaging words by an accused to instigate an offender to commit an offence may not amount to an act committed in furtherance of common intention to attract section 34 PPC unless prosecution proves that offence so committed was result of influence and control of instigator aver offenders who had committed that offence-It is, therefore, necessary for court to find out whether co-accused while committing an offence were acting independently or they were under influence and control of accused who instigated them-If act committed by an accused appears to have been done independently without being influenced by instigation of other accused then alleged instigator cannot be convicted and sentenced under the garb of section 34 PPC. [P. 1489] B (ii) Corroboration- —If there is one or more than one corroboratory pieces of evidence to support prosecution case as reflected by an F.I.R. which is treated substantial piece of evidence by court and if same inspires confidence of court then conviction can be based upon such pieces of evidence nevertheless eyewitness supported case or resiled from their previous statement. [P. 1491] D (iii) First Information Report- —F.I.R. is a substantial piece of evidence if it contains substantial material regarding details of an offence with mention of role of accused persons and names of witnesses-But if an F.I.R. contains only information about murder of a person without any other detail about accused person or their role or names of witnesses etc then F.I.R. may not be treated a substantial piece of evidence-F.I.R. in murder cases registered within shortest possible time with all details does not possess less value than death declaration. [P. 1491] C (iv) Safe Administration of Criminal Justice- —For purpose of safe administration of criminal justice, as well as to secure ends of justice it is necessary for court to take into consideration all pieces of evidence together with their collective effect. [P. 1489] A Mr. G. M. Kamal, Advocate for Appellant. Mr. Sarwar Khan AAG for State. Date of hearing: 18.1.1996. judgment By a short order dated 18.1.1996 appeal of Taj Bahadur son of Sher Bahadur convicted and sentenced under Section 302/34 PPG by the learned Additional Sessions Judge Karachi (East) vide his judgment dated 21.12.1993 was allowed by setting aside his conviction and sentence while appeal of Abdul Rehman son of Muhammad Aslam in the same case was dismissed by maintaining his conviction and sentence. The reasons for passing the said order and other details of the case are embodied in the forthcoming paragraphs. brief history op case 2. The facts disclosed by P.W. Abdul Lateef in his statement under section 154 Cr. P.C. dated 2.10.1984 and reflected by the record radiate as under: The complainant Abdul Latif, appellant Taj Bahadur alias Taji and his wife Mst. Shah Jehan were residing in Chisti Compound Malir City in the adjoining houses. Accused Taji was serving as a chowkidar of the compound. About a month back from the date of incident Mst. Rani brought a young boy (the co-appellant Abdul Rehman) to her house who later on started visiting her house frequently. The complainant and other Mohallah people strongly objected by considering the said boy as paramour of Mst. Rani while she claimed that she had adopted the said boy as her brother. On the day of incident, at about 7.00 p.m. complainant, Mst. Jamila and Zahida (wife and daughter of the complainant respectively) were sitting outside the door of their house while his son Javed aged about 25 years was standing at the door when Taj Bahadur, Abdul Rehman (both appellants) and Mst. Rani arrived there. Mst. Rani pointed out toward Javed and asked the two appellants to finish him. Taj Bahadur Caught hold of Javed while Abdul Rehman gave him 3/4 dagger's blows on his chest, arm and neck. The complainant and his family rushed to rescue Javed during which Mst. Rani gave two fist blows to Mst. Jamii»>ton her face and injured her. Javed was escued but was found seriously injured. The incident was witnessed by several persons such as Manzoor Elahi, Muhammad Sarwar, Dr. Latif, Master Arbab Sindhi Khan Bahadur and Inam Elahi as well as by several other persons. On seeing them all the three accused ran away. Injured Javed was taken to Jinnah Hospital but he died near the gate of the Hospital. Police was informed by the doctors. SIP Akhtar Hussain reached the hospital and recorded statement of the complainant besides preparing several other documents. 3. After usual investigation, challan was submitted against three accused persons mentioned in FIR No. 211/84. Mst. Shah Jehan alias Rani was shown as an arrested accused while the male accused (the appellants) as absconders in the charge sheet. Charge against Mst. Shah Jehan (alias Mst. Rani) was framed on 28.1.1985 to which she pleaded not guilty and claimed trial. The charge was amended on 27.2.1986 after appellant Taj Bahadur was arrested. Prosecution had already examined several witnesses when Abdul Rehman was also arrested. Instead of amending the charge once again the case of Abdul Rehman was bifurcated. The charge against appellant Abdul Rehman was framed on 4.2.1982. Hence several witnesses were examined for the second time. Appraisement of evidence brought on record took the learned trial Court to conclude this matter by a common impugned judgment dated 21.12.1993 as under :- (i) Mst. Shah Jehan alias Rani was acquitted from the charge; (ii) Appellants Taj Bahadur and Abdul Rehman were convicted and sentenced to life imprisonment and fine of Rs. 10,000/- each (in default thereof 2 years R.I). (iii) Appellant Abdul Rehman was given the benefits of 382-B Cr. P.C. on the ground of his remaining in jail from the date of his arrest. (Note) The learned trial Judge inadvertently used the words "section 382 Cr. P.C." instead of "section 382-B Cr. P.C." in the impugned judgment. Section 382 Cr. P.C. relates to postponement of capital sentence on pregnant woman while section 382-B is concerned with the period of detention to be considered while awarding sentence of imprisonment. 4. Being aggrieved by and dis-satisfied with the pronouncement of the trial Court the appellants preferred the appeal in hand. 5. The impugned judgment, therefore, cradles two Sessions cases bearing Nos. 1017/85 (A) (against appellant Abdul Rehman) and 1017/85 (B) (against Taj Bahadur and Mst. Shah Jehan) which arise out of the same FIR and challan so also the common witnesses. The record of the cases discloses that prosecution had already examined P.Ws namely (i) Abdul Latif, (ii) Mst. Zahida (iii) Mst. Firdous (iv) Manzoor Elahi (v) Dr. Iqbal Ahmed (vi) Muhammad Hanif (vii) Mst. Jamila (viii) Mst. Chaman (ix) Abdul Haque (x) Muhammad Sarwar and (xi) Mst. Salma against appellant Taj Bahadur and Mst. Shah Jehan before charge was framed against Abdul Rehman on 4.2.1989. On account of this reason the learned trial Court considered it proper to bifurcate Abdul Rehman's case from the case of other two cases. .But this bifurcation neither gave any benefit to the accused nor to the Court because disposal of the case took place by a common judgment dated 21.12.1993 i.e. after about more than 9 years from the institution of the case. It is necessary to point out that the learned trial Judge examined only 4/5 formal prosecution witnesses during the period of more than 5 years to dispose of S.C. No. 1017/85 (B) in which about 11 witnesses had already been examined before the arrest of appellant Abdul Rehman. This delay on the pail of the trial Court cannot be appreciated by this Court on any ground whatsoever and it is hoped that trial Courts would not embrace this policy of delay in disposal of cases particularly after enforcement of the _ Qisas and Diyat Ordinance in Pakistan in the name of Islamic Shariah. 6. Prosecution had examined Dr. Iqbal Ahmed twice in this case i.e. on 9.9.1987 in S.C. No. 1017/85 (B) and on 8.1.1992 in S.C. No. 1017/85 (A). He had conducted autopsy on the dead body of Jawad Akhtar and found the following injuries. (i) Incised wound 1" x \ muscle deep, oblique in direction at slightly right side of chest; (ii) Incised wound 3/4" x V cavity deep transverse in direction a border of left side of lower chest and upper abdomen, 5^ distance from left nipple ; (iii) Incised wound 3/4" x \" muscle deep at left exilla (iv) Limber abration 1" in length at right chest Internal examination of dead body disclosed : Liver. Incised wound 1" in length, tissue deep in left lobe of liver. In his opinion the cause of death of deceased Javed Akhtar was cardirepiratory failure due to hammorage shock due to internal injury of liver resulting fromsharp edged substance. All injuries were antimortem. The depositions of the doctor also speak that the dead body of Javed Akhtar was brought to him at 11.45 p.m. i.e. about 4.45 hours after the occurrence of incident. The post-mortem was started at 11.55 p.m. on 2,10.1984 and it ame to an end at 1.15 on 3.10.1984. The last lines of the depositions of this witness run as under :- "The food ordinarily digested after about 6 hours. The deceased might have taken food about 3-4 hours before death." Thus, semi-digested food in the stomach and timings mentioned in the said statement fully corroborate the time of incident/inflicting injuries is mentioned in the statement under section 154 Cr. P.C. Motive of murder has also been fully described in the F.I.R./statement under section 154 Cr. P.C. Similarly, the statements of P.Ws. recorded at the initial stage leave no doubt about the names of actual culprits in this case. In the light of material collected in the very beginning and reflected by the narrations of P.Ws. on the very first day and with 4/5 hours of incident describe the role of each accused on under :- (i) Mst. Shah Jehan (alias Rani) had instigated the appellants to kill Javed, the deceased in this case. (ii) Her husband, appellant Taj Bahadur, had caught hold of deceased Javed; and (m) Her claimed adopted brother or alleged paramour, appellant Abdul Rehman, inflicted several dagger's injuries to the deceased. evidence led by the prosecution 7. As stated earlier, the learned trial Court had bifurcated the matter into two cases bearing No. S.C. No. 1017 of 1985 (A) and S.C. No. 1017/85CB). In both these cases several common witnesses were examined. These witnesses can be divided into three sets. The first set of witnesses consists of eye-witness (i) Mst. Firdous Begum (ii) Abdul Latif (father of the deceased) (iii) Mst. Zahida (sister of the deceased) (iv) Sawan and (v) Mst. Jamila (mother of the deceased who was examined only in S.C. No. 1017/85(B). The second set of witnesses had seen appellant Abdul Rehman with blood stained dagger in his hand at the spot. They had also seen him making his escape good from the place of incident. This set includes P.Ws. namely (i) Mst. Chaman (ii) Muhammad Hanif (husband of Mst. Chaman) and (iii) Manzoor Ellahi. The third set of witnesses includes the names of (i) Abdul Latif Bhatti (ii) Tauqir-Rehman (iii) Pervez Akhtar (iv) Dr. Iqbal Ahmed and (v) Imdad Ali (I.O. of the cases. After going through the evidence led by the prosecution I reached this conclusion that depositions of witnesses named in the first two sets remained consistent with reference to the role of appellant Abdul Rehman but so far as the case against Taj Bahadur was concerned, the eye-witnesses tried to improve their statements in such manners which did not corroborate with other pieces of evidence. 8. On bifurcation of cases, prosecution examined several witnesses twice and their depositions brought glaring contradictions in the evidence. It might be helpful to bring into light certain contrary reflections observed in depositions of few witnesses in the two cases particularly the depositions of eye-witnesses. S.C. No. 1017/85 (A) (Against Abdul Rehman) S.C. No. 1017/85 (B) (Against Taj Bahadur & Mst. Shah Jehan. evidence of P.W. abdul latif The witness fully supported the case of prosecution against Abdul Rehman on 22.2.1989 by deposing that Abdul Rehman had inflicted injuries to the deceased. The defence failed to shatter his evidence. However, the defence succeeded to establish that his previous statement against the second appellant was not correct. The deposition of this witness dated 18.5.1987 speaks that Taj Bahadur had picked out churri from the lower part of the leg and attacked Javed Akhtar on his chest, neck and arm. It was also stated in the said deposition that accused Taj threw away the knife on the ground and Abdul Rehman picked it. But there is no mention in the said deposition about the role of Abdul Rehman for causing injuries to the deceased. evidence of P.W. mst. firdous begum When this witness was examined on 22.3.1989 she stated in her examination-inchief, "I heard cries raised by Javed son of complainant Abdul Latif saying that a knife was inflicted to him I looked behind and saw that deceased Javed was laying on the ground with injury and accused Abdul Rehman was standing by a tree duly armed with knife." This witness had also been examined on 7.7.1987. In that statement she stated in examination-in-chief that: "Taj Muhammad caught hold of Javed alias Papoo and Abdul Rehman gave churri injuries to Javed after coming out of the house of Rani. Rani had investigated Taj Muhammad and Abdul Rehman not to spare Javed. "It will be incorrect to say that Taj Bahadur had inflected churri injuries to the deceased It is incorrect that I have not seen the incident and that I am depositing out of Mohalladari in favour of that complainant party. It is important to point out that name of this witness was mentioned in complainant's statement recorded under section 154 Cr. P.C. It was stated therein that Mst. Firdous Begum w/o Pervaz Butt was present on the spot when Abdul Rehman caused injuries to the deceased. Her deposition dated 7.7.1987 fully supported the prosecution case but, when she was examined for the second time, she twisted her statement to exonerate Abdul Rehman. evidence of P.W mst. zajhda The witnesses is the sister of deceased Javed Akhtar. Her statement is similar to the statement of her father, P.W. Abdul Lateef. She stated on 6.5.1990 in her examination in chief that: " accused Muhammad left my father and caught hold my brother deceased Javed and accused Abdul Rehman gave him churri blows. In her cross examination she stated that : "It is incorrect that in the previous statement recorded in case against accused Taj Muhammad and Shah Jehan I had deposed that the accused Taj Muhammad had given churri blows to my deceased brother Javed. Voluntarily says that I had deposed that accused Abdul Rehman had inflicted churri blows on the person of my brother deceased Javed. She had also been examined on 18.5.1987. In her statement on that day she stated: "Accused Abdul Rehman on the instigation of Mst. Rani caught hold of my brother Javed and Rani gave churri to Taj and Taj inflicted 3/4. churri blows on my brother on chest, neck and arms. In her cross-examinations she stated: "It is correct that in 161 statement it is mentioned that Abdul Rehman inflicted 3/4 churri blows on my brother. evidence of P.W sawan In his statement recorded on 1.12.1991, he stated: "Accused Abdu Rehman had inflicted Churn injuries to deceased Javed. The co-accused Taj caught hold of the father of deceased Javed. I came forward for rescue of deceased Javed and the accused Abdul Rehman also came forward to attack on me with churri I, therefore, pushed up the accused Abdul Rehman and saved myself from his attack. On 10.4.1988, he stated in his examination-in-chief led that: "Accused Taj had grippled with father of Javed. I separated them and then I went towards injured Javed on which one culprit attempted to attack on me with a churri whom I caused a kickblow and he fell on the wall. Afterwards the police disclosed to me the name of such culprit as Abdul Rehman. stated: n cross examination he tated: In cross examination h "It is incorrect that I did not witness the incident and that I have deposed falsely at the instance of my mother-inlaw as she has good relations with informant. If these two depositions are taken together for our consideration then it is fully revealed that although the witness had avoided to frame accused Abdul Rehma a. for causing injuries to Javed yet the facts leave no doubt that there was no one else except Abdul Rehman who had churri in his hand to cause injuries to the deceased. evidence of P.W manzoor elahi The witness stated in this deposition recorded on 31.10,1991. "I saw that the accused Abdul Rehman was having churri in his hand and was threatening not to come near him otherwise he will stab the churri. The said churri in the hand of accused with stained with blood in The witnesses stated examination-in-chief 22.7.1987. "I saw that accused Taj oo had held deceased Javed. Accused Abdul Rehman was armed with bloodstained knife who was also standing there. Thus statement of this witness recorded on 22.7.1987 as well as on 31.10.1991 i.e. after about 4 years and 3 months totally remained unshattered. This witness is independent witness. He was working as peon in K.D.A. Department and aged about 57 years. His answers to certain questions re t trding certain technical points were damaging to the prosecution case which proves that he had stated what he had witnessed. It shows that he answered each and every question independently notwith­ standing that his answers may be favouring or damaging the prosecution case. Such conduct proves credibility of witness and it inspires confidence of the court to believe his statement as full of truths on material facts. In the present case his statement regarding material fact of blood stained churri in the hands of Abdul Rehman at the spot remained unshaken even after expiry of several years. The deposition of this witness, therefore, leaves no doubt that it was only appellant Abdul Rehman who had caused fatal injuries to the deceased. deductions derived from depositions 9. I need not to discuss the evidence of remaining witnesses because pieces of depositions of witnesses as quoted in earlier lines radiate crystal clear leaving no doubt for any sensible person the role of each culprit for reaching a correct conclusion. In this case Mst. Shah Jehan alias Rani was arrested on the very next day of the incident i.e. 3.10.1984. The second accused (one of the appellants) namely Taj Bahadur was arrested on 8.2.1985 and the third accused (the other appellant was arrested on 15.5.1988. When the Court started recording evidence against Taj Bahadur and Mst. Shah Jehan, the complainant party put the burden of causing injuries on Taj Bahadur because accused Abdul Rehman had not been arrested till that time and they had burning feelings against the accused person who were responsible directly on indirectly to kill deceased Javed Akhtar. But they came out with truth only in the second round when appellant Abdul Rehman was arrested and charge was framed against him on 4.2.1989. Perhaps they had lost hope of arrest of accused Abdul Rehman. So they twisted their statements to get Taj Bahadur and Mst. Shah Jehan convicted to settle the account of deceased Javed Akhtar's murder. This conduct in our society is very common although most regrettable because it shatters their credibility. If there had no other pieces of evidence to unfold real prosecution case or if the appellant Abdul Rehman and not been arrested, the court would have been misled in this case. 10. Being full aware the specific conduct of witnesses in our society in criminal cases I have always embraced this view that for the purpose of safe administration of criminal justice as well as to secure the ends of justice it is necessary for the court to take into consideration all pieces of evidence together with their collective effect. Similarly I am of the view that utterance of certain damaging words by an accused to instigate an offender to commit an offence may not amount to an act committed in furtherance of common intention to attract section 34 PPG unless the prosecution proves that the offence so committed was the result of influ nce and control of the instigator over the offenders who had committed that offence. It is therefore necessary for the court to find out whether co-accused while committing an offence were acting independently or they were under the influence and control of the accused who instigated them. If the act committed by an accused appears to have been done independently without being influenced by the instigation of other accused then the alleged instigator cannot be convicted and sentenced under the garb of section 34 PPC. Same was the position regarding role of Mst. Shah Jehan in this case. I have no doubt in my mind that other co-accused were acting independently and even if Mst. Shah Jehan alias Rani had not accompanied the two male accused/appellant, their intention was clear not to spare deceased, Javed Akhtar so she was rightly acquitted by the trial court. But the case of remaining two accused persons means the appellants, is totally on different footing. 11. After perusal of evidence led by prosecution I have no doubt in my mind that the complainant party was too much influenced by this burning feelings equally against each accused. No doubt that they had supported the prosecution case against appellant Abdul Rehman but there is also no doubt that they were not honest enough while improving their statements against Taj Bahadur particularly before the arrest of Abdul Rehman. I have no hesitation in expressing myself that if they been honest in their statement, no benefit of doubt could be given to appellant Taj Bahadur. The complainant Abdul Latif (father of deceased) Mst. Jamila (mother of deceased) and Mst. Zahida (sister of the deceased) have undoubtedly spoiled the case of prosecution themselves on account of their emotional feelings. Firstly they put the burden of offence on appellant Taj Bahadur and then they shifted that burden from Taj Bahadur to appellant Abdul Rehman (Note Msif. Jamila was examined only once. She was not examined against appellant Abdul Rehman). This conduct of complainant and her daughter (respectively father and sister of the deceased) was fatal to their credibility with reference to their evidence against Taj Bahadur. Similarly the statement of Mst. Firdous Begum has also caused substantial damage not only to her credibility but also to the prosecution case against Taj Bahadur. She was an independent witness. She deposed against the accused persons correctly when father, mother and sister of the deceased told lies against Taj Bahadur on account of their hatred against him with intention to take revenge of deceased Javed. But when father and sister of the deceased came out with truth she deposed in the second round lukewarmly in such manners which could be fruitful to save appellant Abdul Rehman. 12. It was contended forcefully by the learned advocate for the appellants that contradictory statements of eye-witnesses had laid down a foundation of doubts and the appellants could not be convicted and sentenced en the bases of story concocted in the F.I.R. is not a substantial piece of evidence. No doubt there are apparently contrary pronouncements on the point of treating on F.I.R. to be a substantial piece of evidence or not ut my view is that an F.I.R. is a substantial piece of evidence if it contains substantial m^ .erial regarding details of an offence with mention of role of accused persons and the names of witnesses. But if an F.I.R. contains only information about the murder of a person without any other detail about accused person or their role or the names of witnesses etc. then the said F.I.R. may not be treated a substantial piece of evidence. I am also of the view that an F.I.R. in murder cases registered within the shortest possible time with all details does not possess lesser value than a death declaration. My view for believing so is based on the following reasons. A person, at his death bed, when loses hope of his survival, is always found mentally determined to speak the truth. Similarly when a seriously injured person is brought by his relatives or friend for his treatment then truth automatically comes out of their mouth because at that time, they have no senses to tell lies. There may be exceptions to this proposition but exceptions are always exceptions and they cannot prevail over generality. On account of this reason on F.I.R. with all material detail of an offence particularly in murder cases is as much important on behalf of the deceased as that of death declaration by the deceased himself before his death. On the strength of this proposition I am of the view that if there is one or more than one corroboratory pieces of evidence to support prosecution case as reflected by such an F.I.R. which is treated substantial piece of evidence by the Court and if the same inspires the confidence of the Court then conviction can be based upon such pieces of evidence nevertheless the eye-witness supported the case or resiled from their previous statements. The case of appellant can be judged on the anvil of these propositions. If depositions of complainant Abdul Latif (father of the deceased) and Mst. Zahida (sister of the deceased) are ignored, even then there is convincing and ample evidence of independent witnesses including Manzoor Elahi and several others, to prove the presence of appellant Abdul Rehman on the spot with blood stained churri at the time of evidence. His unambiguously mentioned role in the FIR and his abscondence for several years fully corroborates and proves him guilty of the offence charged against him. To the contrary learned counsel for the appellant neither brought into light any defence theory nor any convincing statement of appellant Abdul Rehman under Section 342 or U/S. 340(2) Cr. P.C. This part of the proceedings was rather conducted lukewarmly by the learned counsel. This important aspect can be easily ascertained after going through the statement of appellant Abdul Rehman recorded by the Court under section 342 Cr. P.C. or under section 340(2) Cr., P.C. For example question No. 3 and answer to that question in the statement under section 342 Cr. P.C. reads as under: Q. 3.Do you want to examine yourself on oath ? ajjs. No Sir. Contrary to this answer the appellant examined himself on oath in his defence and deposed as under :- "I had not committed the murder of deceased Javed. I have been implicated in this case because of Hello-hello with coaccused Taj. I am innocent. Ipray for mercy of this Court and also pray for justice with me." Such de.fence is totally unconvincing and inspire no confidence of any Court. 13. There is no doubt in this bitter reality that in tribal society still existing with full force in rural areas it is very common to implicate all possible male members of rival group on account of tribal enmities. But it can be said with certainly that this cancerous characteristic of enmity observed in the heart of tribalism has not entered fully into the veins of urbanism. On the bases of this aspect I have no hesitation to hold that examining the appellant under section 340(2) Cr. P.C. in such managers was nothing but only an eye wash. Thus the learned trial court was justified to ignore such unconvincing statement which came out of the mouth of appellant after expiry of about 5^ years from the date of his arrest. During this period he could prepare proper defence and produce several witnesses in his defence if he had been truthful in his claim them he was innocent. However his prayer for mercy was accepted by the trial court and he was awarded life imprisonment instead of death sentence and which was the only and proper sentence for such murderer who break young helping hands of old and aged parents. In these circumstances I would have issued a notice for enhancement of sentence if the appellant had not been in prison since 1988. 14. These were reasons for passing the order in para 1 of this judgment. 15. Notwithstanding the fate of this appeal, as decided above and nevertheless that this murder case relates to a period prior to the promulgation of Qisas and Diyat Ordinance, the L.R's of deceased Javed Akhtar have right to compromise with appellant Abdul Rehman by accepting blood money/Diyat. The L.R.'s of deceased Javed Akhtar have also right to pardon the appellant if they so desire. In case there is any dispute among the L.R's on pardoning or compromising, the same must be placed before the learned trial Court who would be competent to get that dispute solved. This benefit has been given to the appellant because his case was decided after the promulgating of Qisas and Diyat Ordinance. (K.K.F.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1493 [Hyderabad Circuit] Present: AMANULLAH ABBASI, J. SHERIMATI PARI BAI-- versus AMRAT LAL etc.» Cr. M. No. 137 of 1996 rejected on 23-5-1996. Habeas Corpus-- —S. 491 Cr. P.C.-Minor children-Recovery of~Petition for~Minors have been residing with their father for the last three months-Respondent does not want to hand over custody of minors to petitioner~As welfare of the minors is involved, petitioner may approach Guardianship court for interim and final custody of minors-Children have been produced in court by respondent and petitioners has met her children-This obviously shows that children are not in wrongful confinement-Petitioners may approach Guardianship Court for custody of minors-Petition dismissed. [P. 1494 & 1495] A Mr. Allah Bacheyo Lakho, Advocate for Applicant Mr. Abdul LatifAnsari, Asstt: A.G. for Respondent. Date of hearing: 23-5-1996. order The applicant is mother of five children and the respondent Ararat Lai is father of children. He has produced children in Court. The children are with their father since last three months. None of the children is major. They are all minors. Learned Counsel for the applicant requested that the custody of the children may be transferred to applicant. He has relied oh decision reported in N.L.R. 1996 Cr. page 229 = PLJ 1996 SC 307. This is a decision of Honourable Supreme Court. The children are admittedly with their father respondent No. 1 Ararat Lai nee last three months. The pettioner did not approach the Guardianship Court but instead has filed an application U/S. 491 Cr. P.C. The provisions of Section 491 Cr. P.C. are as under :-- 491. Power to issue directions of the nature of habeas corpus- (1) Any High Court may, whenever it thinks fit, direct :- (a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that prisoner detained in any jail situate within such limits be brought before Court to be there examined as a witness in any matter pending or to be inquired into in such Court; (d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioner for trial or to be examined touching any matter pending before such Court-martial or Commissioners respectively ; (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of a defendant within such limits be brought in on the Shariff s return of cepi corpus to a writ of attachment. (2) The High Court may, from time to time, frame rules to regulate the procedure in case under this section. (3) Nothing in this section applies to persons detained under any other law providing for preventive detention. None of these provisions empowers me to transfer the custody of the minors. Learned Advocate for the applicant has relied on decisions reported in 1996 N.L.R. Cr. page 229 = PLJ 1996 SC 307. Their Lordships have been pleased to mention as under :- "In view of above observations in it is quite clear that in appropriate cases the Court under Section 491, Cr. P.C. if it reaches the conclusion that a minor has been illegally removed from the custody of a person who was holding his custody lawfully, the Court is empowered under section 491, Cr. P.C. notwithsanding the provisions of Guardians and Wards Act to pass appropriate orders. We are, therefore, of the view that the jurisdiction of the Criminal Court is not barred under section 491, Cr. P.C. to pass appropriate order with regard to custody of a minor who has been illegally removed from the custody of a person, on account of the provisions of Guardians and Wards Act." In this case there are five minors and they have been residing with their father for last three months. The respondent Ararat Lai does not want to hand over the custody of the minors to the petitioner. As the welfare of the minors is involved, the Petitioner may approach Guardianship Court for interim custody of the minors and also for final custody of the minors. Children have been produced in Court by the respondent and the petitioner has met her children. This obviously shows that children are not in wrongful confinement Petitioner may approach the Guardianship Court for custody of minors. The present Cr. Misc. Application No. 137/1996 is therefore rejected. (K.A.B) . Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Pesh.) 1495 (DB) Present : JAVAID NAWAZ KHAN GANDAPUR AND ZEENAT KHAN, JJ. YOUSAF JAN--Appellant versus STATE-Respondent Cr. Appeal No. 37 of 1995, accepted on 13.3.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 103 read with S. 13 of--West Pakistan Arms Ordinance (XX of 1965),-- Non-Compliance of S. 103--Effect of-Contention that S.H.O. had received a prior information about presence of proclaimed offender in the house of appellant, he was bound to have associate two respectable persons of locality with search/raid of house, in accordance with mandatory provisions of S. 103 Cr.P.C.-Search of premises was carried out in the absence of appellant in violation of S. 103 Cr.P.C.-Co-accused who was at least present at the time of raid was also acquitted by trial court—Appeal accepted. [Pp. 1497 & 1498] A, B & C Mr. Dost Muhammad Khan, Advocate for Appellant. Mr. Muhammad Khan Khakwani, Advocate for Respondent Date of hearing: 13.3.1996. judgment Appellant Yousaf Jan S/o Mehtar Yousaf, aged about 45 years, resident of Hindal Langar Khel, Tehsil and District Lakki Marwat, was put on trial alongwith his wife Mst. Sarki Zara in the court of Special Judge, for Suppression of Terrorist Activities, Lakki Marwat (Mr. Abdul Rehman Khan Sessions Judge) for having committed an offence punishable U/S. 13 A.O. 2. The allegations against the appellant are that huge quantity of arms and ammunition was recovered from his house which was to be used for terrorist activities. Besides, the appellant was allegedly found involved in the smuggling of contraband charas. 3. The prosecution story, stated briefly, is that the local police on 5.10.1994 had received secret information that proclaimed offender by the name of Gul Rehman S/o Akhar Khan resident of Navarkhel, Lakki had come to visit the appellant and was present in his house. Accordingly a raiding party was formed. It was headed by S.H.O. Inayat All Shah (P.W.3). The police party then raided the house of the appellant at 7.30 hours on 5.10.1994 in order to arrest the proclaimed offender. 4. Unfortunately, the proclaimed offender could not be found in the house. However, during the raid, when the house in question was searched, the following articles were allegedly recovered from it :— (i) One Klashnikov of 7.62 bore bearing No. 4845. (ii) Two Sten guns of 30 bore each with magazines having 5 live cartridges each. (iii) One 30 bore pistol' No. AR 1484 with two magazines containing 5 live cartridges each. (iv) One dagger alongwith its sheath, (v) 15 live cartridges of 32 bore, (vi) 2 live cartridges of 303 bore, (vii) 19 Kgsc/uzras. 5. S.H.O. Inayat Ali Shah (P.W.3) took all the articles into his possession vide, recovery memo. Ex. P.W. 2/1 in the presence of its marginal witnesses, D.F.C. No. 5 Muhammad Zaman (PW.2) and L.H.C. Abdul Mastan (not produced). Murasila Ex. PA/1 was drafted by the S.H.O. (PW.3) who sent the same to P.S. Lakki, where on its basis A.S.I. Said Akbar Khan (P.W.I) registered the present case vide. F.I.R. No. 309, (Ex. PA) on the same day i.e., 5.10.1994. 6. Since the appellant was not present in the house, therefore, his wife Mst. Sarki Zara (acquitted accused) was arrested and warrants U/S. 204 Cr.P.C. and proclamation U/S 87 Cr.P.C. were obtained against the appellant. After a few days (18 days), the appellant was also arrested. 7. The usual police investigation was completed and both the accused were sent up for trial before the Special Judge, Lakki Marwat. He charged both of them for having committed an offence punishable U/S. 13 A.O. The charge was framed on 24.4.1994 against the appellant as well as his wife (acquitted accused) which was read over and explained to them. Both of . them pleaded not guilty and claimed trial. 8. The prosecution, in order to prove its case, produced the following witnesses :— A.S.I. Said Akbar Khan, P.S. Lakki Marwat (P.W.I). Head Constable Muhammad Zaman (P.W.2). S.H.O.P.S. Lakki Inayat Ali Shah (P.W.3) 9. After the close of the prosecution case, the appellant as well as the acquitted accused were examined U/S. 342 Cr.P.C. Both of them claimed innocence and stated that they had been falsely involved in the case. The Special Judge by his judgment dated 30.6.1995 acquitted Mst. Sarki Zara while the appellant U/S. 13 A.O. was convicted and sentenced to undergo three years R.I. The benefit of Sec. 382-B Cr.P.C. was however extended to him. 10. Dis-satisfied by the impugned judgment, the appellant has referred this appeal for the redress of his grievance and has challenged the legality/validity of the conviction/sentence awarded to him. 11. We have heard Mr. Dost Muhammad Khan Advocate, learned counsel for the appellant and Mr. Muhammad Khan Khakwani Advocate, the learned counsel for the State and have also gone thorough the record of the case with some degree of care. 12. It is an admitted fact that the appellant was not present in the house when the arms and ammunitions in question were allegedly recovered from his house by the complainant S.H.O. (PW.3). The learned counsel for the appellant vehemently contended that the S.H.O. had received a prior information about the presence of the proclaimed offender in the house of the appellant and had decided to raid the house to arrest him, therefore, in the circumstances, he was bound to have associated two respectable persons of the locality with the search/raid of the house, in accordance with the mandatory provisions as laid down in Section 103 Cr.P.C. According to him, it was quite evident from the prosecution evidence that the appellant was not available in the house when the arms and ammunitions, mentioned in para- 4 above, were allegedly recovered from his house. Similarly, it is a fact, established by the prosecution evidence, that before carrying out the search of the house of the appellant, the complainant S.H.O., who also happens to be an Investigating Officer, had not associated two respectable persons of the locality during the course of the search/raid in question. It would, therefore, follow that the possession of the arms and ammunitions, allegedly recovered from the appellant's house, could not be proved as it could not be established, beyond reasonable doubt, that it was he who had kept the said arms and ammunitions there. The search of the premises was also carried out in the absence of the appellant in violation of the mandatory provisions of Section 103 Cr.P.C. The same, to our mind, was therefore, absolutely illegal. We are accordingly of the view that the appellant did not deserve to be convicted/sentenced on the basis of this evidence. 13. The matter does not end here. The Special Judge, on the basis of the same evidence, while extending the benefit of doubt, acquitted Mst. Sarki Zara co-accused who was at least present at the time of the raid in the house. However, the trial court on the basis of same evidence convicted the appellant, who at the relevant time, was not at all present there. We are, therefore, of the opinion that the conviction/sentence of the appellant, on this score too, cannot be upheld. 14. This appeal is accepted. The conviction and sentence of the appellant, as recorded by the Special Judge vide his judgment dated 30.6.1995, is set aside. The appellant is acquitted and shall be released forthwith if not required in any other case. 15. Needless to mention that the appellant, on the basis of this very evidence has already been acquitted by the Federal Shariat Court vide judgment dated 12.11.1995 delivered by his Lordship Mr. Justice Nazir Ahmad Bhatti in Cr. Appeal No. 152/1 of 1995, for having committed an offence punishable under Art. 3/4 Prohibition Order. 16. These are the reasons for-our short order dated 13.3.1996. (A.P.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C (Karachi) 1498 Present: agha saifuddin khan, J. Mian KHURSHID AHMAD-Applicant versus MUHAMMAD AZEEM etc.-Respondents Criminal Misc. Application No. 398 of 1995 accepted on 30.5.1996 (i) Bail-Cancellation of-- —-S. 497(5) Cr. P.C.--Bail--Concellation of--0ffence u/Ss. 302, 120-B, 114, 34 of Pakistan Penal Code, 1860 read with S. 13-E West Pakistan arms Ordinance, 1965-Although names of respondents are not figured in FIR but after further statement, of applicant and PW names of respondents were disclosed and a specific role was assigned to each of them-Number of injury on person of deceased shows that two persons have fired at him as two empties were recovered from the scene of offence-Two shot-guns and a black motorcycle were also secured from respondents and they were also properly picked-up in identification parade-Application allowed. [P. 1501] A Mr. Shaukat H. Zubedi, Advocate for Applicant. Mr. Agha Zafir, Advocate, for the State. Announced on 30.5.1996. order This is an application made on behalf of the applicant Mian Khurshid Ahmed under sub-section (5) of section 497 Cr. P.C. seeking cancellation of bail granted to the respondents namely Muhammad Azeem and Muhammad Ali both by caste Chachar involved in Crime No. 64/94 of Police Station Kashmore, under sections 302,120-B, 114, 34 PPC and section 13-E Arms Ordinance, by Ilnd Additional Sessions Judge, Kandha Kot vide order dated 22.8.95. The prosecution story is that on 24.6.94, applicant/complainant Mian Khursheed Ahmed alongwith his deceased father Mian Ellahi Bukhsh Farooqui, PWsMunir Ahmed and Zahid Ahmed were returning after offering 'Juma' Prayer, when they reached near the Bhutta street at about: 2.45 p.m., suddenly, two persons armed with guns and with open faces came there. One of the culprits instigated the other accused to fire at Mian Ellahi Bakhsh, whereupon that other accused directly fired at Mian Ellahi Bakhsh which hit him on the chest and he fell-down on the ground. Then another accused also fired at Mian Ellahi Bakhsh which also hit him and then both the culprits made their escape good on their black coloured motorcycle. The applicant then saw that Mian Ellahi Bakhsh had expired due to gun-shot injuries and complainant left PWs Munir Ahmed and Zahid Ahmed on the • dead-body and went to police station and lodged the FIR as Crime No. 64/94. During the course of the investigation police examined PW Din Muhammad Malik and recorded the further statement of the applicant/ complainant who disclosed the names of the culprits as Muhammad Azeem son of Ali Sher Chacher and Muhammad All son of Sanwal Chachar, to have caused the death of his father with fire arms and escaped from the scene of the offence on a black motorcycle. That police arrested both the accused/respondents who produced both the guns, uged in the crime, and surrendered their motorcycle and disclosed in the police interrogation that 12 other co-accused namely ; (1) Muhammad Shahban, (2) Bahsir Ahmed, (3) Muhammad Ayub, (4) Rashimdil, (5) Muhammad Amin (6) Dango, (7) Laiq Muhammad (8) Gulsher, (9) Allah Ditto, (10) Ali Bux, (11) Sanwal and (12) Aziz, were involved in conspiracy for the murder of deceased Mian Ellahi Bakhsh Farooqi. That police also secured two empties from the scene of the offence and both the respondents were picked-up in the identification parade before the magistrate by the applicant as well as the prosecution witnesses. That 12 co-accused were granted bail by Justice Abdul Rahim Kazi, as his lordship the then was, in Cr. Bail Applications Nos. 2 and 3 of 1995 on 25.6.96. The present respondents were granted bail by the learned Ilnd Additional Sessions Judge, Khandh Kot on 22.8.95. I have heard Mr. Shaukat Hussain Zubedi learned counsel for the applicant and Mr. Agha Zafir Ali, learned counsel for the State. Respondents as well as Mr. Mirza Saeed Beg, learned counsel for the respondents called absent. It is stated by Mr., Shaukat Hussain Zubedi that although names of the respondents are not mentioned in the FIR but their names were subsequently disclosed in the further statement of the applicant/complainant Mian Khursheed Ahmed and PW Deen Muhammad Malik and a specific role is assigned to the respondents by the eye-witnesses that both the respondents fired at the deceased and then escaped from the scene of the offence on a black motorcycle. That the statement of the eyewitnesses gets support from' the post-mortem report in respect of deceased Mian Ellahi Bakhsh that he has received gun-shot injuries on his person. It is further contended that respondents were picked-up in the identification parade before the Magistrate by the eye-witnesses and two shot-guns were recovered from the respondents and two empties were also secured from the scene of the offence and moreover the report of the ballistic expert is in positive and the FIR was lodged promptly. It is further contended by the learned counsel for the applicant that there appeared reasonable grounds to believe that respondents Nos. 1 and 2 have committed the offence of murder falling within the prohibitory clause of section 497, Cr. P.C. and consequently the order by which the bail was granted to them is perverse and liable to be set aide. Learned counsel has also relief on Abdul Sattar v. The State, 1991 P. Cr. L.J. 2307. Mr. Agha Zafir Ali, learned counsel for the State has supported this application that incident has been witnessed by the complainant/applicant and two eye-witnesses namely, Muneer Ahmed and Zahir Ahmed. That two shot-guns, two empties and a black motorcycle have been recovered from the respondents Muhammad Azeem and Muhammad Ali and that both the respondents Muhammad Azeem and Muhammad Ali and that both were identified in the identification parade before the Magistrate by the applicant is as well as both the prosecution witnesses and that ballistic expert's report is in positive and medical-evidence is in consistent with the prosecution version. Lastly, that trial court has not applied his judicial mind while deciding the impugned bail application. Respondents Muhammad Azeem and Muhammad Ali were called absent and their advocate Mr. Mirza Saeed Beg was stated to be present in the Court early in the morning but when this matter was taken-up at 10: 00 a.m. he was called absent and I then took the matter at 11 : 30 a.m. and again Mr. Mirza Saeed Beg was called absent. Although I waited for the learned counsel for the respondents for nearly 3 (three) hours but he chose to remain absent and his clients, both the respondents, were also absent. Umerited grant of bail in a murder case which itself was so brutal and horrible, is bound to produce a scene of despair and frustration and the power of cancellation of bail, though of an extraordinary nature, is meant to be exercised in the cases of this nature. That in the case of Haflz Khuda Bux and another v. The State reported in PLD 1988 S.C. 314. a criteria was laid down for the grant of bail and it was held :- "But consideration regarding bail under section 497-(l) and (2) are different:-- (i) If, 'there appear reasonable grounds for believing..' as visualised in prohibitory part of section 497(1) bail shall not be granted (exceptions apart); (ii) If, no such positive finding, though tentative, can be rendered against the accused then bail can be refused but ordinarily it is not refused without some cogent reasons : (iii) If, however, there is a negative finding though tentative, on consideration of entire material, as envisaged by section 497(2) that 'there are no reasonable grounds for believing..' then bail shall not be withheld : (iv) If, there is no finding as is mentioned above in category (iii), bail cannot be granted in a case falling in a prohibitory part of section 497(1) (exceptions apart) merely on the ground that there is scope for 'further enquiiy. There will hardly be any case in which there is not scope for further enquiiy. This is often being ignored by the Courts". Applying the established principles laid down by the superior Courts for the grant of bail in a case punishable with death or imprisonment for life, to the facts of the present case, it appears to me that the learned Ilnd Additional Sessions Judge, Kandh Kot, had exercised the discretion improperly. There is ample evidence on the record connecting the respondents Nos. 1 and 2 with this crime. Besides, complainant Khursheed Ahmed, PWs Muneer Ahmed and Zahid Ahmed claimed to have witnessed the incident. The alleged incident took place in broad daylight when deceased was returning after offering 'Juma' prayers alongwith his son applicant Mian Khursheed Ahmed and, therefore, there was hardly and possibility by mistaken identification. Although the names of the respondents are not figured in the FIR but after the further statement, recorded by the police, of the applicant and PW Deen Muhammad, names of the respondents were disclosed to be Muhammad Azeem Chacher and Muhammad Ali Chachar which was lodged promptly and a specific role was assigned to each of them. The number of injury on the person of deceased shows that two persons have fired at him as two empties were also recovered from the scene of the offence. It is also alleged that two shot-guns and a black motorcycle were also secured from the above said respondents and they were properly picked-up in the identification parade held before the Magistrate by the prosecution witnesses. Although Justice Abdul Rahim Kazi, had granted bail to 12 co-accused who were not named in the FIR but they were implicated by the present respondents that; they were involved in conspiracy with them to murder Mian Ellahi Bakhsh and in the said order his lordship observed :- "From the above discussion I am of the view that this is a case which calls for further inquiry at least in the case of present applicants. However, as regards the case of coaccused Azim and Muhammad Ali the inference would be otherwise." Having regard to the above factual and legal position, the application made under subsection (5) of section 497, Cr. P.C. is allowed and bail granted to respondents Muhammad Azeem Chachar and Muhammad Ali Chachar by End Additional Sessions Judge, Kandh Kot, vide order dated 22.8.95 is cancelled. The said respondents shall surrender before the trial court which will take necessary steps for their arrest if they fail to surrender before it The learned Sessions Judge, Jacobabad is also directed, in the interest of justice, to withdraw this case from the file of learned nnd Additional Sessions Judge, Kandh Kot, either to his own file or transfer it to the Court of 1st Additional Sessions Judge, Kandh Kot. Application allowed. (K.A.B.) Application allowed.

PLJ 1996 Cr PLJ 1996 Cr.G. (Pesh.) 1502 Present: ZEENAT KHAN, J. GHULAM NABI--Petitioner versus GAGEEN and others-Respondents Criminal Appeal No. 20 of 1995, dismissed on 6.3.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 417 (2)--Offence u/Ss. 447/427/506/148/149 of Pakistan Penal Code, 1860 read with S. 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975-Acquittal of accused-Challenge to~0ffences for which accused/respondents were charged are not offences which have been included in Schedule of offences in Act, 1975-No report was lodged with police, but complainant has opted to have his grievances redressed through a complainant before a Magistrate-In such circumstances, it was incumbent upon SHO to have investigated into matter and thereafter have submitted his report to Magistrate~SHO concerned did not abide by provisions contained in Chapter XVI of Cr.P.C. but resorted to Section 156 Cr.P.C. and registered the case-Held : SHO concerned has pre­ empted powers of Magistrate-This transgression is deadly opposed to smooth administration of justice-Held further : No case of conviction was made out from statements of witnesses-Courts are reluctant in an order of acquittal primarily for the reason that after acquittal an accused earns double presumption of innocence. [Pp. 1504 & 1505] A to E NLR 1990 (Criminal) 273 and 1995 P.Cr. L. J. Lahore 408 ref. Mr. Muhammad Afzal Nadir, Advocate for Petitioner. Sh. Shakeel Ahmed, Advocate for Respondents No. 1 to 5. Mr. Muhammad Khan, Advocate for State. Date of hearing: 29.2.1996. judgment This Criminal Appeal filed under Section 417(2) Cr.P.C. is directed against the order dated 5.7.1995 passed by the learned EAC (JudiciaD/MIC, Dera Ismail Khan, vide which the accused/respondents No. 1 to 5 were acquitted under Section 249-A Cr.P.C. in Case F.I.R. No. 180 dated 27.5.1991 registered under Sections 447/427/506/148/149 PPC at Police Station Saddar, D.I. Khan. 2. Briefly stated, facts of the case in hand are that Ghulam Nabi, appellant herein, had lodged a complaint under the aforementioned sections of law in the Court ofllaqa. Magistrate on 20.5.1991. The said complaint was eferred to the S.H.O. Police Station Saddar D.I. Khan for inquiry under Section 202 Cr.P.C. and report. After doing the needful, the S.H.O. finally registered the case referred to above. After completion of investigation, challan was put in Court on 20.8.1991 and the Magistrate after taking cognizance of the case commenced with the trial. After recording statements of four prosecution witnesses, the trial Magistrate came to the conclusion that even if all the PWs be examined, there was no possibility of conviction of the accused/respondents and, therefore, passed the impugned order which is now under challenge through the instant appeal. 3. Arguments of the learned counsel for the parties heard and record of the case scrutinized thoroughly. 4. At the very outset, Mr. Muhammad Khan Khakwani, Advocate appearing on behalf of the State, submitted that the learned Magistrate had no jurisdiction to take cognizance of the case, as the weapon of offence allegedly used in commission of the crime was Kalashnikov and, therefore, the impugned order of acquittal being without jurisdiction is not maintainable in the eyes of law. 5. I am afraid that it is not the correct legal position. The question of jurisdiction of Special Court shall be decided in the light of the provisions contained in Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called as the Act). It will be appropriate to reproduce sxibsection (1) of Section 4 of the Act ibid which reads as follows :-- "JURISDICTION OF SPECIAL COURT (1) Notwithstanding anything contained in the Code, the Scheduled Offences shall be triable exclusively by a Special Court". The offences for which the accused/respondents were charged in the complaint as well as in the F.I.R. are not the offences which have been included in the Schedule. Therefore, the case in hand came out of the jurisdiction of the Special Court and the learned Magistrate had the jurisdiction to take cognizance of the matter. 6. As stated earlier, the appellant had lodged a complaint before the Ilaqa Magistrate who after examining him on oath under Section 200 Cr.P.C. referred the matter to the S.H.O. of Police Station Saddar D.I. Khan for inquiry under Section 202 Cr.P.C. and report. The S.H.O. concerned did not abide by the provisions contained in Chapter XVI of the Cr.P.C. as ihspite of sending the inquiry proceedings alongwith his report to the Ilaqa Magistrate, resorted to Section 156 Cr.P.C. and in consequence thereof 1 registered the case. 7. The choice as to whether a case should be proceeded as a complaint case or as a police case initially rests with the complainant, because it is he who seeks the help of the Magistrate when filing a complaint. The Code of Criminal Procedure has provided two different procedures for the redress of grievances. One is contained in Chapter XIV where the information is conveyed to an Officer Incharge of the Police Station in cognizable cases, and the other in Chapter XVI of the Cr.P.C. if he does not resort to police for the redress. In the instant case, no report was lodged with he police, but the complainant has opted to have his grievances redressed hrough a complaint before the Magistrate. In such circumstances, it was incumbent upon the SHO of the Police Station (to whom the complaint was marked for inquiiy and report) to have investigated into the matter and thereafter have submitted his report alongwith the data collected to the Magistrate. In this view of the matter, the S.H.O. concerned has pre-empted the powers of the Magistrate conferred on him vide Chapter XVII Cr.P.C. This transgression is deadly opposed to the smooth administration of justice. Reference, in this context, can be made to NLR 1990 (Criminal) 273. 8. The complaint was received by the Magistrate on 20.5.1991. The Magistrate issued the process on 26.8.1991 against the accused. Till 5.7.1995, only four witnesses were examined although a period of about four years had elapsed. From the statements of these witnesses, no case of conviction was made out. In such circumstances, the Magistrate was left with no other remedy but to acquit the accused under Section 249-A Cr.P.C. Learned counsel for the appellant has been unable to show any illegality or irregularity in the impugned order of the trial Court. 9. ^earned counsel for the accused/respondents while placing reliance in 1990 S.C.M.R. 536, 1990 P.Cr.L.J, 4347 (Karachi) and 1990 P.Cr.L.J. 1549 (Lahore) has opposed the appeal and supported the conclusion arrived at by the trial Court. Nonetheless, Mr. Muhammad Khan Khakwani, Advocate representing the State, has pressed into service PLD 1984 S.C. 428, but unfortunately the verdict delivered in this case does not favour the prosecution case, rather it supports the version of the accused/respondents. 10. It has been held in 1995 P.Cr.L.J. Lahore V 408 at page 409 that the Courts are reluctant to interfere in an order of acquittal primarily for the reason that after his acquittal an accused earns double presumption of innocence which can only be rebutted if the order of acquittal, on the face of it, appears to be perverse, arbitrary or illegal. 11. For what has been discussed above, I find no substance in this petition which is hereby dismissed. (MYFK) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1505 [Bahawalpur Bench] Present: MUHAMMAD jaffar hashmi, J. NAZAR MUHAMMAD-Petitioner versus STATE etc.-Respondents Cr. Misc. No. 167-C/B-1996/BWP, accepted on 17.3.1996. (i) Bail-Cancellation of- —-S. 497(5)-Bail-Cancellation of-Offence U/S. 302 PPC--There is eye witness account sufficiently connecting accused with commission of offence-There is recovery of weapon of offence at the pointation of accused-There is inquiiy report of Magistrate 1st class under S. 202; reports of two Investigating Police Officers holding accused guilly as against one report in his favour and there i's a medico legal report supporting prosecution version-In the absence of any plausible defence version so far brought on record, prima facie accused being found guilty is not entitled to concession of bail in view of prohibitory clause of S. 497 and particularly when trial is yet to commence. [Pp. 1508 & 1509] A (ii) Ipse dixit of police- —Opinion of investigating officer is not binding upon court-Every court can have its own opinion and may after examining opinion of investigating officer come to a different conclusion-Opinion of Investigating Officer, holding an accused innocent cannot be made only basis for grant of bail. [P. 1509] B Mr. Muhammad Sharif Bhatti, Advocate, for Petitioner. Mr. Muhammad Hussain Chaudhry, Advocate, A.A.G. for the State. Mr. Mumtaz Hussain Bazmi, Advocate, for Respondent-accused. Date of hearing: 17.3.1996. order Nazar Muhammad-petitioner, the complainant in case FIR No. 219/95 under section 302 PPG registered at P.S. Civil Lines, Bahawalpur, has moved this petition for cancellation of bail granted to Atif flahi, respondent-accused, by Mr. Irshad Hussain Abdi, learned Additional Sessions Judge, Bahawalpur, vide order dated 14.2.16. 2. According to the prosecution story as obtained from the contents of the' FIR, Nazar Muhammad and his son Sajid Ahamd, who are cycle mechanics, were working at their shop when at about 8-0 P.M. on 6.7.1975, they were informed by Muhammad Ajmal, PW, the brother of the complainant, that their another brother Shabbir Ahmad and Atif Eahi (accused) were fighting with each other at a hotel being run by one Abdul Razzak. On receipt of this report, the complainant, his son Sajid and Ajmal rushed to the hotel and they saw Shabbir Ahmad and Arif Ilahi both fighting and causing fist blows to each other. The complainant intervened and separated the both and advised them not to resort to any aggression. The respondent-accused, while leaving the place, threatened the complainant party with dire consequences. The complainant and his brother were still present there when the accused respondent came back in a car armed with a rifle and he parked his car by the road side and came out of it. He straightaway went up on the roof of the hospital building belonging to his father, Dr. Atta Ilahi and from there he fired shot at Shabbir Ahmad, who ducked in a side lane. He fired second shot that hit Shabbir Ahmad on his back on account of that he fell down and became incapacitated. The witnesses urgently removed the injured to the hospital and on the next day he expired as a result of fire arm injury. The case was registered the same day only one hour after the occurrence took place. During the investigation, the accused led to the recovery of rifle, the crime weapon, from the backyard of the hospital building belonging to his father on 14.7.1975. Since the rifle recovered on the pointation of the accused was found to be without licence, therefore, a separate case under section 13 of the Arms Ordinance, 1965, was registered vide FIR No. 226/95 dated 14.7.1995. 3. Tne respondent-accused moved first bail application before the learned Sessions Judge, Bahawalpur, which was entrusted to Chaudhry Ahsan Ahmad, Additional Sessions Judge, for disposal that was withdrawn by the respondent-accused on 26.9.1995 without assigning any reasons for withdrawal. The second application was moved before the learned Sessions 'Judge that was entrusted to Syed Irshad Hussain Abdi, Additional Sessions Judge and this application was dismissed for non-prosecution on 23.1.1996. The respondent, however, moved the third bail application on 28.1.1996, five days after the dismissal of the second bail application on the similar grounds as were agitated in the previous two bail applications. This application was heard on 14.2.1996 and the learned Additional Sessions Judge accepted the application and allowed bail to the respondent-accused in the sum of Rs. 50,000/- with one surety. The bail was allowed to the respondentaccused only on two grounds: firstly, that SP, CIA, had found the respondent-accused innocent and had recommended to the learned Magistrate for cancellation of case against him; and secondly that the location of the injury as per MLR could not be believed to be the same in view of the directions highlighted in the site to an prepared by the police assessing the position of the accused, while he fired shot from the roof of the building said to be 35 feet in height from the ground. Besides these points, the learned Additional Sessions Judge has neither referred the recoveiy nor eye witness account nor the defence version nor any other relevant attending circumstances. 4. I have heard the learned counsel for the parties at length and perused the record. 5. Learned counsel for the respondent-accused pleads that the case was investigated thrice and all the three Investigating Officers, including the SP, CIA, had given different versions and out of these three police officers, SP, CIA has found the respondent-accused innocent and forwarded his report to the Magistrate recommending cancellation of case against the accused. It is further argued that the medico legal report does not support the prosecution story as given in the FIR. In'view of these discrepancies, it is a case of further inquiry and the respondent- accused is entitled to bail. It is lso argued that the benefit of doubt is extended to the accused at bail stage as well. Learned counsel has referred several authorities in support of his contentions, those are 194 P.Cr.L.J. 3092, 1990 P.Cr.L.J. 529,1986 P.Cr.L.J. 2180,1990 P.Cr.L.J. 1035, PLD 1995 SC 35 and 1990 P.Cr.L.J. 640. 6. Learned counsel for the petitioner/complainant has argued that important factors not considered by the learned Additional Sessions Judge are : (i) eye witness account; (ii) recovery of weapon of offence; (iii) no plausible defence version; (iv) the evidence has yet to be recorded as the challan has been submitted only a few days back; and (v) the offence committed by the respondent-accused falls within the prohibitory clause of section 497 Cr.P.C. and in such like cases grant of bail is an exception and not a rule. Learned Assistant Advocate General for the State has also been heard, who has adopted the arguments advanced by the learned counsel for the complainant and supports cancellation of bail. 7. After hearing the lengthy arguments, I am of the law that the learned Additional Sessions Judge has allowed bail to the respondentaccused in a highly hurried manner without carefully examining the relevant features of the case and has completely ignored the well established principles as laid down by the superior Courts for grant or refusal of bail particularly in murder cases. 8. The most important feature of the case which is not even referred to in his order by the Additional Sessions Judge is that the complainant when got disappointed with the result of the investigation conducted by the SP, CIA, he filed a private complaint in the Court and the learned Additional Sessions Judge forwarded the complaint to Mr. Shariq Masood Ansari, Magistrate 1st Class, for inquiry under section 202 Cr.P.C. The learned Magistrate conducted a thorough inquiry in accordance with law and made a report on 11.1.1996, whereby he found the respondent-accused prima facie guilty. The learned Additional Sessions Judge must be aware of this report on 14.2.1996 when he passed the bail order. 9. As regards the plea that since the respondent-accused has been declared innocent by the SP, CIA, he is entitled to the benefit of doubt at bail stage, I am least persuaded by this argument. No doubt, the SP h s exonerated the respondent-accused from the commission of offence but this report alone is not ufficient to render the case doubtful or as one of further nquiry inasmuch as the first 1.0. who conducted the investigation has found the accused-respondent guilty and similarly in the investigation by Ali Akbar, DSP, subsequent to the investigation of SP, CIA, the accused is held responsible for commission of offence of murder and he has courageously differed with the result of investigation conducted by SP in express terms in his report irrespective of his seniority in rank. The report of DSP is more comprehensive and to the point than the report of the SP, CIA, which is not based on any relevant material whatsoever. 10. In this case, there is eye witness account sufficiently connecting the accused with the commission of offence; there is recovery of weapon of offence at the pointation of the accused; there is inquiry report of the Magistrate. 1st Class under section 202 Cr.P.C; reports of two investigating police officers holding the accused guilty as against the one report in his favour; and there is a medico legal report supporting the prosecution version. In the absence of any plausible defence version so far brought on record, prima facie the accused being found guilty is not entitled to concession of bail in view of the prohibitory clause of section 497 Cr.P.C. and particularly when the trial is yet to commence. 11. So far as the solitary report of SP, CIA, exonerating the accused is concerned, in case Liaqat Mi vs. The State reported in PLD 1994 SC 172, it was held by the Hon'ble Supreme Court that such report is not binding on the Court and does not carry any weight. The relevant, portion thereof is reproduced hereunder:- ".... It is now well settled that the opinion of Investigating Officer is not binding upon the Court. Every Court can have its own opinion and may after examining the opinion of the Investigating Officer, come to a different conclusion. The opinion of the Investigating Officer holding an accused innocent, cannot be made the only basis for grant of bail. Although due weight is given to such opinion, but the Court is empowered to examine the material which has been made basis for forming such an opinion by the Investigating Officer. If the opinion is based on inadmissible and irrelevant evidence, it will not carry any weight...." 12. The learned Additional Sessions Judge to justify the grant of bail to the respondent, as discussed above, has based his findings on MLR which is yet to be tested through evidence of the doctor during the trial and he has assessed the weight and credit-worthiness of MLR prematurely for the purposes of bail which practice is not appreciated by the superior Courts through series of pronouncements. The order of the learned Additional Sessions Judge dated 14.2.1996 allowing bail to the respondent-accused is arbitrary and capricious and is passed without applying judicious mind. 13. For what has been discussed above, this petition is accepted and the bail'granted to the respondent-accused vide order dated 14.2.1996 by the learned Additional Sessions Judge is cancelled. 14. Before I part with the case, I deem it proper in the interest of justice to withdraw the case for trial from the Court of Syed Irshad Hussain Abdi, Additional Sessions Judge, Bahawalpur, and entrust to the learned Sessions Judge, Bahawalpur, who either should hold the trial himself or entrust to any other Additional Sessions Judge for trial. (K.A.B.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1510 Present: ijaz nisar, J. MUHAMMAD ABBAS-Petitioner versus STATE-Respondent Criminal Misc. No. 84/Q of 1991 accepted on 24.1.1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 561-A--Quashment of proceedings-Prayer for--Offence u/S. 161 PPG read with S. 5(2) Prevention of corruption Act, 1947-It is a settled proposition of law trial of a public servant without sanction by competent authority is illegal and conviction if recorded in its absence would .also be illegal. ' [P. 1511] A (ii) De novo Proceedings- — De novo proceedings-Scope of--No power under law vests in learned Special Judge to set aside earlier proceedings of case and order de novo proceedings--By doing so, he tried to fill in the lacuna in prosecution case-Held : Order of Trial Court is set aside and petitioner is acquitted of charge. [P. 1511] B & C Muhammad HanifNiazi, Advocate for Petitioner. Date of hearing: 24.1.1996. judgment This is a petition under section 561-A Cr.P.C. for quashment of the proceedings pending in the Court of Special Judge, Anti Corruption, Lahore. 2. Brief facts of the case are that a case F.I.R. No. 22 was registered against Muhammad Abbas petitioner on 9.5.1979 under section 5(2) of the Prevention of Corruption Act, 1947 and section 161 P.P.C. After the trial the learned Special Judge by his judgment dated 6.1.1981 convicted the petitioner and sentenced him to undergo two years R.I. plus fine. The petitioner field an appeal in the High Court against his conviction which was accepted on 15.2.1986 and the case was remanded for retrial. After remand the case was retried by Rao Iqbal Ahmad, the then Special Judge, Anti- Corruption, who recorded the statement of the accused/petitioner and the defence evidence. Before he could conclude the trial he was transferred and was succeeded by Sh. Munir Ahmad, Special Judge, Anti Corruption, Lahore, who vide his judgment dated 20.1.1988 set aside the proceedings conducted by his predecessor, namely, Rao Iqbal Ahmad holding the same to be \oid-ab-initio and ordered retrial of the petitioner by him. Hence, this petition for quashment of the p oceedings. 3. The main plank of arguments of the learned counsel for the petitioner is on the competency of the learned Special Judge to hold a de novo trial at his own motion. According to him, after framing the charge, the learned trial Court could either convict the petitioner or acquit him for want of sanction as contemplated by law. It is further contended that the petitioner had already suffered mental torture and agony for about 12 years and his third trial would be a great hardship to him and will not advance the cause of justice in any manner. 4. The prosecution case against the petitioner was that he had accepted Us. 900/- as illegal gratification from Muhammad Hussain complainant on 9.5.1979 while serving as Building Inspector, L.D.A. for not taking action against him in the construction of his shops without getting the plan approved from L.D.A. 5. Mr. Munir Ahmad Sheikh, Special Judge, Anti-Corruption, Lahore held that since the sanction.for prosecution of the petitioner was not proved to have been granted by the competent authority before the framing of charge, therefore, the proceedings held in absence thereof were void-a&- initio and for that reason ordered his fresh trial. 6. earned counsel for the petitioner contends that section 6(5) of the Pakistan Criminal Law Amendment Act, 1958 makes it mandatoiy that sanction shall be obtained for the prosecution or a public servant from the appropriate Government, but in the case against the petitioner the prosecution had failed to prove that the sanction for prosecution had been obtained or accorded before 19.4.1980 when the charge against him was framed, or that the Special Judge had addressed a letter to the appropriate Government for according the necessary sanction. 7. No date of t e grant of sanction is mentioned in the order Exh. PD which casts a serious doubt on the prosecution assertion that it had been ranted before the framing of charge. It is an admitted position that it was not appended with the challan papers. The grant of sanction for prosecution before taking cognizance of the case by the Court was a mandatory requirement which was not fulfilled by the prosecution. Therefore, his trial was illegal. It is a settled proposition of law that trial of a public servant without sanction by the competent authority is illegal and the conviction if recorded in its absence would also be illegal. The present case was registered against the petitioner on 9.6.1979 and it would not be in the interest of justice to start his trial afresh after a period of more than 16 years, particularly when he is reported to have retired from service. Since he has already suffered the agony of these proceedings for such a long period, I do not consider that his fresh trial would advance the cause of justice. Furthermore no power under the law vests in the learned Special Judge to set aside the earlier proceedings of the case and order de novo proceedings. By doing so, he tried to fill in the lacuna in the prosecution case. 8. in the above circumstances, the petition is accepted and the order of the learned Special Judge dated 20.1.1988 ie set aside and the petitioner is honourably acquitted of the charge. (K.A.B.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1512 [D.B.] Present: KHALID PAUL KHWAJA AND SAJJAD AHMAD SlPRA, JJ. MUHAMMAD AAMAR-Petitioner versus STATE-Respondent Crl. Appeal No. 1770/B/96, accepted on 29.5.1996. Bail-- —S. 497 Cr.P.C.-Offence U/Ss. 436, 427, 148 PPG read with section 16 of Maintenance of Public Order Ordinance, 1960-Bail-Grant of-Prayef for-Contention that no offence U/S 436 PPC was constituted because said section relates to destruction of a building through mischief by fire or explosive substance-As regards allegation relating to destruction of motor cycle-Secondly allegation is based on hearsay thus has no evidentiary value—State counsel could not controvert this legal contention-Offences U/S. 147, 148 and 427 are bailable--As regards offence U/S. 16 MPO FIR does not contain words which petitioner or other processionist had uttered during incident which could be described as capable of causing fear or alarm to public or were prejudicial to public safety or maintenance of public order-Mere raising of slogans, which is a political norm does not fall within mischief of section IB—Petition accepted. [P. 1513] A & B Mr. Imtiaz Ahmed Kaifi, Advocate for Petitioner Sh. Afzaal Ahmed, Advocate for the State. Dat6e of hearing : 29.5.1996. order On 5.4.1996 at Police Station Qila Gujar Singh, Lahore a case under sections 436, 427, 148 PPC and section 16 of the Maintenance of Public Order Ordinance, 1960, was registered at the instance of Muhammad Sadiq who is employed as a driver to Nawab-zadah Mansoor Ahmed Khan, Revenue Minister in the Punjab Government. On 5.4.1996 at 4.30 p.m he was standing with the official car of the said Minister at Nicholson Road, Lahore when a procession consisting of 150/200 men came there after the burial of Javed Ashraf. The agitated processionists started pelting stones at the said car as a result of which the same was badly damaged. They also caused damage to the door of an office. The complainant further stated in the FIR that it was heard that the said processionists had raided the police lines and T.V. Station, set a motor-cycle on fire and also caused damage to the office of the Peoples Party. It was further alleged that the said processionists had raised slogans against the government. One of the processionists namely Muhammad Aamer, who was arrested, has applied for his bail. 2. We have heard the paritie's learned counsel and have also gone through the record. 3. Learned counsel for the petitioner has submitted that no offence under section 436 PPG was constituted because the said section relates to destruction of a building through mischief by fire or explosive substance. As regards the allegation relating to the destruction of motor-cycle through fire it may be pointed out that a motor-cycle is not a building and secondly the said allegation is based upon hearsay and thus has no evidentiary value. Learned counsel for the State could not controvert this legal contention raised by the learned counsel for the petitioner. The offences under sections 147,148 and 427 PPG are bailable. Even otherwise no specific role has been attributed to the petitioner. 4. As regards the offence under section 16 of the Maintenance of Public Order Ordinance, 1960 it may be pointed out that the FIR does not contain the words which the petitioner or other processionists had uttered during the incident which could be described as 'capable of causing fear or alarm to the public' or were 'prejudicial to the public safety or maintenance of public order". Mere raising of slogans, which is a political norm does not fall within the mischief of section 1 6 ibid. 5. In view of what has been stated above we are of the opinion that the petitioner is entitled to the grant of bail and therefore he is admitted to bail in the sum of Rs. 20,000/- with one surely in the like amount to the satisfaction of the trial court. (M.S.N.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1513 [Multan Bench] Presnet: riaz husain, J. GHULAM SADIQ-Appellant versus STATE-Respondent Crl. Appeal No. 156 of 1989, accepted on 25.1.1996. Pakistan Penal Code, 1860 (XLVI of 1860)- —S. 302/34~Murder-Offence of--Conviction for~Challenge to-Prosecution failed to prove factum of exchange of land'which allegedly served as a motive to kill deceased-It is evident from facts that appellant's involve­ment in case was conjectural-Prosecution failed to bring home guilt to appellant beyond any reasonable doubt-Appeal accepted. [P. 1517] A & B Malik Muhammad Saleem, Advocate, for Appellant. Sh. Muhammad Rahim, Advocate, for Respondent. Date of hearing: 25.2.1996. judgment Ghulam Sadiq and Ata Muhammad were challaned by Choti Police under Sections 302/34 P.P.C. for having committed the murder of Ghulam Akbar deceased. They were also charged for attempt to murder Mehr Hussain. On 29.9.1988 when the trial was in it was reported that Ata Muhammad co-accused had been murdered. 2. Vide judgment dated 6.6.1989 Ghulam Sadiq appellant was convicted under Section 302 P.P.C. and sentenced to life imprisonment and a fine of Rs. 30,000/-, in default of payment of fine, it was directed that the appellant shall suffer further rigorous imprisonment for five years and in case this amount was realized, a sum of Rs. 20,000/- shall be paid to the legal heirs of the deceased as compensation. He was acquitted of the charge under Section 307 P.P.C. 3. Brief facts as stated in the F.I.R. were to the effect that on 25.8.1986 at 7 P.M. complainant alongwith Ghulam Akbar deceased, Dost Muhammad P.W. 8 and Ashiq Hussain given up PW, who were real brothers inter se were going back to their home from their agricultural land. Ghulam Akbar deceased was ahead of them. Meanwhile appellant Ghulam Sadiq and Ata Muhammad both armed with guns .12 bore came out of their houses and raised lalkara that Ghulam Akbar and his aforesaid brother would be taught a lesson for not handing over the land given in exchange. Sadiq fired his gun from a short distance which hit Ghulam Akbar on his abdomen. Ghulam Akbar fell on the ground. Ata Muhammad fired at the complainant which did not hit him. Both appellant and Ata Muhammad ran away with their weapons of offence. Ghulam Akbar succumbed to the injuries after a while. 4. About 10 or 11 years prior to the occurrence, vide an oral exchange Ghulam, Akbar got land measuring four beghas from Ata Muhammad situated at Qaim wala. He cultivated it. Two or three years after this exchange Sadiq and Ata Muhammad asked Ghulam Akbar to give the said land back to them but he refused to do so. Ghulam Pvaza who always supported the appellant and Ata Muhammad summoned Ghulam Akbar at his Dera and told him to hand over the possession of this land to them. Ghulam Akbar did not accept this proposal. It insensed Ghulam Raza. He threatened Ghulam Akbar deceased that he would be taken to task if he opted to defy or he dug into his heals. 5. F.I.R. Exh. P.C. was recorded on 25.8.1986 on the statement of Mehr Hussain P.W. 7 complainant by Habib Ahmad S.I/S.H.O. Police | Station Choti, District Dera Ghazi Khan. He proceeded to the place of occurrence on the same day. He prepared the inquest report Ex. P.H. and injury statement Ex. P.I of the dead body of Ghulam Akbar. He collected the blood-stained earth and took it into possession vide memo Exh. P.D. He sent the dead body of Ghulam Akbar for autopsy. After post-mortem examination iaz Hussain Constable produced the last worn clothes of the deceased shirt Exh. P. 1, chadar Ex. P. 2 alongwith sealed phial containing four pellets before the Investigating Officer who took them into possession vide memo Exh. PE. On 28.8.1986 Habib Ahmad got prepared the site plan Ex. PB, - PB/1 & PB/2 from the Patwari Halqa. He arrested Sadiq appellant and Ata Muhammad on 26.9.1986. Ghulam Sadiq while in custody led to the recovery of .12 bore gun Exh. P. 3 from his house situated in village Qaim Wala alongwith its licence Exh. P. 4 which were taken into possession by him vide memo Ex. P.F. 6. On the same day Ata Muhammad also got recovered his licenced Gun, Ex. P. 5. Habib Ahmad recorded the statement of the P.Ws. and challaned the appellant. 7. Dr. Muhammad Nawaz Dilshad, P.W. 1 conducted the autopsy. On opening the thorax the Medical Officer found the following injuries on the dead body:- 1. Four circular wounds each measuring 1/4" x 1/4" in an area of IV Ik" inverted margins, situated at mid abdomen, slightly on right side, four inches supro lateral to umbilicus. It was wound of entiy. There was wound of exit on back of left side of abdomen, three inches from mid line, with everted edges 1/3" x 1/3" size. Blood was present on the mouth of exit wound. 2. An Ante mortem circular bruise measuring 1" x 1" situated IV infro lateral to above, mentioned of entry and 4V umbilicus on front of abdomen. The abdominal aorta was punctured. The doctor observed that peritonium was perforated, corresponding to injury No. 1. Abdomen cavity was full of blood. Stomach contained partly digested food. Small intestines were perforated corresponding to injury No. 1 and digested food was present in the intestine. Bladder was full of urine. All other organs were healthy. Death according to him had occurred on account of shock and haemorrhage. The injury No. 1 was dangerous to life and was sufficient to ^ cause death in the ordinary course of nature. The time between the death and injury was within an hour. 8. After close of prosecution case the statement of the accused under Section 342 Cr.P.C. was recorded to which he pleaded not guilty. He got his statement recorded under Section 340(2) Cr.P.C. on oath wherein he stated hat he was innocent and in fact he was involved in this case by the complainant party due to previous enmity. 9. Ocular version was furnished by P.W. 7 Mehar Hussain and P.W. 8 Dost Muhammad. Recovery of weapon of offence was attested by Mehar Hussain P.W. 7. P.W. 9 was the Investigating Officer whereas P.W. 1 Dr. Muhammad Nawaz Dilshad conducted the autopsy. The rest were the formal witnesses. 10. Learned counsel for the appellant submits that the appellant deserves acquittal of the charge on the following grounds:- (a) That the prosecution witnesses were hostile to the appellant and his co-accused Ata Muhammad. Their evidence, therefore, could not be believed. (b) That there was sufficient material on the record to demonstrate that the appellant and his co-accused Ata Muhammad (deceased) had serious differences with each other because their families had been feuding for years over a family matter. It could not, therefore, be justified with cogency that they co luded inter se to kill the deceased. (c) That the appellant failed to prove the motive as there was no sufficient evidence to conclude that Ata Muhammad had in fact exchanged the land with Ghulam Akbar deceased. 11. I have perused the record minutely with the assistance of the learned counsel of both the parties. 12. The learned lower Court has disbelieved the evidence of recovery of incriminating weapons and rightly so for the reason among others that these weapons were not sent to the Forensic Science Laboratory. 13. P.W. 7 Mehar Hussain and P.W. 8 Dost Muhammad are the real brothers of the deceased. Their enmity with Ata Muhammad is established on the record. It was conceded by P.W. 7 that their real enemy was Ata Muhammad and the appellant's role was repulsive to the extent that he sided with his co-accused. There was many houses around the place of occurrence but there was nothing on the record, why the inhabitants of the area did not reach there at the relevant time. In view of above no implicit reliance can be placed upon their statements. 14. Thee alleged agreement of sale was admittedly an oral one whereby Ata Muhammad and Ghulam Akbar deceased exchanged the land with each other in Mauza Qaim Wala. This agreement took place 10/11 years prior to the occurrence but it was intriguing to observe that it was neither reduced into writing nor was demanded so by either party. The evidence as to who was present when the parties agreed to exchange the land was materially discrepant. It was stated by P.W. 7 that Ghulam Raza Khan had asked Ghulam Akbar deceased to return the exchanged land to the accused persons. However, in cross-examination he conceded that he was not present when his brother Ata Muhammad was asked to return the land. There was inconsistency in the statements of the witnesses regrading the presence of the persons when Ghulam Raza Khan made the aforesaid demand. Incorporation of Ghulam Akbar's name as tenant in Khasra Gardawari or as a co-sharer in the record of rights did not lead to the only inference that the deceased had exchanged his land with Ata Muhammad or Ghulam Akbar possessed the same under the agreement of sale. It can, therefore, be safely concluded that the prosecution failed to prove the factum of exchange of land which allegedly seved as a motive to kill the deceased. 14. From the resume of above facts it was evident that the appellant's involvement in the present case was conjectural. The prosecution has failed to bring home the guilt to the appellant beyond any reasonable doubt. The appellant, therefore, is acquitted of the charge. He is in the Jail. He shall be released forthwith if not required to be detained in any other case. (K.A.B.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Multan) 1517 Present: muhammad naseem chahudhri, J. RASOOL BAKHSH-Petitioner versus STATE-Respondent Crl. Revision No. 89/1996 accepted on 9.7.1996. (i) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 552—Restoration of abducted female—Case of—District Magistrate issued orders on ground that there was disparity of ages between spouses and that Rasool Bakhsh desired to make sale of his wife-Mst. Hasina was got recovered-She was lodged in Z>ar«/wAm/nan--HighCourt is of the view that this is a case of transgression of authority on the part of District Magistrate who has interfered in matrimonial life of spouses without any legal justification by invoking provisions of S. 552 Cr. P.C.—A11 proceedings nothing but abuse of process of law-Held : Impugned order to be without jurisdiction, without authority and illegal—Petition accepted. Pp. 1517 & 1519] A & B Mr. Abdur Rashid Sheikh, Advocate for Petitioner. Mr. Syed Mumtaz Ahmed Gilani, Advocate, for Respondents 2 and 3. Date of hearing: 9.7.1996. order Rasool Bakhsh petitioner is the husband of Mst. Hasina. Allah Bakhsh a "Phoophi Zad" of Mst. Hasina filed an application before the District Magistrate, Muzaffargarh under section 552 Criminal Procedure Code for her recovery from the custody of her husband on the ground that there was disparity of ages between the spouses and that Rasool Bakhsh desired to make sale of his wife. The statement of Allah Bakhsh was recorded. Mst. Hasina was got recovered. She was lodged in the Darul Amman. She was examined when she stated that her forged Nikah was performed. The statement of her "Khala" Mst. Sahib Mai was also recorded. Mst. Hasina was handed over to her "Khala" Mst. Sahib Mai and she was directed to look after her and to many her according to her (Mst. Hasina's) desire. 2. Feeling aggrieved Rasool Bakhsh petitioner ha? filed this revision petition against the final order dated 26.6.1996. 3. I have heard the learned counsel for the parties as well as the learned District Magistrate, Muzaffargarh and gone through the record. The main contentions of the learned counsel for the petitioner are that neither Allah Bakhsh nor Mst. Sahib Mai respondents No. 2 and 3 had the locus standi to make application and to get the person of Mst. Hasina respectively nor the District Magistrate, Muzaffargarh was competent to proceed under section 552 Criminal Procedure Code as Mst. Hasina Mai is the wife of Rasool Bakhsh petitioner. It is added that the impugned order is illegal as the District Magistrate while proceeding under section 552 Criminal— Procedure Code could not pass the order for the marriage of Mst. Hasina by "Khala" as she is the wife of Rasool Bakhsh petitioner and was not a woman being unlawfully detained. On the contrary learned counsel for respondent No. 2 and 3 argued that Mst. Hasina had instituted a suit for dissolution of marriage on 4.7.1996 who could not be handed over to Rasool Bakhsh petitioner with whom she was not admitting her marriage. 4. For the proper disposal of this dispute Section 552 of the Code of Criminal Procedure is reproduced as under:- "552. Powers to compel restoration of abducted femal s: Upon complaint made to District Magistrate on oath of the abduction or unlawful etention of a woman, or of a female child under the age of sixteen years, for any unlawful purpose, he may make an order for the immediate restora­ tion of such woman to her liberty, or of such female child to her husband, parent guardian or other person having the lawful charge of such child and may compel compliance with such order, using such force as may be necessary." 5. According to Rasool Bakhsh petitioner who moved the application under section 552 Criminal Procedure Code Mst. Hasina was the wife of Rasool Bakhsh petitioner. The disparity of ages between the spouses would not confer the jurisdiction upon the District Magistrate to proceed under section 552 Criminal Procedure Code. Mst. Hasina being the wife of Rasool Bakhsh could not be held to be under the unlawful detention of her husband especially when respondents No. 2 and 3 have no better status in the matter. Mst. Aziz, Mst. Sharifan Bibi and Mst. Hanifan Mai (sisters) and one brother namely Taj-ul-Malook of Mst. Hasina have appeared today who has specifically supported the case of Rasool Bakhsh petitioner regarding his better treatment towards his wife Mst. Hasina. My view is that this is a case of transgression of authority on the part of the District Magistrate who has interfered in the matrimonial life of the aforesaid spouses without any legal justification by invoking the provisions of Section 552 Criminal Procedure Code. All the proceedings conducted by him are nothing but the abuse of process of law and the impugned order dated 26.6.1996 in the matter, as such, is held to be without jurisdiction, without authority and illegal. 6. For what has been said above, I accept this Criminal Revision Petition, set aside the impugned order dated 26.6.1996 and dismiss the application filed under Section 552 Criminal Procedure Code by Allah Bakhsh respondent No. 2 before the District Magistrate, Muzaffargarh. The husband, the three sisters and the brother of Mst. Hasina are allowed to take her away with them to the house of her husband. (A.P.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1519 [Multan Bench] Present: CH. KHURSHID AHMAD, J. GHULAM QADIR-Appellant versus STATE-Respondent Crl. Appeal No. 65 of 1987, accepted on 23.5.1996. Pakistan Penal Code, 1860 (Act XLV of I860)- —-Ss. 325/342/148/307/302/149--Murder-Offence of-Conviction for- Challenge to-I.O. had not appeared as witness in court-Prosecution has failed to prove formation of any unlawful assembly and commission of offences in furtherance of common object-Prosecution has also failed to prove charge U/S. 342 PPC--Accused are acquitted from charge U/S. 148 PPG and, therefore, provisions of section 149 PPC shall not apply and accused shall be responsible for act committed by them individually- Grievous and fatal injury was attributed to accused who has since expired and conviction cannot be recorded against a deceased-Except one all other accused are extended to benefit of doubt and are acquitted of charge U/S. 325 PPC-Allah Wasaya was attributed specific grievous injury on person of P.W. 14 his conviction U/S. 325 PPC is upheld--He is facing protracted trial since 1979 and had been in jail for a long time-Sentence awarded to him by trial court is reduced to sentence already undergone by him-Orders accordingly. [P. 1525] A, B, C D & E Sardar Muhammad LatifKhan Khosa, Advocate, for Petitioner. Mr. Zafar Mahmood Anjum, Advocate, for State. Syed Mustafa Ahmad Shah, Advocate, for Complainant. Date of hearing 23.5.1996. judgment The appellants Ghulam Qadir, Hazoor Bakhsh, Shabbir Ahmad, Munir Ahmad, Saeed Ahmad and Allah Wasaya were convicted by Sessions Judge Rajanpur for the commission of murder of Muhammad Sharif and for causing injuries to Kabir Khan, Nazir Ahmad and Ali PWs. They were charged u/Ss. 325 & 148/342/307/302/149 PPC. The case was registered at P.S. Jampur on 30-1-1979 on the complaint made by Allah Ditta PW. During the trial Ahmad Bukhsh died whereas Allah Bukhsh and Mumtaz Ahmad, were acquitted. The appellants and Elahi Bukhsh co-accused, who was not present in court, were convicted on 28.2.1987 u/S. 325/148/1499/342 PPC. They were all sentenced to undergo R.I. 7 years and a fine of Rs. 1,000/- and in default of payment of fine they further R.I. 2 months each u/S. 325/149 PPC, sentenced to undergo R.I. for one year u/S. 148 PPC and further sentenced u/S. 342/149 PPC to under-go R.I. for one year each. All the sentences were ordered to run concurrently and the accused were given benefit of Section 382-B Cr.P.C. with regard to substantive sentences. Elahi Bukhsh accused was not present on the date of conviction. It was ordered that his warrant should be sent to the District Magistrate for his arrest and committing him into jail whenever he is traceable. 2. The accused were initially tired by Sessions Judge D.G. Khan and conviction was recorded against all the accused persons. The appeal filed by e convicts and the revision was filed by the complainant. The judgment of conviction passed by Sessions Judge was set aside on the ground that he had neither acquitted uor sentenced all the remaining accused for the commission of offence u/S. 304 Part-II PPC and appellant Ahmad Bukhsh and the case was remanded only to hear the arguments and rewrite the judgment without recording any evidence. 3. Briefly the facts are that Allah Ditta son of Elahi Bukhsh made a statement before Shakar Ali ASI on 30-1-1979 at 10.30 P.M. at P.S. Jampur who recorded FIR No. 23/1979 u/S. 307/325/342/148/149 PPC. The same was read over to the maker of the statement who signed the same in token of its correctness. Muhammad Sharif injured PW subsequently died and offence u/S. 302 PPC was added. It was alleged in the statement that at Asarvaila on the said day he was present in his fields and Muhammad Sharif son of Rahim. Bukhsh was grazing his sheep when all the 10 accused mentioned therein came armed with Sotas and Ahmad Bukhsh opened the attack by giving a sota blow on the head of Muhammad Sharif. Elahi Bukhsh gave a sota blow on the right eye of Muhammad Sharif who fell down and Allah Bukhsh, Munir, Shabbir, Allah Wasaya, Hazoor Bukhsh, Ghulam Qadir , Mumtaz and Saeed gave successive sota blows to the Muhammad found guilty for the crime. In this context he made reference to PLD 1956 SC (Indian) 59 and 1991 SCMR 241. Mr. Amanullah Khan Kanrani, Advocate, contended that delay in recording confessional statement had not been considered fatal for the prosecution, by Hon'ble Supreme Court in a Judgment reported in 1995 SCMR 1615. We are quite in agreement with Mr. Amanullah Kanrani, Advocate, on the point that unless it is not proved that confession of an accused is the resulted of coercion, threat, pressure, per se delay in recording it, is not sufficient to disbelieve the same, in view of the Hon'ble Supreme Court, taken in the case of Syed Sharifuddin Pirzada vs. Sohbat Khan (PLD 1972 SC 363). Therefore, testing .the case in hand at the touch stone of the principles laid down by Hon'ble Supreme Court in the reported Judgments and also having gone through the statement of PW-Mazhar Mehmood, Magistrate, we are of the opinion that as for as the voluntariness of the confession of Bangui Khan is concerned, there is not doubt about it. Now we are confronted with a question; whether a retracted confession can be accepted to the extent of its inculpatory version, without seeking independent corroboration. In this behalf, Hon'ble Supreme Court, in Nqjib Raza Rehmani v. The State, (PLD 1978 SC 200), laid down as under:- "Another illegality in the Judgments under appeal is that the conviction of the appellant by both the Courts is really based, as I explained on this so called confession only. But as this so-called confession was repudiation of liability what the Courts did was that they accepted those passages in the statement Ex. P.Z which appeared in their opinion to support the case of prosecution and they rejected the exculpatory part of the statement. Mr. Ismail submitted that it was open to a Court to base a conviction solely on the confession or on the statement of an accused, but in that event the court could not reject that part of the statement or confession which went against the prosecution case. The submission is correct. Mahajun J. observed in Hamamani Govind Nargundi and another v. State of Mahyha Pradesh at page 350: "It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him.' I agreed with these observations and on this ground also it is clear that the appellant's conviction was illegal and that it was a case of no evidence." In 1983 SCMR 76, following principle was laid down :-- "The Judgment of the High Court makes it abundantly clear that ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the 'defence version'. There was no proved or established facts to test the defence version. This distinguishes the decision in Inamuddin's case which had proved or established facts. In Balmakund case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exclupatory part of the statement of the accused to be so unworthy of belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception :- (a) Where there is other evidence a portion of the confession may, in the light of that evidence be rejected while acting upon the remainder with the other evidence. (b) where there is not other evidence, the Court cannot accept the inculpatory element and reject exculpatory element as inherently incredible. In the case of Tahim Bux also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety. Above principles were also re-iterated in PLD 1990 SC 484 and PLD 1991 SC 150. The confessional statement of Bengul Khan can be divided into two parts, the one in which he contends that before Maghrib prayer, he went to the office of Mir Muhammad Nawaz Marri, the then Advocate, for consultation in connection with the murder of Amir Hamza Bugti, alongwith the accused Khair Jan and another person and when they both were sitting with him, firing reports were heard from outside and the second portion, where he states that in the meanwhile after firing Sanaullah in Balochi language, in presence of Advocate Mir Muhammad Nawaz Marri, told Azizullah that Sallal Bugti all of a sudden came in front of him and he was killed. (It may be noted that Sanaullah and Azizullah who is also known as Qurban Bugti, according to the version of Amanullah, Advocate, are absconding accused). On listening to Sanaullah he told him that why he has killed Sallal Akbar Bugti as it was not in their plan, because Akbar Khan Bugti and Saleem Akbar Bugti are their enemies. Above part of his statement inc v ates that he excludes himself, Khair Jan and Azizullah alias Qurban from murder of Sallal Akbar Bugti, by showing their presence, inside the office of Advocate and at the same time he speaks of criminal conspiracy to commit murder of Nawab Akbar Bugti and Saleem Akbar Bugti, therefore, following the above principle laid down by Hon'ble Supreme Court, the confessional statement is either to be accepted in toto extending the benefit of its exclupatory portion to accused or not to be accepted to the extent of inculpatory portion without independent corroboration. As for as exculpatory part of his evidence is concerned it appears to be false in view of evidence available on record and discussed in detail herein-above. So for hatching criminal conspiracy is concerned, in view of the words uttered by him in confessional statement, alone on this evidence conviction possible cannot be recorded without independent corroboration, as held in 1983 SCMR 76 and other cases. PWs Payara Bugti, Arsala Bugti and Musa Parman, though deposed that Wadera Khan Muhammad Bugti convened a meeting to commit the murder of Nawab Akbar Bugti and Saleem Akbar Bugti, but their evidence is inadmissible being hear say. Further they have also not stated that the appellant Bangui Khan was party to that meeting or not. therefore, it is held that the inculpatory part of confessional statement of Bangui Khan is also not acceptable for want of corroboration. We have independently reviewed total evidence available on record, including the statement of PW-Muhammad Ejaz to determines; whether Appellant Bengul Khan is liable for commission of offence, on sharing common intention with other accused. In this behalf, we have also gone through the Judgment of Hon'ble Supreme Court reported in PLD 1991 SC 923, in which section 34 PPC has been considered elaborately. But we are satisfied to hold that prosecution evidence lacks in establishing this factor as well, against him. Whereas cases of other appellants are concerned, the prosecution has successfully established that all of them shared common intention with the absconding accused as will, and committed the murder of Sallal Akbar Bugti. It may be noted that regarding the Appellant, except Bangui Khan, it has been proved that they were present in the black coloured Datsun duly armed with lethal weapons, recovery of which was subsequently made to establish their participation in the commission of offence, qua, the identification test parade, recovery of crime empties coupled with the Fire Arm Expert Report, Chemical Expert Report, medial evidence, the testimony of PWs Payara Bugti and Arsalal Bugti, whose statements have been found divisible, in view of strong corroborative evidence, discussed herein-above, following the principles of sifting grains out of chaff, and also considering the statement of these three Appellants on oath injuxta position with the prosecution evidence and believing the motive which Appellants themselves have disclosed in their statements on oath, supported by undisputed recovery of application dated 26th July, 1989, on the name of Chief Justice, Balochistan High Court, application dated 16th November, 1991, addressed to Assistant Commissioner, Sui, by Amir Hamza Bugti and application of Haji Mir Wadera Khan, Muhammad Khan, Chief Mokadam Kalpur Bugti, addressed to Assistant Commissioner, Sui, concerning arrest of Accused/murderers of Amir Hamza Bugti, in which he alleged that his son has been murdered at the instance of Sardar Akbar Khan Bugti and his son Saleem Akbar Bugti, (Ex. P/24-A), as well as relying on the Judgments reported in PLD 1976 SC 452, PLD 1991 SC 923, PLD 1995 SC 488 and PLJ 1996 SC 101, we are inclined to hold that they have been rightly found guilty for the commission of offence under section 302 readwith 120-B/34 and , under section 324 PPG, vide impugned Judgment. For the discussion made herein above, the Judgment dated 17 th November, 1994, passed by Special Judge for Suppression of Terrorist Activities Court, Quetta, against Appellants Khawand Bakhsh son of Gella, Sabz Ali son of Kella and Khair Jan son of Ellahi Bakhsh, is upheld. Consequently their appeal is dismissed. Whereas appeal of Bangui Khan son of Jam Khan is accepted and to his extent the Judgment is set aside. He be set at liberty, if not wanted in any other case. (K.K.F.) Appeal party accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1554 (DB) [Multan Bench] resent: rana muhammad arshad and syed zahid hussain bukhari, JJ. SHARAFAT ALI-Petitioner versus STATE-Respondent Crl. Misc. No. 2/96 in Crl. A. NO. 78/96, accepted on 23-1-1996. Compromise-- —Offence U/Ss. 302/324/148/149 of Pakistan Penal Code, 1860-Murder-- Offence of-Compromise effected of-Legal heirs of deceased, have effected compromise with free will and they have genuinely forgiven appellant-­ High Court allow compromise-Death sentence is not confirmed-Appeal accepted. [P. 1555] A & B Mr. Altaf Ibrahim Qureshi, Advocate for Appellant. Date of hearing: 23.1.1996. judgment Ran 9 Muhammad Arshad, J.--Muhammad Ahmed, Mehboob Ahmad, Sharafat All, Farooq and Abdul Aziz, were tried for the murder of Jamil Ahmed alias Nikka, by the learned Additional Sessions Judge, Pakpattan Sharif, who vide his judgment dated 20.4.1994, convicted Sharafat All, appellant herein under section 302 PPG and sentenced him to death with a fine of Rs. 30,000/- and in default of payment whereof to undergo additional two year's R.I. He was further directed to pay compensation of Rs. 20,000/- as contemplated under section 544-A Cr. P.C. to the legal heirs of the deceased and in default of payment thereto, to undergo further one year R.I. 2. The aforesaid judgment was assailed through the present appeal. The confirmation of death sentence under section 374 Cr. P.C. was also sought. Both the matters are pending before us. During the pendency of the aforesaid matters, an application on behalf of the appellant was moved that he had effected compromise and the legal heirs of Jamil Ahmed alias Nikka, forgiven him in the name of Almighty Allah, therefore, he be acquitted. 3. In order to verify the authenticity of the application, a direction was given to produce the legal heirs of Jamil Ahmed alias Nikka and accordingly Muhammad Hanif and Fatima Bibi, father and mother of the deceased respectively, have appears. Their statements have been recorded eparately wherein they have stated that the deceased was unmarried and they had effected compromise with the appellant and he had been forgiven in the name of Almighty Allah. They have also stated that they have effected compromise with their free will and consent. There is not other legal heirs of the deceased, as per the statements of father and mother of the deceased. The aforesaid legal heirs of the deceased have been identified by Mushtaq Ahmed son of Umer Din, Lamberdar of Chak No. 19/S.P. Pakpattan. His statement on oath has also been recorded. 4. After going through the statements of the legal heirs of the deceased, Jamil Ahmed alias Nikka we are convinced that they have effected compromise with their free will and they have genuinely forgiven the appellant to lead their lives cordially in future. 6. In these circumstances, while accepting their statements, we allow the compromise consequent thereupon, the appeal is accepted, conviction and sentence of the appellant is st aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. The death sentence is NOT confirmed. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1556 Present: SYED DEEDAR HUSSAIN SHAH, J. AZAM KHAN--Applicant versus STATE-Respondent Special Criminal Bail Application No. 22 of 1996, dismissed on 16.4.1996. Bail- —-S. 497 Cr.P.C.»Bail«Grant of--Prayer for--Offence u/S. 156 (1) (89) of Customs Act, 1969-Applicant intercepted at Air-port on his arrival from Dubai-Recovery of 303.51 Tola of Gold-Contentions, co-accused already granted bail by trial court-Case of dishonest investigation—Statements of recovery witnesses recorded after 5 days of arrest-Held : Accused named in promptly lodged F.I.R.--Case of co-accused is quite different and distinguish as no recovery has been alleged against him-Investigation conducted by another officer and not the complainant~Mas/zfr«ama of recovery also fully supports case of prosecution, mashirs are admittedly of locality-Offence falling within prohibitory clause of S. 497 Cr.P.C.—Rule of consistency not applicable-No substance in bail application-Petition dismissed. [P. 1561] A, B & C PLD 1972 SC 277,1993 PCr. L.J 2135 ref. PLD 1972 SC 81 fol. Mr. Shoukat Hussain Zubedi, Advocate for Applicant. MM. Roshan Essani, D.A.G. for State Date of hearing: 16.4.1996. order Facts of the matter are that one Ahmed Khan Baloch, Senior Preventive Officer, Custom House, Karachi, lodged report on 17-1-1996, which is as under :-- "On 17-01-1996 while I was performing my evening duty at JPC QIAP, an information was received by IPS Mr. Jalil Brohi to the effect that a passenger namely Azam Khan would be arriving from Dubai by PIA Flight PK-214 and would be carrying gold concealed in his baggage. Pursuant to the above information, a team was constituted Which maintained incognito surveillance and spotted the passenger. As soon as the passenger collected his baggage from the conveyer belt which comprised of two checked ieces of baggage, he started moving out of the hall through the green channel. He was intercepted at the exit gate and asked to declare whether he was carrying any contraband gold in his baggage or person, to which he replied in negative. Being dis-satisfied by his declaration his baggage, which was heavy and bore Tag No. XH 272451, XH 272452, was brought to the screening machine in presence of two independent mashirs namely Naseem Gul and Muhammad Shaukat. Screening of the bicycle revealed the presence of some substance in the frame of the said bicycle. The frame of the bicycle was broken by the staff which yielded the recovery of gold chains, which on weightment before the above said mashirs was found to be 303.51 tolas. The gold chains so recovered alongwith the bicycle, travelling documents, baggage and claim tags etc., were seized vide a mashirnama and the passenger/accused was arrested and served with notice under Section 171 of the Customs Act, 1969. Preliminary investigations revealed that the accused was received by a I.B. personnel who was with him till he intercepted and brought to the screening machine at which point the I.E. personnel disappeared from the scene. Efforts are being made to identity and apprehend the I.E. personnel involved in the offence. Further investigation is in progress." 2. After usual investigations final charge-sheet in this case bearing No. 5/96 was filed in the Court of learned Special Judge (Customs & Taxation) Karachi on 7-3-1996. Bail application on behalf of the accused/applicant was filed in the trial Court which was rejected by learned Special Judge (Customs & Taxation) Karachi, vide order dated 18-2-1996. 3. The applicant has filed this bail application with the prayer that this Court be pleased to release him on bail. 4. I have heard Mr. Shoukat Hussain Zubedi, learned counsel for applicant, who has contended that co-accused namely Muhammad Akram has been granted bail by the learned trial Judge; that since both the accused are facing trial under section 156 (1) (89) of the Customs Act, 1969, as such principle of consistency will apply and the applicant is also entitled to be released on bail; that according to the FIR the applicant had two checked baggages on which tags were attached and it is not the case of the prosecution that said baggages contained any gold; that it is not the prosecution case that the checked baggages of the applicant were opened and the alleged recovery was made from therein by the Seizing Officer, in presence of the witnesses; that there appears to be uncertainty as to whether the said baby bicycle was in the possession and custody of the present applicant or not; that if the bicycle was the third time of the applicant, in that event there should have been a tag attached it, but no such tag has been recovered; that the investigation in this case appears to have been conducted by the Investigating Officer while sitting in his office; that statements of PW- Nasim Gul and PW-Muhammad Shoukat were recorded on 22-1-1996; that the case requires further enquiry on the point of recovery of bicycle; and that this is a case of dishonest investigation. 5. Mr. Shoukat Hussain Zubedi, learned counsel for applicant has referred following authorities :-- 1. PLD 1972 S.C. 277 case of Amir vs. The State :-- In this matter the petitioner was one of the accused persons for the murder of Jan Muhammad. A cross-case arising out of the same occurrence was registered against the complainant party for the murder of one Yasin, who belonged to the petitioner's party. The occurrence arose over a land dispute. The petitioner and his co-accused had applied to the High Court for their bail after it was rejected by the learned Sessions Judge. A learned Single Judge in the High Court had granted bail to the co-accused of the petitioner but had rejected his prayer for bail. It was urged before the learned single Judge in the High Court that one of the alleged eye-witnesses named Manzur, who lodged the FIR against the accused and who was also one of the accused in the cross-case, had stated in his statement recorded by the committing Magistrate that the petitioner (Amir) had fired his gun at Jan Muhammad after the latter had fired at Yasin, killing him, and therefore, a complete case of the exercise of the right of self-defence for the petitioner was made out. The learned Judge, however, did not consider this to be a good ground for bail for the reasons, firstly, that ultimately it may turn out to be a case under section 304, Part I, P.P.C., for exceeding the right of self-defence, the punishment for which extends to transportation for life. Secondly, the learned Single Judge has observed that ultimately the case may turn to be one of a free fight between the two parties. In this back-ground the learned counsel for the petitioner submitted before the Hon'ble Supreme Court that the other eye-witnesses, who have been examined in the case, have made statements in the same strain. If this is correct and there is no other evidence to connect the petitioner with the crime of murder, and his right of self-defence is completely established he can press for his discharge or acquittal, as under section 96 of the Penal Code "Nothing is an offence which is done in the exercise of private defence". In this back-ground the learned Supreme Court observed as follows :— "There is no mention in the order of the learned Single Judge that he has also examined the statements made by witnesses other than P.W. Manzur. We have, therefore, directed the learned counsel for the petitioner to renew the petitioner's application for bail before the learned Single Judge, who will consider the whole case for purposes of bail on the data that is available. It may also be observed that even for purposes of bail, law is not to be stretched in favour of the prosecution. If any benefit of doubt arises, it must got to the accused." 6. Mr. Muhammad Roshan Essani, learned D.A.G. has contended that investigation is conducted by Fareeduddin, I.O. who has recorded 161 Cr.P.C. statements; that declaration was not filed by the accused as required under the Customs Act; that two checked pieces of baggages bore tag No. XH 272451, XH 272452; that it is not the case of the prosecution that I.B. personnel was arriving from Dubai; that full particulars about the incident, recovery and baby bicycle are mentioned in the FIR and other relevant documents, seized and secured by the prosecution; that huge quantity of gold of 303.51 tolas is recovered and seized by the Customs authorities. 7. Mr. Muhammad Roshan Essani, learned D.A.G. has referred following authority :-- 1. 1993 P. Cr. L. J. 2135 case of Qamar Bughio vs. The State :- The rule laid down in this authority is on the point of consistency, which is as under :-- "It would be seen that the rule of consistency is not absolute and inflexible. It can be applied only when a person, on merits, is entitled to bail. If a thing is not permitted to be done directly, it cannot be allowed to be done indirectly. When a person is not entitled to bail, on merits, he cannot claim it solely on the principle of consistency. In fact, the principle of consistency has a very limited scope and while applying his principle, the facts of each case shall be the deciding factor for the grant or refusal of bail. In the instant case, the applicant on merits is not entitled to bail. Therefore, he cannot be admitted to bail on the above principle." 8. I have considered the submissions made by the learned counsel for the parties and I have also perused the material placed with the case. The prosecution story is veiy short, consistent and convincing from lodging of the FIR upto the finalization of the charge-sheet against the accused/applicant According to the prosecution since the passenger (applicant) collected his baggage from the conveyor belt which comprised of two checked pieces of baggage, he started moving out of the hall through the Green Channel and was intercepted at the exit gate and was asked to declare whether he was carrying any contraband gold in his baggage or person, to which he replied in negative. On being dis-satisfied, the baggage of the applicant, which was heavy and bore Tag No. XH 272451, XH 272452 was brought to the screening machi e in presence of two independent mashirs, namely Naseem Gul and Muhammad Shaukat. Screening of the bicycle revealed the presence of some substance in the frame of the said bicycle, which was broken, which yielded the recovery of gold chains, which on weighment was found to be 303.51 tolas only. The 1.0. had recorded statements of the witnesses and also prepared mashirnama of recovery on the very day i.e. 17-1-1996 at 16.45 at International Airport Jinnah Terminal, Karachi in presence of mashirs aseem Gul and Muhammad Shaukat. The mashirs admittedly are of the locality. I have also perused mashirnama which fully corroborates the contents of the FIR and so also the prosecution story. Admittedly no mali e, enmity or animosity is alleged against the prosecution. The prosecution has collected evidence and has charge-sheeted the accused for the offence. Th re is absolutely no delay in lodging of the FIR or in conducting the investigation which is conducted by another Officer and not the complainant. T e authority cited by Mr. Shaukat Hussain Zubedi is quite different and distinguish from the facts of this case. In the reported authority (1) it is mentioned that the witnesses during evidence recorded by the committal Magistrate, deposed to the fact that the petitioner Amir had fired his gun at Jan Muhammad after the latter had fired at Yasin, killing him. This aspect of the evidence was rightly considered by the Hon'ble Supreme Court and the case was remanded back with the direction to the learned Single to re­ onsider the bail pplication. 9. It would be very much pertinent to refer PLD 1972 S.C. 81 Case ofManzoor and 4 others vs. The State. In this case the D.B. has observed as follows :-- "As repeatedly held by this Court, bail in non-bailable cases is a matter within the discretion of the Courts, which has to be exercised with due care and caution on the facts and circumstances of each case. For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds, and the Court has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him. The Court's belief on the point has to rest on the accusation made in the report to the police, the nature and the credential's of the evidence, which the prosecution proposes to lead in the case, and all the other relevant circumstances surrounding the occurrence ! 10. The case of the co-accused in quite different and distinguish as no any recoveiy has been alleged by the prosecution against co-accused Muhammad Ikram, who has rightly been granted bail by the trial Judge. The accused had tried to go through the Green Channel and was intercepted at the exit gate by the Customs authorities in presence of the witnesses and his baggage was screened in screening machine, which revealed presence of some substance in the handle of bicycle. There appear no difference by mentioning cycle or baby bicycle by the prosecution in the FIR on in the statement recorded by the 1.0. or in mashirnama of recoveiy. By now it is settled law that only tentative assessment of the evidence is to be done while deciding bail application. Name of the accused/applicant is mentioned in the FIR. The prosecution witnesses in their statements recorded during the investigation, have fully supported the case of the prosecution. Mashirnam of the recovery also fully supports case of the prosecution, mashirs are admittedly of the locality. Admittedly no any enmity, malice or animosity is alleged at the hands of the prosecution and it is not appealing to a common sense as to how a huge quantity of gold worth Rs. 16,81,OOO/- can be foisted by the 1.0. The case is recently charge-sheeted. The authority cited by the learned D.A.G. is veiy much relevant and applicable so far the facts of this case are concerned. Principle of consistency cannot be applied in this case B because case of co-accused Muhammad Ikram is quite different and distinguishable, as pointed out earlier in this o der. PLD 1972 S.C. 81 is quite applicable so far the facts of the present case are concerned. 11. Prima facie, in view of the evidence so collected by t e prosecution, there are reasonable grounds to believe that the accused has committed an offence with which he is charge-sheeted and the offence falls within the prohibitory clause of section 497 Cr.P.C. There is no substance in this bail application, which is accordingly dismissed. (MAA) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1562 Present: syed deedar hussain shah, J. JAVED AKHTAR-Applicant versus THE STATE-Respondent Special Criminal Bail Application No. 13/1996, rejected on 1.4.1996. Bail-- —-S. 497 (i)-3rd proviso-Bail-Grant of--Prayer for--Statutory delay- Ground of-Contentions, that appellant's in continuous Jail custody and delay in conclusion of trial is not occasioned by him—Appellant neither previous convict nor hardened, or of desperate character-Held : Trial could not be concluded due to delaying tactics adopted by appellant- Right from date of submission of challan applicant or authorised person on his behalf moving applications for adjournments and false and frivolous applications against Presiding Officer for getting case transferred which resulted in delay of conclusion of trial-Accused not entitled to be released on bail-Petition dismissed. [P. 1572] A, B & C PLD 1991 Pesh 174,1988 SCMR 1113, PLD 1987 Qta 194,1993 SCMR 525, PLD 1986 Kar. 561, 1988 PCr. L.J. 1409, PLD 1986 Kar. 955,1995 PSC (Crl.) 955 ref. Mr. Sardar Muhammad Ishaque, Advocate for Applicant. Mr. M. Roshan Essani, D.A.G. Date of hearing: 1.4.1996. order The applicant/accused has filed this bail application. The brief facts of the case are that Dy. Director, F.I.A., C.B.C., Karachi, received a written complaint from Mr. Ghulam Muhammad, Vice President, & Zonal Chief, Habib Bank Ltd. Hyderabad, and the same was incorporated and treated as FIR. Contents of which are as follows :-- "Mr. Javed Akhtar Junejo s/o. Abdul Qadir Junejo is an employee of the Bank and he is posted at Indus Gas Company Branch of HBL, Hyderabad as Cashier. The duty assigned to the above said person besides duties of Cashier was posting of the Cheques/Voucher etc. in the books of the accounts of the Bank, which included ledgers and balancing of the same. Recently the above said person was transferred from the said branch to Zonal Officer, Hyderabad vide Transfer order. It may be further added that accused gave false credit to PLS A/c No. 1512 of Sikandar All Jatoi and PLS A/c No. 1800 of Muhammad Nafees of Rs. 4,00,000/- and of Rs. 1,00,000/- respectively and in order to cover-up this false credit he gave false debit to account No. CD-100 of the Sui Southern Gas Company Limited Muhammad Nafees has withdrawn the said amount of Rs. 1.00 lac. It is further submitted that the examination and the checking of books of the accounts and vouchers of the said branch where the accused was posted is in progress to find out the further cases of mis-appropriation committed by the said accused with connivance of others, which will be submitted 'on the completion of the investigation by the Bank's Officials in due course of time. From the above facts it is clear that accused has committed fraud, forgery and mis-appropriation and criminal breach of trust with the connivance of the other staff members and parties shown above and which may be further unearthed during the investigation." After usual investigation the applicant/accused was charge-sheeted before the Court where his bail application was rejected by the learned Special Judge (Customs & Taxation) Karachi, vide order, dated 4.10.1995. I have heard Mr. Sardar Muhammad Ishaque, learned counsel for the applicant, who has pressed only ground of statutory delay on behalf of the applicant. According to the learned counsel, the applicant/accused is in jail custody since June 1993 and the trial has not yet concluded and the proviso 3 of 497, Cr.P.C. is applicable to his case. The relevant grounds urged by the learned counsel are as follows :-- 1. That the accused is in judicial custody since June, 1993 and the trial has not yet concluded and the proviso 3 of 497, Cr.P.C. is applicable in the present case. 2. That the custody of the applicant is continuous and no adjournment was sought on his behalf and further the delay in the trial cannot be attributed to the applicant. Diary sheet is filed herewith for the perusal of this. Honourable Court. 3. That the learned Trial Court termed the applicant as desperate character and declined the bail application. That the finding of the Trial Court is not inconsonance of the law laid down by the Supreme Court of Pakistan as held in 1993 S.C.M.R. page 525. 4. That the applicant was never convicted and there is no conviction on record and the mere pendency of the cases cannot be termed as hardened or desperate character and the discretion in favour of the applicant on the point of delay may be exercised. Learned counsel has cited the following cases : 1. PLD 1991 Peshawar 174 Sultan Pervaiz v. The State. 2. 1988 SCMR1113 Maunder and other v. The State. 3. PLD 1987 Quetta 194 Muhammad Hashim v. Nabi Dad and another. 4. 1993 SCMR 525 Jalal v. Allahyar and another. 5. PLD 1986 Karachi 561 Rustam v. The State. 6. 1988 P.Cr.L.J. 1409 Aijaz Ahmad v. Tasawar Haider and another. 7. PLD 1986 Karachi 224 Rahim Bux and others v. The State. 8. 1995 PSG (Cl-1.) 955 Jaggat Ram v. The State. I have also heard Mr. M. Roshan Essani, learned D.A.G. for the State, who has alleged that the delay whatever is not on the part of the prosecution but the accused/applicant is responsible for such delay and in view of the provisions of Section 497 (3) & (4) which are as follows :-- "(Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail (a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) who, being accused of an offence punishable with death, has been detained for such offence for a ontinuous period exceeding two years and whose trial for such offence has not concluded : Provided further that the provisions of the third proviso to this sub-section shall not apply to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism.)" Mr. M. Roshan Essani, learned D.A.G., has drawn my attention to the case diaries filed by the learned counsel for the applicant/accused. It would be very much pertinent to reproduce here some of the relevant case diaries which are as under :-- "21.3.1994 Mr. Israr Ali, PP, for the State present. Accused present in custody. Mr. Hakim Ali Siddiqui, Advocate has filed power on behalf of the complainant i.e. H.B.L. alongwith application for adjournment. Order passed on the application. "Application granted." Complainant Ghulam Muhammad is present but he was not examined on the request of accused who has submitted an application for adjournment on the ground that he will engage another counsel to represent himself. By consent and on the request of Mr. Hakim Ali Siddiqui, the case is adjourned to 31.3.1994. Complainant is directed to appear on the next date alongwith the relevant documents." 31.3.1994 Mr. Israr Ali, PP, for the State present, assisted by Mr. Hakim Ali Siddiqui, Advocate for complainant/HBL. Accused Jawaid Akhtar Junejo present in custody. He has submitted an application that he will not in a position to engage an advocate to represent him. Deposition of PW-1 Ghulam Muhammad (Ex. 4) partly recorded. He has produce documents Ex. 4/1 to Ex. 4/4 in his evidence. Further examination-in-chief is reserved for want of time. Adjourned to 7.4.94 for further evidence. PW-1 is directed to be present on the next date. Accused remanded to custody to be produced on next date." "7.4.94 Mr. Israr Ali, PP, for the State present. Accused Jawaid Akhtar Junejo present in custody. Complainant Ghulam Muhammad is present. He was examined in other connected cases which are also fixed today. Accused remanded to custody to be produced on 21.4.94." "21.4.1994 Mr. Israr Ali, PP, for the State present assisted by Mr. Hakim Ali Siddiqui Advocate for the Bank. Accused Javed Akhtar Junejo present in custody alongwith his counsel Mr. Shoib Shibli, Advocate. Complainant Ghulam Muhammad is present but he was not examined as Mr. Shoib Shibli, Advocate appearing on behalf of accused request for adjournment. He has submitted an application for the same purpose. By consent the case is adjourned to 28.4.94, for further examination-inchief of complainant Ghulam Muhammad. Complainant is directed to attend." "27.6.94 Mr. Israr Ali, PP for the State present. Mr. Hakim Ali Siddiqui, Advocate for HBL present. Mr. Shoib Shibli, Advocate for accused present. Accused Jawaid Akhtar Junejo, present in custody. Heard three applications filed by accused dated 21.3.94, 28.4.94 and 19.5.94. The accused was not able to point out any provision of law through which this Court is competent to implicate the prosecution witness as co-accused in this case. In the circumstances these applications are rejected. However, accused will be at liberty to file any private complaint before this Court or to adopt any other legal proceedings as available in law. The examination-in-chief of PW-1 Ghulam -^_ Muhammad is completed. Cross-examination is reserved on the request of Mr. Shoib Shibli, Advocate and with consent of PP and Mr. Hakim Ali Siddiqi. To come up on 6.7.1994 for cross-examination of PW-1. Witness directed to attend. Accused remanded to custody to be produced on the next date of hearing." "6.7.94 Mr. Israr Ali, PP, for the State. Mr. Hakim Ali Siddiqui, Advocate for HBL. Mr. Shoib Shibli, Advocate for accused called absent. Accused produced by Jail authorities. P.W-1 Ghulam Muhammad is present in the Couit and is available for cross examination. Accused has filed an application withdrawing Power/Vakalatnama of his counsel and states that he will cross examine the P.W. by himself. He has also prayed for supply of certified copies. Office is directed to supply him all the copies as prayed by accused on payment of usual costs. In the interest of justice and with the consent of PP and Mr. Hakim Ali Siddiqui, Advocate the case is adjourned to 13.7.94. On 30.6.94 an application was received in the office of this Court from accused Javed Akhtar Junejo. From the contents of application it appears that the accused has raised plea of acquittal u/s. 249-A Cr.P.C. On the last date of hearing I directed Mr. Shoaib Shibly, Advocate who at that time was representing accused that he should file application in proper form on behalf of his client/accused if he requires any relief from this Court, but no such application has been filed. It appears from the conduct of accused that he is in habit of sending different letters from Jail to this Court. It is premature stage to consider plea of acquittal u/s. 249-A Cr.P.C. at this stage. Such plea will be considered after some prosecution evidence is recorded. The accused has been verbally informed of this order." "13.7.1994 Mr. Israr Ali, PP, for the State. Mr. Hakim Ali Siddiqui, Advocate for HBL. Accused produced by Jail Authorities. P.W-1 namely Ghulam Muhammad is present. He has been examined in Case No. 6/94 and 5/94. For want of time the cross examination of P.W-2 is reserved till 1.8.94. Accused remanded to Jail custody to be produced on next date of hearing." "1.8.1994 Mr. Israr Ali, PP, for the State. Mr. Hakim Ali Siddiqui, Advocate for HBL. Accused produced by Jail Authorities. Cross examination of PW-1 Ghulam Muhammad partly recorded. His further cross examination is reserved for the production of the list of Bank officials who was working in the concerned Branch at the relevant time. The case is adjourned to 11.8.94, for further cross examination of PW-1. Accused is remanded to custody to be produced on the next date of hearing." "15.9.94 Mr. Israr All, PP, for the State. Mr. Hakim AH Siddiqui, Advocate for HBL. Mrs. Saleema Nasiruddin, Advocate for accused. Accused Javed Akhtar Junejo, produced by the Jail Authorities. Process Server P.C. Shaukat Ali of FIA Crime, Hyderabad has filed his report about service of notice of Panah Ali Shah and Arif Dal. Notice was served on Panah Ali Shah who has appeared in response to the same. About Arif Dal it has been reported that he was on leave till 13.9.94. On 14.9.94 Process Server again went to the Bank for service of notice but he was informed that Arif Dal has not resumed his office till 14.9.94. Repeat notice to Arif Dal through D.D. Crime Circle, FIA, Hyderabad Sindh. PW-2 & 3 namely Sardar Ahmed and Iqbal Haroon are present Mrs. Saleema Nasiruddin, Advocate is present. In the Interest of justice hearing of this case is adjourned and these witnesses are bound down for next date. Panah Ali Shah, the then Manager of HBL has requested time to engage some counsel to enable him to answer the queries raised by this Court. The case is adjourned to 28.8.94. To come up on 28.9.94." Late Diary : Mrs. Saleema Nasiruddin, Advocate has filed application seeking permission to withdraw her vakalatnama. Accused Javed Junejo has also made identical prayer. Mrs. Saleema Nasiruddin, Advocate is hereby allowed to withdraw her vakalatnama. Such application is brought on record as Ex. 5. To come up on 28.9.94, for further proceedings as order earlier." "28.9.94 Mr. Israr Ali, PP for the State Present. Mr. Mansoor ul Haq Ansari, Advocate, holding brief for Mr. Hakim Ali Siddiqui Advocate for Habib Bank Ltd. Accused Jawaid Akhtar Junejo produced by Jail Authorities. Two prosecution witnesses namely Muhammad Iqbal Manager Indus Gas Branch H.B.L. Hyderabad and Sardar Khan, Officer, Zonal Office, Hyderabad are present. In pursuance of notice issued by this Court vide order dated 28.8.94 Panah Ali Shah, the then Manager and Arif Dal the then Cashier of Habib Bank Ltd. Indus Gas Company Branch are present and have filed applications that the time be granted to them for engaging some advocate. Application allowed and last chance is granted to them to engage any legal counsel/advocate. On 21.9.94 and 22.9.94 two different letters were received in this Court addressed by accused Jawaid Akhtar Junejo. Both these letters were confronted with the accused who admitted to have written them on 15.9.94. Letter received on 21.9.94. In this letter besides serious allegations attributed towards this Court, he has also written as follows :-- The above quoted poilion was again read over to accused in open Court who admitted to have written the same and in acknowledgement of the same again signed on the right edge of the said letter on page-2. Again the above said contents of the letters were read over to accused in open Court who admitted to have written such remarks about the Court and in acknowledgement of the ..ame has put his signature on the right side of the pages No. 3 and 4 in open Court and in presence of both the learned counsel. Both these letters be kept on record in Case No. 30/93 and be placed alongwith the other cases which are fixed on 29.9.1994. It is a well settled law that "justice should not only be done but it seems to have been done." From the above noted remarks of accused it .appears that he is not satisfied from the way his trial is being conducted. Therefore, it will not be fair and just to proceed with this case any further. In view of these circumstances, a reference be made to the Ministiy of Law, Government of Pakistan Islamabad for constituting a separate Special Court for trial of this case. As far as the question of contempt of Court is concerned, I am leaving this matter open. These two letters may be placed before the other Presiding Officer, if constituted by the Federal Government. Both the prosecution witnesses who are present in this Court are discharged for the time being. To come up on 13.10.94. Accused remanded to custody to be produced on the next date." "10.11.94 Mr. Israr Ali, PP, for the State. Mr. Hakim Ali Siddiqui, Advocate for HBL. Accused Javed Akhtar Junejo produced by the Jail Authorities. A notification bearing No. F. 7 (2), 94-AIII dated 27th October, 1994, received from Ministiy of Law, Justice & Parliamentary Affairs (Law and Justice Division), Islamabad regarding transfer of this case to the Special Court consisting of Mr. Syed Hassan Shah Bukhari, Special Judge (Customs, Taxation and Anti-Smuggling) Karachi. Let the record and proceedings be sent to the concerned Court. The Superintendent Central Prison Karachi be directed to produce accused Jawaid Akhtar Junejo on the next date of hearing i.e. 17.11.1994. The accused present in custody is accordingly informed." "6.4.95 A.D. F.I.A. Mr. Israr is present. Accused in present in custody. Counsel for the Bank is present. PW Iqbal is present. Issue preference to Ministry of Law for transfer of the case. Put off to 19.4.1995." "30.8.95 A.D. F.I.A. Mr. Israr Ali is present. Accused is present in custody. P.W. 2 Muhammad Iqbal is recalled and further cross examined. Accused made an application for recalling PW1 Ghulam Muhammad. Notice to prosecutor. Accused is also pressing for bail application. Both applications are to be heard on 4.9.95. Put off to 4.9.95." "14.9.95 A.D. F.I.A. Mr. Israr Ali is present. Accused is present in custody. Bail application and application u/s. 540 Cr.P.C. are heard. Call 1.0. Issue letter to Supdt. Jail and 1.0. about the previous conduct of accused. Adjourned to 21.9.95." From the above material it is clear that the trial could not be concluded on the ground of delaying tactics which were adopted by the applicant/accused himself on each date of hearing when the PW was present, parties were present, either the application was submitted by the applicant/accused himself or duly Authorised person acting on his behalf in the Court with the result that the trial could not be concluded with no fault of the prosecution at all. Prima facie, it appears keeping in view the proviso of statutory delay the applicant/accused has taken advantage of if and tried his best so that the trial could not be concluded. On the other hand he agitated the ground of delay for getting himself released from the Jail. The authorities cited by the learned counsel for the applicant/accused are quite different and distinguishable from the facts of the present case. In the cases cited by the learned counsel the delay whatever which occasioned in the cases was not on the part of the applicants/accused but on the part of the prosecution and applicants/accused were not desperate, dangerous and hardened criminals in the above cases because no such material were produced by the prosecution in those cases. Whereas herein this case right from the submission of the challan against the applicant/accused who started moving applications for adjournments and also false and frivolous applications against the Presiding Judge for getting his case transferred with the result that the trial could not concluded. In none of the cases referred hereinabove the applicants/accused were held responsible for delay whereas in this case as I have already pointed out whatever the delay has occasioned that is on the part of the applicant/accused or the person acting on this behalf. The provisions of proviso 3 of section 497, Cr.P.C. referred hereinabove clearly comes in the way of the applicant/accused and I am of the firm opinion that the applicant/ accused is not entitled to be released on bail on the ground of statutory delay. After hearing the learned counsel for the parties the application was dismissed on 1.4.1996 and these are the reasons for the same. (MAA) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1573 [Circut Court Hyderabad] Present: ali muhammad baloch, J. ZIA SHAIKH-Applicant versus ALI NAWAZ and another-Respondents Criminal Misc. No. 270 of 1993, dismissed on 12.6.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 561-A and S. 200 read with S. 307/504of PPC and Article 11 of Prohibition (Enforcement of Hadd) Order, 1979-Quashment of process for appearance-Prayer for-Contention, no private complaint can be filed for offence falling under Article 11 as provisions of Article 12 of Prohibition Order show that no direct complaint can be filed for an offence falling under Article 11-Proof as required by Article 9 of prohibition order was not available, hence impugned order of trial Court is illegal-Held : There is nothing in Article 12 of Prohibition (Enforcement of Hadd) Order, 1979, which stops a person to file direct complaint, in a case, in which offence under Article 11 of Order, 1979 has been committed—If offence of drinking liable to Tazir was committed, proof required by Article 9, was not required-Counsel for applicant failed to show any illegality or impropriety in the impugned order—Application dismissed. [P. 1575] A, B & C Mr. Allah Bachayo Soomro, Advocate for Applicant. Mr. Ansari Abdul LatifAA.G. Date of hearing: 12.6.1996. order This is a Criminal Misc. Application u/s 561-A Cr.P.C., by which the applicant wants quashment' of the order passed by the 1st. Additional Sessions Judge, Nawabshah, on a direct complaint, filed by respondent No. 1 issuing process for the appearance and -trial of the applicant before him for an offence punishable u/s 307, 504 PPC and Article 11 of the Prohibition (Enforcement of Hadd) Order, 1979. This order was passed on 7.6.1993, on a direct complaint filed by respondent No. 1, after holding preliminary enquiiy. The facts of the case in nut shell are that, the complainant All Nawaz is a citizen living in Town of Sakrand and is running a hotel, while the applicant Zia Shaikh is a Ward Rationing Officer, Food Department at Sakrand. On 19.2.1993, at about 11.00 p.m. the respondent No. 1 was present in his hotel, meals were being served to the customers. P.W. Abdul Hadi Rind, Lai Muhammad Khaskhelli and Muhammad Qasim were present in the hotel. At that moment, applicant Zia Shaikh came to the hotel in a car, in duly intoxicated condition. He took out a bottle from his care, seated himself at a table in the hotel demanded ice, but the respondent No. 1, the owner of the hotel refused to provide him the ice for drinking wine. On such refusal, the applicant Zia Shaikh started abusing the respondent. He also slapped the respondent, but other persons in the hotel intervened. However, the applicant opened his bottle, started drinking wine openly in presence of the customers, the complainant and the witnesses. The complainant and witnesses made an attempt to take him to police and then to a doctor, but he took out a pistol and started firing. The complainant and witnesses concealed themselves in the hotel and ultimately the applicant left the scene. The residents of the town made telegrams and applications of this incident against the applicant that no action was taken by authorities. The respondent who is the owner of the hotel, was slapped, and insulted by the applicant, who had started drinking wine in his hotel and was found in intoxicated condition, therefore, he filed complaint in the court of Sub- Divisional Magistrate, Sakrand, the SDM made over the complaint to the Sessions Judge, Nawabshah, from where it was transferred to the court of 1st. Addl. Sessions Judge, who after recording statement u/s 200 Cr.P.C. ordered for Preliminary Enquiry. After recording statements of witnesses in P.E, he came to the conclusion that prima facie there was proof that the accused had committed an offence u/s 307, 504 PPC R/W Article 11 Prohibition (E & H) Order, 1979. The order of process against the applicant in the sum of Rs. 5000/- for his appearance before the Court was issued. Learned counsel for the applicant has stated that the applicant has appeared in the trial court in response to the issuance of process, furnished surety and thereafter has moved this application before this court for quashment of the order of the trial court, issuing process against him. I have heard the arguments of learned advocate for the applicant, as well as the respondents, and the learned A.A.G. The A.A.G. has supported the case of the applicant. Learned counsel for the applicant has relied upon the provisions of Section 12 of Prohibition (Enforcement of Hadd) Order, 1979, and has stated that the provisions of Section 12 show that no direct complaint could be filed, for an offence u/s 11 of this Ordinance. Secondly the learned counsel for the application has relied on Provisions of section 9 of the Ordinance According to him the proof required by section 9, was not available in this case, and therefore, the order of the trial court was illegal. Lastly the learned counsel for applicant argued that Section 307 PPC has been incorrectly applied by the trial court as on 7.6.1993, Section 307 PPC stood repealed and in its place 324 was promulgated, therefore, Section 307 PPC has been wrongly applied. Besides this, the learned counsel for the applicant has argued that there is no attempt to commit murder in this case, as the direct complaint does not show that the applicant had aimed his pistol at any body. I do not find any justification and force in the arguments of the learned counsel for the applicant on any point. Learned counsel for the applicant has erred in relying on provisions of Section 12 of Prohibition (Enforcement of Hadd) Order, 1979, to find a bar to filing of a direct complaint as the present one. There is nothing in Section 12, which stops a person to come before a court with a direct complaint, in a case, in which offence u/s 11, has been committed in his presence. Similarly, the provisions of Section 9 of the ordinance, required the proof of an offence of drinking liable to hadd. If an offence of drinking liable to tazir was committed, the proof required by section 9, was not required. The proof for an offence u/s 11 of the Ordinance could be different from the provisions recorded in the Section 9. Provisions of Section 11 (a) for the convenience are reproduced below : "11. DRINKING LIABLE TO TAZIR. WHOEVER :-- (a) being a muslim, is guilty of drinking which is not liable to hadd, under Article or for which proof in either of the forms mentioned in Article 9 is not available, and the court is satisfied that the offence stands proved by the evidence on the record; (b) being a non-muslim, citizen of Pakistan, is guilty of drinking, except as a part of a ceremony prescribed by his religion; or (c) being a non-Muslim who is not a citizen of Pakistan, is guilty of drinking at a public place; shall be liable to tazir, and shall be punished with imprisonment of either description for a term which may extend to three years of with whipping not exceeding thirty stripes, or with both". The sub-section (a) of Section 11 of the ordinance, shows that it is the satisfaction of the court in respect of the evidence on the record, that action can be taken. Prima facie it appears that the trial court was satisfied with the evidence, which was led before him in the preliminary enquiry, that this case was brought on file and the process was issued. The learned counsel for the applicant has failed to show any illegality or impropriety in the impugned order and therefore, I do not find any force in this application for the quashment of the impugned order. The application is therefore, dismissed. The trial Court is directed to proceed with this case immediately is nearly three years have passed, during which period this Criminal Misc. Application was pending. The trial court should conclude the trial within a period of six months from the communication of this order. (MAA) Application dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1576 Present raja muhammad khurshid, J. NOOR SAFIA-Petitionere versus S.P. SIALKOT etc.--Respondents Crl. Misc No. 849/H/96 disposed of on 1.8.1996. Criminal Procedure Code (Act V of 1898)-- —S. 49 I—Writ of Habeas Corpus-Illegal custody of minors-It is true that minors are closely related to respondents, but they were allegedly taken away forcibly from custody of their mother i.e. petitioner-The moment they were removed from lawful custody of their guardian, it would become a case of illegal detention-Detenues are minors of tender age, their father is in foreign land-Hence, their mother has a legal right to their custody-Their welfare also requires that she should be put into their temporary custody forthwith-Petition allowed. [P. 1578] A & B Mr. Nasim Sabir, Advocate, for Petitioner. Mr. CM. LatifRawan, Advocate, for Respondent No. 3, 4 and 6. Date of hearing: 1.8.1996. order The petitioner is the mother of detenus namely Taimur Khalid aged about 7 years, Rewan Khalid aged 5 years and Nirmal Khalid aged 4 years. It was alleged in this habeas corpus petition that the aforesaid detenus/children were in the illegal detention of respondents Nos. 3 to 6 as they were forcibly taken away from her house on 15.7.1996. It was also alleged that her husband namely Khalid Mahmood was living abroad i.e. at Masqat in connection with his employment and that she was residing in Pakistan with her parents and minor children for the last 2 years. 2. Respondent No. 3 is stated to be the paternal granad father of detenus whereas respondent Nos. 4 to 6 are the paternal uncles. 3. This petition was instituted on the ground that respondents Nos 3 to 6 have no right to hold the minor children in their illegal custody. A request for appointment of bailiff was made to effect the recovery of detenus from the aforesaid respondents. The bailiff was accordingly appointed who has submitted his report dated 24.7.1996. Th recovery of Tamur Khalid and Rewan Khalid was effected through the bailiff of this court with the assistance of the police from the custody of respondents Nos. 3 to 6 whereas other detenue namely Nirmal Khalid could not be recovered as she was stated to be with respondent No. 4. However, it was undertaken before the bailiff that the aforesaid detenu child shall be produced in court, which was accordingly done. 4. Respondents Nos. 3, 4 and 6 filed reply to this petition in which they took up the preliminary objection that the petitioner had developed illicit relation with Shahzad Ahmad respondent No. 5 a younger brother of respondents Nos. 4 & 6 and that of husband of the petitioner. The fact about the illicit relation came to the knowledge of the respondents in October, 1995, whereupon the father of the petitioner namely Muhammad Ishaque was informed, who whereupon paid a visit to the respondents in the company of Ghulam Hussain and other respectables of the area, and the children i.e. the detenus were therefore, left with the respondent. It was, therefore, urged that the petitioner had dis-entitled herself to the custody of the minors/detenus after developing illicit relation with the aforenamed Shahzad Ahmad, who has also allegedly left for Malaysia after the incident. 5. I have heard the learned counsel for the parties at length. The father of the petitioner namely Muhammad Ishaque was also summoned and is present in court. He has verified the fact that petitioner is living with him along with children namely Taimur Khalid, Rewan Khalid since after their recovery from the espondents. It is thus obvious that the petitioner is presently residing in the house of her parents. The learned counsel for the petitioner has submitted that the decision in this petition is to be given for the limited purpose z.e. whether or not the detenus should be released from the illegal custody of respondents and handed over to their mother i.e. the natural guardian. In this respect reliance is placed on 1984 P.Cr.L.J. 2582 (Lahore), 1984 P.Cr.L.J. 1047 (Lahore), 1990 P.Cr.L.J. 847 (Karachi) and 1990 P.Cr.L.J. 686 (Karachi) to support the point that custody to the rightful and natural guardian can be given after recoveiy of the minor etenus from the illegal detention in pursuance of section 491 Cr.P.C. 7. The learned counsel for the respondents has submitted that respondents would not dispute the custody of the minors detenus if the father of the petitioner takes oath on the Holy Quran that children aforesaid were not voluntarily left with the respondents. In case an oath is given upon Holy Quran by the father of the petitioner to that effect, then the custody of the children may be allowed to the petitioner. This offer was given to the petitioner to which she did not agree on the ground that she would not ask her father to give oath on Holy Qur'an rightly or wrongly. After refusal of the above offer, the learned counsel for the respondents contended that the petitioner was not entitled to the custody of the minors/children aforementioned particularly when they were left with the respondents voluntarily by her. It was further submitted that it was not a case of illegal detention because the respondent No. 3 was the paternal grand father whereas respondents Nos. 4 and 6 were paternal uncles of the detenus. It may be irregular custody, but did not amount to illegal detention as spelt out by section 491 Cr.P.C. Reliance is placed on NLR 1984 U.C. 569 (1) Karachi, 1989 P.Cr.L.J. 823 Karachi and 1989, P.Cr.L.J. 1327 Karachi, it was, therefore, urged that the petitioner was not entitled to even temporary custody of the children particularly when there is an allegation against her that she had developed illicit intimacy with one of the younger brother of her husband namely Shahzad Ahmad i.e. respondent No. 5, who has since left for Malaysia. 8. I have considered the foregoing facts and have also gone through the authorities cited at the Bar. The authorities cited by the learned counsel for the petitioner have clearly pronounced law relating to the custody of minor detenus in view of provisions contained in section 491 Cr.P.C. On the other side the authorities relied upon by the learned counsel for the respondents deal with the irregular custody in one of which the parties had already gone to the proper form under the Guardian and Wards Act, but had held that section 491 Cr.P.C. a could 1 apply to decide the question of temporaiy. 9. In the aforesaid situation, it will have to be seen whether in the instant case custody by respondents Nos. 3, 4, and 6 amounts to an illegal detention of the minor children or it is only a case of irregular custody. It is true that the respondents aforesaid are closely related to the minors, but they were allegedly taken away forcibly from the custody of their mother i.e. the petitioner. The moment, they were removed from the lawful custody of their guardian, it would become a case of ille al detention. As such it would not be a case of improper custody alone. The detenus in this case are minors of tender age, their father is a foreign land. Hence their mother has a legal ight to their custody during Hazanat period. 10. A question of fact regarding the character of the mother cannot be readily gone into while disposing of this petition. Admittedly the petitioner being mother of the minor detenus, even their welfare would require that she should be put into their temporary custody forthwith till the matter about regular custody is decided by a Court of competent jurisdiction under the Guardian and Wards Act. This petition is, therefore, allowed and respondents Nos. 3, 4 and 6 are directed to deliver the custody of Nirmal Khalid immediately to the petitioner in the court. The custody of Nirmal Khalid is accordingly given by the respondent to the petitioner in the court. The remaining two detenus namely Taimur Khalid and Rewan Khalid are already in the custody of petitioner as the were given to her by the bailiff at time of their recovery. She shall continue to hold custody of all the minors/detenus subject to any order passed by the Court of competent jurisdiction under the Guardian and Wards Act, if the matter is taken to the court by any of the parties. 11. Disposed of with the above order. (MYFK) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1579 [Multan Bench] Present: rana muhammad arshad, J. MUNIR AHMAD--Petitioner versus STATE-Respondent Criminal Revision No. 139/1995, dismissed on 7.5.1996. (i) Criminal Procedure Code 1898 (Act V of 1898)-- —Ss. 439 and 540 read with. S. 302/34 PPC-Contention, that alleged recovery of gun, belongs to deceased, but has been planted upon accused by erazing its number-Request of accused, for sending gun to Forensic Science Laboratory in order to trace its number was turned down by trial Court—Challenge to set aside impugned order of trial court—Held: Forensic Science Laboratory report indicative of fact, that, gun was in broken condition with its number erazed--The defence, is at liberty, through cross-examination or otherwise to bring sufficient material on file to prove its contention and fabrication of recovery-No material brought before Court necessitating for again sending gun to Forensic Science Laboratory-Revision petition having no merits dismissed. [Pp. 1580 & 1581] A, C 1992 P.Cr.LJ 729 distinguished. (ii) FairTrial-- —-Function of Court-Primary function of the court, apart from technicalities, is to arrive at just conclusion strictly in accordance with law-It is obligatory for trial court to see that accused is being given full opportunity of fair trial. [P. 1581] B Maulvi M. Sultan Mam, Advocate, for Petitioner. Mr. Bashir Ahmad, Advocates, (by Mr. Jameel Ahmad Chauhan) for Respondent. Dates of hearing: 6.5.1996 and 7.5.1996. order The petitioner through this petition filed under section 439 Cr.P.C. calls in question the order dated 6.7.1995 passed by the learned Addl. Sessions Judge, Vehari whereby the Application filed under section 540 Cr.P.C. was dismissed. 2. The necessaiy facts giving rise to the instant petition are that a case FIR No. 275/92 dated 1.10.1992 under section 302/34 PPC was registered with Police Station, Luddan District Vehari at the instance of Muhammad Yousaf for committing the murder of Muhammad Younus, against the petitioner herein, Machhia Niaz, Munir and Mazhar having been armed with 12 bore gun. The investigation was thoroughly conducted and all the aforesaid persons were found involved in the instant crime and they were challaned to face the trial. The trial had commenced and the evidence was being recorded when the application dated 18.6.1995 under section 540 Cr.P.C. was moved by the petitioner stating therein that Rustam Ali, SHO had stated on 18.5.1995 during the trial to the effect that 12 bore gun bearing No. 1919 as licenced in the name of Muhammad Younis, deceased, and the same was not deposited in the police station after the death of the licensee. The said gun was shown to be recovered from the possession of the petitioner. The aforesaid number of the gun was erazed and planted the same to involve the petitioner in a false case. The prayer was made seeking the order to send the recovered gun to the Forensic Science Laboratory to trace the number of the gun so that the petitioner may prove his innocence in the trial because the case of the petitioner from the inception of it was that the police had taken into possession the gun from the car of the deceased and was planted upon the petitioner. 3. I have heard the learned counsel for the petitioner as well as the learned counsel for the State assisted by the learned counsel for the omplainant. 4. The averments made in the application dated 18.6.1995 is that the alleged 12 bore gun, recovery of which has been shown to beonade from the petitioner, number of which was erazed, belong to Muhammad Younis deceased and it was in broken condition and the petitioner has been involved in the case on account of false recovery. The minute examination of the record put before me makes it abundantly clear that the alleged gun was in broken condition and number of it was also erazed and could not be read. The application was made under section 540 Cr.P.C. which is reproduced below for ready reference:- "Any Court may, at any stage of any injury, trial or other proceeding 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 and such person if his evidence appears to it essential to the just decision of the case." 5. A bare reading of the afore-referred section makes it sufficiently clear that the trial Court is quite competent, at any stage of the trial, to summon any person as a witness if his testimony becomes essential to meet the ends of justice. The report of the Forensic Science Laboratory is also indicative of the fact that the gun was in broken condition and the number was also erazed. The defence is at liberty, through the cross-examination or otherwise to bring sufficient material on the file to show that the aforesaid gun was actually belonging to the deceased and the recovery of which was fabricated, to make the point for the consideration of Court to summon the officials of the Forensic Science Laboratory and the Court may only summon the witnesses, the evidence of whom, becomes very essential to meet the ^ ends of justice because primary function of the Court, apart from the technicalities is to arrive at just conclusion strictly in accordance with law. It is obligatory for the trial Court to see that the accused is being given full opportunity of a fair trial. The Forensic Science Laboratory has already given its report. The learned counsel for the petitioner has relied upon Muhammad Rauf Anwar v. State (1992 P.O.L.J. 729) in support of his contentions which is absolutely distinguishable to the facts and the circumstances of the case. I, without going into the intricacies of law and the merits of the case so that it may not prejudice the case of either party, hold that the report of the Forensic Science Laboratory is already on the file and no such material has been brought before me to hold that the aforesaid gun again be sent to _^ the Forensic Science Laboratory to trace out its number as the number of the allegedly recovered gun has already been reported to have erazen. I do not seen any merit in this revision petition so the same is dismissed accordingly. (MAA) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1581 Present: deedar hussain shah, J. OMARY JUMA SALIM-Appellant versus STATE-Respondent Sp. Criminal Jail Appeal No. 14/95 decided on 7.3.1996. Customs Act, 1969-- —-S. 156(l)(8)--Heroin 950 grams-Recovery of--Conviction for R.I. for two years-Challenge to-Learned trial Judge keeping in view plea of guilty of accused and showing leniency in convicting appellant for the term of 2 years R.I.--Punishment for this offence is 14 years and learned Special Judge has already shown leniency in awarding sentence—At the time of admission of appeal accused was not served with notice calling upon him as to why his sentence may not be enhanced-But at the hearing of appeal, prior notice was not issued to accused, therefore, reluctantly court is not going to enhance sentence unilateraly-Appeal dismissed. [Pp. 1583 & 1584] A, B Appellant through Superintendent Central Prison Karachi. Mr. Farooq H. Naek, D.A.G. for State. Date of hearing: 7.3.1996. judgment The appellant was convicted by the Special Judge (Customs & Taxation) Karachi, in Case No. 42/95 under Section 156(1)(8) of the Customs Act, 1969 and was sentenced to suffer R.I. for two years and to pay a fine of Rs. 15,000/- or in default in payment of fine the accused shall undergo further R.I. for six months. The facts of the prosecution are that on 10.2.1995 at about 1830 hours Customs Officer Ch. Fayyaz Ahmad intercepted the accused in the International Departure Hall, J.T.C. Karachi Airport . The accused was round to leave for Entebbe by flight No. GF-4017. The Customs Officer suspected the accused to be carrying heroin powder in his body, therefore the took the accused to a clinic for his body X-Ray. The X-Ray report confirmed the presence of foreign bodies in the shape of capsules in the stomach and abdominal region. The Customs Officer then brought back the accused to Customs Drug Cell Office where in presence of Doctor and mashirs the accused exerted 72 capsules containing 950 grams of Heroin Powder. The Custom Officer seized the capsules containing Heroin Powder and arrested the accused under a mashirnama. The accused/appellant was served upon with the notice under section 171 of the Customs Act and thereafter the FIR was lodged and after completion of usual investigation the accused/appellant was challaned in the Court. At the trial the accused moved an Application Exh. 2 wherein he confessed the guilt and requested that his case may be decided. Accordingly the trial Court framed the charge under section 156(1)(8) of the Customs Act, 1969. The accused pleaded guilty and also prayed for mercy of the Court. The learned trial Judge keeping in view the plea of guilty of accused and showing leniency in convicting the accused/appellant for term mentioned hereinabove. The accused/appellant for term mentioned he"einabove. The accused/appellant has preferred this appeal through Jail Authorities and he was called from the Jail and has been heard. He has contended that he is a foreigner and lenient view so for as conviction is concerned may be taken into consideration. I have heard the accused/appellant. I have also heard D.A.G. who has opposed this appeal on the ground that the trial Court in the first instance has already shown leniency in awarding sentence to him whereas the offence is punishable for R.I. of 14 years. I have perused the record and gone through the R & P of the case and applied my mind to the sentence awarded by the learned trial Court, which has already shown leniency in awarding sentence to him. This Court vide its order dated 17.8.11995 for calling upon the I.O. to explain the position as to "what efforts were made by the I.O. to treat this accused as carrier or heroin supplier and what were the circumstances on account of which he took least pain to find out the actual supplier". The I.O. Mr. Shamim Ahmad Khan, is present in person. He has submitted his explanation wherein he has stated that "he could not proceed to Lahore & Islamabad due to financial constraints as investigation like this entails prolonged stay in the city of Lahore and Islamabad and possibly Peshawar. Had the Heroin been supplied to the accused some wherein the vicinity of arachi and even suburbs the undersigned could have made efforts to find out the supplier/financier". I have taken into consideration the facts explained therein. The explanation submitted is accepted and in future he is directed to be very vigilant in the case, in arresting the supplier also. The trafficking in the narcotics is a crime against humanity and actually now-a-days it has become problem for the society at large. By not awarding severe punishment to the culprit, on finding guilty by the Court, actually, the trafficking in narcotics is increased rather than decreased. That contention of the appellant to show some leniency in reducing' sentence which has already been granted to him. I would like to refer the case of The State through Dy. Attorney General v. Muhammad Siddiq (1996 SCMR 246). In this matter the State has moved to the Hon'ble Supreme Court. The facts of the case are that Muhammad Siddique respondent was apprehended alongwith Zardad Khan his co-accused on 5.5.1992 at 08.00 hours within the limits of village Jalala on Mardan-Malakand Road while "smuggling 8500 k.gs. of contraband charas of foreign origin by Truck No. PRC 8726 and was, therefore, charged on 5.10.1992 for an offence punishable under sections 156(89) and 178 of the Customs Act (IV of 1969). On the same day, Muhammad Siddique pleaded guilty to the charge before the learned Special Judge, Customs (Central), Peshawar. He was, therefore, convicted under sections 156(89) and 178 of the Customs Act and was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 1,00,000 or in default to undergo further rigorous imprisonment for three years. Zardad Khan coaccused of the respondent did not plead guilty to the charge and was placed on Trial. After recording evidence of the prosecution and examining the accused the learned Special Judge convicted and sentenced him in the same terms. The two convicts challenged their convictions and sentences in the High Court separately which were heard and disposed of by a consolidated judgment recorded on 22.5.1993 by the then learned Chief Justice whereby the conviction of the respondent was maintained but the sentences of rigorous imprisonment for three years was reduced to one and a half year and likewise the fine was also reduced to Rs. 50,000 whereas appeal of Zardad Khan co-accused of the respondent was accepted and his conviction and sentence were set aside. In this background the State submitted leave to appeal in the Supreme Court bearing No. 43-P of 1993 and with the following observation the leave was granted:- "Mr. Saadat Hussain, learned Deputy Attorney- General appearing on behalf of the State contends that merely because respondent No. 1 had pleased guilty does not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed was of smuggling of huge quantity of 8500 k.gs. of contraband narcotics, he further urged that the learned Special Judge had already delta with respondent No. 1 veiy leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught." In this case also the appellant was apprehended by the prosecution and exerted 72 capsules containing 950 grams of Heroin Powder as already pointed out hereinabove. The punishment for this offence is 14 years and the learned Special Judge has already shown leniency in awarding sentences. At the time of admission of the appeal the accused was not served with the notice calling upon him as to why his sentence may not be enhanced? But at the hearing of the appeal, prior notice was not issued to the accused, therefore, reluctantly I am not going to enhance the sentence unilaterally but in view of the observation of the Supreme Court in the case referred hereinabove there is no substance in this appeal which accordingly is dismissed. (K.K.F.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1584 Present: syed deedar hussain shah, J. USMAN AKBAR-Applicant versus STATE-Respondent Spl. Criminal Bail Application No. 23/96, rejected on 24.4.96. Bail- —-S. 497 Cr.P.C.-Bail-Grant of-Prayer for--Heroin 1.9 Kg--Recovery of--It is an admitted fact that sufficient quantity of heroin powder has been recovered from possession of accused-Documents including diaiy and record prima facie establish that accused is a member of a gang of persons who are involved in drug-trafficking-Examination-in-Chief of witness is recorded on behalf of prosecution in which he has fully implicated accused-Moroever, delay whatsoever occasioned is due to person who was acting on behalf of accused in getting adjournments-Held: Case for bail on account of delay is not made out-Petition dismissed. [P. 1589] A Mr. Syed Ghazanfar All Shah, Advocate, for Applicant. Mr. Muhammad Roshan Essari, D.A.G. Date of hearing: 24.4.1996. order Sanab Gul, Preventive Officer, Custom House, Karachi lodged the FIR on 28.10.1994 which is as follows:- ....... "while performing my duty at the International Departure Hall, Jinnah Terminal Complex, Quaid-e-Azam International Airport, Karachi, I intercepted a pax namely Usman Akbar of dual nationality, holding British Passport No. 700292180, who was leaving for Copenhagen via Abu Dhabi by PIA Flight No. PK-285. The passenger named bove was asked to declare whether he was carrying any contraband goods i.e. narcotics etc., in his baggage or on his person to which he replied in negative. Being dis-satisfied with his declaration his baggage consisting of one blue colour "EMINENT" suit case and a briefcase were subjected to thorough examination in presence of two independent witnesses M/s. Mithal Shah and Sajid Awan which resulted in the recovery of 08 Nos. polythene bags containing Brown Heroin in powder and solidified form, which were cleverly concealed in the false top and bottom of the suit case. However, nothing objectionable was recovered from his brief case. The heroin powder, so recovered, on weighment was found to be 1.9 kgs. (gross), which was seized alongwith containers and travelling documents of the passenger under a mushirnama. Six, representative samples of the seized heroin (three each of powder & solidified heroin) where also drawn duly sealed and signed by the above witnesses. It is worth mentioning that a pocked diaiy containing various domestic/international addresses with telephone numbers alongwith Aero Asia domestic ticket No. 532-691784 in the name of one Mr. Faisal Khan was also recovered frying the personal search of the accused person named above. During preliminary investigations it was transpired that Mr. Faisal Khan from Attock District has masterminded the plan of heroin smuggling and according to accused person the above recovered diary and D/ticket also belong to him. Accused passenger namely Usman Akbar was arrested and served with a notice under Section 171 of the Customs Act, 1969." After usual investigation Mumtaz. H Khan, Investigating Officer, Custom submitted charge sheet in the Court of Special Judge Customs & Taxation) Karachi on 10.11.1994. Thereafter on 7.2.1995 charge was framed by the learned trial Court. The bail application moved on behalf of the accused/applicant was rejected by the learned trial Court vide its order dated 21.3.1996, hence he has approached this Court through this application for bail. I have heard Mr. Syed Ghazanfar Ali Shah, the learned counsel for the applicant. The learned counsel has contended that statutory delay so happened in this case is not because of any fault at the end of accused and all the delaying tactics for concluding the trial solely rests on the shoulder of the prosecution. He has also contended that the applicant is a student of M.B.B.S. and his involcement in the present incident is totally out of question and he has been made victim of this case. The learned counsel has cited case law which would be discussed latter on. have also heard Mr. M. Roshan Essani, the learned D.A.G. The learned D.A.G. has contended that delay whatsoever had occasioned is due to the conduct of the applicant himself, as on three dates of hearing cross examination of the complainant could not be concluded. That prima facie prosecution has collected sufficient evidence against the applicant to connect him to be a person involved in drug trafficking alongwith Faisal Ah' Khan who is a International Drug Trafficker and he had a thorough knowledge of drug trafficking, as a number of local and International addresses were found in the diary. Amongst other addresses, an address of G. Shanon on was also found, where the accused person had to deliver heroin stuffed suitcase. That an Aero Asian ticket was also recovered which revealed that Faisal Ali Khan had reached here from Islamabad on 28.10.1994 by Aero Asia Flight No. 101. Both the accused persons were checked in Room No. 203 of Hotel Zeeshan at Tariq Road Karachi. According to the hotel record they were checked in, the said hotel at about 4.30 P.M. on 28.10.1994 and shared the same room. It was further discovered from the record of the hotel that the accused person checked out at about 5.30 P.M. and Faisal Ali Khan checked out at about 7.30 p.m. Efforts are being made to arrest absconding person namely Faisal Ali Khan. Danish D.L.O. was also informed about the case and the name of the recipient i.e. G. Shanon who was to receive drugs in Copenhagen. Due to co-ordination and sharing of information, G. Shanon was arrested in Copenhagen and heroin powder was recovered and seized from him. I would like to discuss all the authorities which are cited by the learned counsel for the applicant/accused and by the learned D.A.G. for the State. The learned counsel for the applicant cited the following authorities which are as under. (1) Ahrar Muhammad and others us. The State (PLD 1974 S.C. 224). The observations of the Hon'ble Supreme Court are as under:- "We have also carefully examined the order-sheets filed by the learned counsel for the State but are unable to agree with him that the conduct of the defence has been equally reprehensible in this case. By far the majority of the adjournments are not due to any fault of the defence. The responsibility for them lies either on the prosecution or the Court, which, we regret to say, has displayed a degree of laxity that can only he described as deplorable. We have not been able to resist the impressions that it appeared ever willing to accept a request for adjournment." This authority in my humble view is not helpful to the case of the accused/applicant. So far as this case is concerned the cross examination was reserved at the request of the learned defence counsel and on 9.4.1995 and on 19.4.1995 the complainant could not be cross-examined due to the adjournment applications moved by the learned defence counsel. The case has proceeded and in examination-in-chief prima facie the complainant has fully implicated the accused/applicant and during investigation police has recovered British Passport No. 700292180 of the applicant and Air France Ticket No. 2-f "7-94-77892163-6 and pocket diary with D/Tkt 532-691784 (A/Asia) valued Pak. Rs. 57.000/-. (2) Muhammad Iqbal Zafar vs. The State (1977 SCMR 474). The observation of the Hon'ble Supreme Court are as unden- ..... "According to the learned counsel for the State the investigation in the case had been completed and challan put in Court but he admitted that so far no sanction for prosecution of the Government servants had been obtained. He also admitted that there were about seventy prosecution witnesses in the case which involved a huge record. Under these circumstances the trial of the case in the Court of the Special Judge would take years to complete and we therefore consider it a fit case to allow bail to the accused who has already been in lock-up for sufficient time." In my humble view this authority is not applicable to the facts of the present case. Here in the case in hand the applicant is not a Government servant and sanction for prosecution is not required. Moreover charge sheet has been submitted by the prosecution and case has proceeded in the trial Court where evidence of complainant ha's been recorded in which he has fully implicated the accused cross examination could not be carried on due to adjournment applications of the learned defence counsel. (3) WazirKhan vs. The State (1983 SCMR 427). The observations of the Supreme Court are as under:- "We issued notice to the State and have heard both the learned counsel for the petitioner as well as the learned counsel appearing on behalf of the State. The latter informed that Muhammad Khan, co-accused who is a Naik in the Pakistan Army has, indeed not been apprehended and the reason for the inability of the police to arrest him is that the Military austerities have refused to surrender his custody. From this it is obvious that the delay which has occurred in the commencement of the trial is neither attributable to the petitioner nor to any other person "acting on his behalf and it is not proper that the petitioner should suffer merely because the police is unable to apprehend Muhammad Khan, co-accused. The petitioner is, therefore, converted into appeal and allowed." This authority is quite different and distinguishable from the facts of the present case. In the cited case the custody of the person was to be taken from the Military Authorities whereas in the present case the accused has been charge sheeted and the case has proceeded as already observed hereinabove in the earlier part of this order, therefore, in my humble view this authority is not applicable to the facts of the present case. (4) Tario Butt vs. The State (1990 SCMR 1090). The Hon'ble Supreme Court held as under:- "There is no satisfactory explanation why the trial has not so far been concluded. Although it is said that some of the adjournments made by the trial Court were at the request of the co-accused of the petitioner, it is not however the case of the learned Deputy Attorney-General that any of these adjournments was sought by or occasioned by the conduct of the petitioner." This authority is also not favourable to the case of the applicant because here in this case three adjournments were obtained by the learned defence counsel and the witness could not be cross examined. (5) Muhammad Alt Khan vs. The State (PLD 1991 Peshawar 66). A learned Single Judge of Peshawar High Court has held as unden- "The petitioner was arrested on 28.12.1987 and his trial has not yet commenced. This delay is not shown to have been occasioned by any act or omission of the accused or any other person acting on his behalf within the contemplation of subsection (1) of section 497, Cr.P.C. Similarly the plea of the petitioner for bail does not also fall within the mischief of fourth proviso to subsection (1) of section 497 ibid." This authority is also not applicable to the facts of the present case as mentioned hereinabove. The case was adjourned at the request of the learned defence counsel and whatever delay occasioned is due to the application of the person acting on behalf of the accused. Mr. Muhammad Roshan Eassani, the learned D.A.. has cited the following case law. In the case of Akhtar Abbas vs. The State (PLD 1982 S.C. 424). The observations of the Hon'ble Supreme Court are as under:- "We regret we are not impressed by these submissions, as we find that the requirements of the law is not fulfilled in this case, as at least on eight occasions adjournments were sought by the defence for one reason or the other. In such a case it does not appear to be the intention of the law to calculate the amount of delay caused by the defence. All that is necessaiy is to see whether the finalisation of the trial has, in any manner, been delayed by an act or omission on the part of the accused. In the present case, the delay is partly attributable to the accused. The submission that the date in question was not fixed for the hearing of the case is not correct. On the contrary, it is clear from the order sheet of the trial Court on these dates most of the witnesses were summoned and were present, but their examination had to be postponed owing to the request made by the defence counsel. This authority is helpful to the case of the prosecution in as much as three adjournments were obtained by the defence counsel as such the cross examination of the complainant could not be concluded. It would be pertinent to reproduce Section 497(3):- S. 497(3): Provided further that the Court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf or in exercise of any right or privilege under any law for the time being in force, direct that any person shall be released on bail:- (a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or , (b) who,' being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded. Provided further that the provisions of the third proviso to this sub-section shall not apply to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or involved in terrorism. I have gone through the material placed with the case. According to the charge sheet it is an admitted fact that sufficient quantity of heroin powder has been recovered from the possession of the accused/applicant who is holding British Passport bearing No. 7000292180. The documents including diaiy and domestic ticket and the record of Zeeshan Hotel Karachi pritna facie establish that accused is a member of a gang of the persons who are involved locally and internationally in the drug trafficking out of whom Faisal Ali Khan has been shown as absconder and according to D.A.G. efforts are under way for his apprehension and one G. Shanon of Copenhagen was arrested by the authorities in Denmark and heroin was recovered and seized from him. The examination-in-cheif of the witness is recorded on behalf of the prosecution in which he has fully implicated the accused/applicant. Case has proceeded and admittedly the cross examination could not be carried on due to the adjournment applications moved by the learned defence counsel. The case law cited by the learned counsel for the applicant is not helpful to the case of the applicant/accused. Whereas the case law cited by the learned D.A.G. is helpful to the case of the prosecution. Moreover delay whatsoever occasioned is due to the person who was acting on behalf of the accused/applicant in getting adjournments. Consequently case for bail on account of delay is not made out and this application is dismissed. However the trial court is required to complete the trial within a period of four months from receiving the order by proceeding expeditiously/day to day in the matter. (A.P.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1590 Present: shah nawaz awan, J. WAHEED-UL-ISLAM and another-Applicant versus STATE-Respondent. Criminal Bail Application No. 479/1996 rejected on 11.4.1996. Bail —S. 497 Cr.P.C.-Bail-Grant of-Prayer for~0ffence U/S. 3(2) of Foreign Act 195/read with section 14 of Foreigners Act, 1946-Bangla Deshi nationals-Illegal emigrant-Contention that accused are not Bangla Deshi but they are Pakistan by birth and have been falsely implicated— No documentary proof has been filed to show that accused are Pakistani-­ According to S. 9 of Foreign Act, 1946 burden to prove that accused are Pakistani national lies upon accused-They claim that they are Pakistani National by birth but no birth certificate has been produced-According to amendment in Foreign Act 1956 punishment prescribed is for 10 years-­ Petition dismissed [P. 159r& 1592] A & B Mr. Mahmood A. Qureshi, Advocate, for Applicant. Mr. Suleman Habibullah, Advocate, for State. Date of hearing: 11.4.1996. order This order will disposed of bail application filed on behalf of the accused namely Waheedul Islam son of Muhammad Haneef and Mashooq Rana son of Nawaz Bachal, who had been booked under section 3(2)(a) of F.R.O. 1951 vide F.I.R. bearing No. 370/1995 registered at Police Station Kharadar, Karachi. On 6.10.1995 the A.S.I. Police Station Kharadar while on petrolling duty and search for illegal traficking of Bangla Deshi National and when he reached in Azam Basti, he found certain persons in suspicions condition and after enquiry he demanded proof from them of their being Pakistani, which they could not produce nor they gave any satisfactory reply therefore, the A.S.I, took them for further investigation and produced them before the high official, who after interrogation found that they were Bangla Deshi National and directed the A.S.I, to take legal action against them as such on the basis of the statement recorded under Section 154 Cr.P.C. the F.I.R. was registered against these persons. The accused above named filed a bail application before learned Additional District Magistrate (South) which was rejected by him vide his order dated 9.1.1996. Thereafter the accused preferred bail application before the learned District & Sessions Judge Karachi South which was transferred to the Court of Second Additional Sessions Judge Karachi South and which too was rejected by learned Second Additional Sessions Judge (Mrs. Khalida Yasmin) vide order dated 19.3.1996. The learned counsel appearing on behalf of the accused contended that the accused are not Bangla Deshi but they are Pakistani by birth but they have been falsely implicated in this case due to enmity with Kharadar Police as such false implication of the accused due to enmity cannot be ruled out and further that the offence under which the accused are charged with does not come under the prohibitory clause of Section 497 Cr.P.C. as such they are entitled for concession of bail. The learned counsel has placed reliance on the following cases: 1. 1993 P.Cr.L.J. 446 (Karachi) 2. P.L.D. 1988 Karachi 64. 3. Unreported order passed in Cr.B.A. No. 1352/1995 (floor Khan and others us. The State). On the other hand, learned counsel appearing on behalf of the State has contended that no proof of being Pakistani was given by the accused on repeated demands and further that these accused know only Bangali and did not speak any other language during the course of interrogation and further that they admitted that they had entered into Pakistan in the year 1987 without any Passport and valid documents. He has also contended that the offence under Section 3(2) of Foreign Act 1951 read with Section 14 of the Foreigners Act of 1946 is punishable for 10 years. I have heard both the learned counsel at great length and have perused the record of this case. Record shows that no documentary proof has been filed to show that the accused are Pakistani. Even during the course of arguments a question was put to learned counsel for the accused whether he has got any birth certificate of the accused to which he replied in negative. There is prohibition of assisting illegal entiy as such no one shall make or carry out arrangement for securing or facilitating the entry into Pakistan or any one whom he knows or has reasonable cause for believing to be an illegal emigrant. Further more the situation in this countiy and especially in Karachi is not. normal, thousands and lacs of foreigners have crossed over to Pakistan from neighbouring countries and have floated the Karachi. They have created a lot of law and order problem and if there would no check on the illegal emigrants by Courts there would be no end to it. However, as already stated in the impugned order by the learned Second Additional Sessions Judge Karachi South that according to Section 9 of the Foreign Act 1946 the burden to prove that the accused are Pakistani National lies upon the accused who claim themselves to be Pakistani nationals. The record shows that no documentary evidence has been produced. Even if they claim that they are Pakistani national by birth but no birth certificate has been produced. According to the amendment in the Foreign Act 1946 the punishment prescribed is for 10 years and even after sentence the accused can be departed to their country as rightly observed by the learned Second Addl. Sessions Judge Karachi South. I am therefore not inclined to grant bail to the accused on the above grounds but however if they are convicted, if not proved to be Pakistani, they can be deported to their countiy. I would therefore like to direct the learned Magistrate to proceed with the case expoditiously and decide it within the time of two months under intimation to this Court. (KKF) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1592 [Multan Bench] Present: syed zahid hussain bokhari, J. Mst. NAZIRAN BIBI-Petitioner versus MEHR GHULAM FARID ADDL. SESSION JUDGE-and two others-­ Respondents. Criminal Misc. No. 53/Q/1996, dismissed in limine on 10.4.1996. Criminal Procedure Code, 1898 (Act V of 1898)— —-S. 561-A-Quashment of orders-Prayer for-Offence under Articles 10/11 of Zina (Enforcement of Hadood) Ordinance, VII of 1979-Contention, petitioner and co-accused were found innocent during investigation and consequently were discharged by Magistrate-Their names not put in col. 2 or 3 of challan submitted in court-Additional Sessions Judge was not competent to summon petitioner without recording evidence-Held : Petitioner is named in F.I.R., accusations against petitioner exist therein-- Statements recorded under section 161 Cr.P.C. prima facie showing reasonable ground to proceed with trial-It would be immaterial if name of accused petitioner is mentioned in Column 2 or 3 of Challan or not- Petition having no merits dismissed in limine. [Pp. 1593 & 1595] A, B & C 1988 SCMR 1428 ref. PLJ 1996 Cr.C. 198 foL Mr. Sikandar Javed, Advocate, for Petitioner. Date of hearing: 10.4.1996. order Petitioner Mst. Naziran filed this petition under section 561-A Cr.P.C. for the quashment of order of learned Addl. Sessions Judge, Multan dated 15.2.1996 whereby the learned Addl. Sessions Judge summoned Mst. Naziran and Mumtaz to face trial of case FIR No. 93 dated 16.4.1993 under Article 10/11, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 of P.S. Qadarpur Rana, Distt. Multan. 2. Learned counsel for the petitioner argued that petitioner and Mumtaz her co-accused were found innocent during the investigation and consequently were discharged by the learned Magistrate and therefore, their names were neither put in column No. 2 nor in column 3 of the report prepared under section 173 Cr.P.C. Further submitted that petitioner and her co-accused were innocent and did not commit any offence. Also submitted that Mst. Haseena Mai the alleged abductee contracted valid' marriage with Muhammad Ajmal, a younger brother of her husband. It was- contended by the learned counsel that learned Addl. Sessions Judge was not ompetent to summon the petitioner and her co-accused without recording the evidence and further that since the names of the petitioner and her coaccused Mumtaz were not shown in the challan, the learned Addl. Sessions Judge had no authority whatsoever to summon the petitioner or her coaccused to face the trial. 3. I have heard the learned counsel and considered his contentions with care. 4. Similar contentions were raised before this Court in case Ghulam Hussain and others vs. The State which disposed of on 13.12.1995 and reported in PLJ 1996 Crl. Cases 198.1 expressed the view that:- "The Court takes cognizance of the case as a whole and not qua some of the accused found by the police implicated in the case. Cognizance can be taken even if the offender is un-known. On taking cognizance of the offence the Court acquires jurisdiction over all the persons involved and not only over the persons against whom the challan is submitted. Cognizance means application of mind to the facts of the case in order to determine whether the facts disclosed constitute an offence triable. Application of mind for the purpose of cognizance under Sec. 190(1) and (3) read with determining whether the facts disclosed constitute an offence triable exclusively by the Court of Sessions. A Magistrate ends the whole case to the court of Sessions and not qua the accused only who are placed in column No. 2 or 3 of the report under section 173 Cr.P.C." 5. The present case was not cancelled. Only the petitioners were found innocent and they were discharged under section 63 Cr.P.C. whereas other accused named in the FIR were challaned. It is clear that the challan was submitted to the court of Magistrate who took the cognizance and sent the same to the Court of Sessions for trial. In the presence of the material on record there was no need to record the statements of the witnesses first and then to call the petitioners to face the trial. It would amount to rehearsal of a full fledged trial and wastage of precious time of the court and the public at large. In the case of Wapar-ul-Haq alias Nithoo and ethers vs. The State reported in 1988 SCMR 1428, it was observed that "the contention that first evidence should be recorded and if in the light of such evidence, the trial court deems it proper to summon them, only then they may be summoned, did not find favour and it was held that the accused persons whose names appeared in column No. 2 of the challan can be summoned by the trial court directly to stand trial and it is not necessary that first some evidence should be recorded. 6. The petitioner is named in the FIR and the prosecution witnesses have named her in their statements under section 161 Cr.P.C. In such a situation, it is not necessary for the trial court to record the statements of the complainant or the prosecution witnesses before summoning the accused to face the trial in a case registered by the police. The accusation against the petitioner exists in the first information report, and the statements recorded under section 161 Cr.P.C., which would prima facie show that there, were reasonable ground to proceed with the trial against the petitioner and her coaccused. It would be immaterial if the name of the accused/petitioner is mentioned in column No. 2 or of the challan or not. 7. The challan case cannot be equated with the compliant case. It may be necessary under section 202 Cr.P.C. to record statement of the complainant before summoning the accused person to face trial under section 204 Cr.P.C. but the situation is different in a case in which the police records the FIR and submits the challan in the Court. Sec. 265-B Cr.P.C. deals with the procedure to be adopted Sessions Court and Sec. 265-C provides that FIR, police report, statement of all the witnesses recorded u/Scc. 161, 164 and the inspection note recorded by the 1.0. an the first visit to the place of occurrence and note recorded by him, recoveries if any, shall be supplied free costs to the accused and the Court after perusing the police report and all other documents and statements filed by the prosecution will form its opinion, if there is ground for proceeding with the trial of the accused and then it shall frame in writing charge against the accused as provided under section 265-D, Cr.P.C. 8. The learned Addl. Sessions Judge in the impugned order observed that:- "I have gone through the file particularly the investigation carried out by DSP Circle and statements of the PWs recorded by him u/S. 161 Cr.P.C. and find that sufficient material has been brought on record inculpating Mst. Naziran wife of Iqbal, Mumtaz s/o Allah Ditta with commission of offence u/S. 11, offence of Zina and section 114 PPC. The mere fact that they both were found innocent and were got discharged is hardly a sufficient ground to detract this court from summoning them as accused to face trial, without recording evidence. This observation of the learned Addl. Sessions Judge in the impugned order leads to irresistable conclusion that he perused the relevant material and applied his judicial mind to the facts and cirra instances of the case before summoning the petitioner and her co-accused to face the trial. The impugned order can neither be termed mechanical nor improper or incorrect. It cannot also be held as the abuse of the process of the court as envisaged in section 561-A Cr.P.C. For what has been stated above, this quashment petition has no merits which is hereby dismissed in limine. Police file to returned forthwith. (MAA) Petition dismissed in limine.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1595 [Rawalpindi Bench] Present: raja abdul Aziz BHATTI, J. Mst. ZOHRA BIBI-Petitioner versus ABDUL KHALIQUE and STATE-Respondent Bail-Cancellation of— S. 497(5) Cr.P.C.-Bail-CanceUation of-Offence u/S. 302/34 PPC— Petitioner was empty handed only lalkara has been attributed to him-- Seeking cancellation of bail in given circumstances is not appropriate— There is nothing special in order of Trial Court to be taken into consideration for interference-Petition dismissed. [P. 1596] A Mr. Muhammad Asif Chaudhry, for Petitioner. Raja SaeedAkram, AAG. Date of hearing: 14.12.1995. order Brief facts of the case are that a case FIR No. 73 dated 10.2.1995 under Section 302/34 PPC was registered at police station Wah Cantt: on the report of Mst. Zohra Bibi against the two accused namely Nazir Ahmad and Abdul Khaliq. 2. According to the contents of the FIR Mst. Zohra Bibi, being issueless adopted Muhammad Asghar as a son, when he was aged of 5/6 months. When he coming to his youth, he married with one Mst. Musarat Bibi. Abdul Khaliq and Nazir Ahmad were not happy on this marriage. In order to take revenge, allegedly on the night of occurrence, when Muhammad Asghar had repatriated to Pakistan after serving in Saudi Arabia, he was done to death by Abdul Khalid and Nazir Ahmad accused. Nazir Ahmad was armed with a pistol, he made two fires which hit Muhammad Asghar deceased, who fell down on the ground and died at the spot. While Abdul Khalid accused raised only lalkara. Thereafter both the accused ran away from the spot. 3. During investigation both the accused were arrested. Nazir Ahmad applied for bail which was refused by the Trial Court. While Abdul Khaliq was granted bail vide order dated 5.9.1995. 4. Learned counsel for the petitioner seeks cancellation of bail granted to Abdul Khaliq co-accused on the grounds that both the accused committed lurking house trespass; that on the basis of the facts mentioned in the FIR both the accused have committed murder of Muhammad Asghar intentionally and with preplaning, as the came to the place of occurrence together; and that both are real brothers, as such, the motive is attributed to both of them. 5. On the other hand, cancellation of bail petition has been opposed by the learned counsel for the accused/respondent. According to him, Abdul Khaliq accused/respondent has been attributed only lalkara. He had not caused any injury to the deceased. The trial Court has rightly granted the bail after due consideration of the facts and circumstances of the case. The bail order passed by the Trial Court is not whimsical. 6. I have heard the arguments of the learned counsel for the parties and gone through the record minutely, especially order passed by the learned Trial Court for granting bail to Abdul Khaliq, respondent No. 1. Admittedly, Abdul Khalid was empty handed. Only lalkara has been attributed to him, which itself is sufficient to say, at this stage, that order passed by the learned Trial Court is not liable to be set-aside. Seeking cancellation of bail in the given circumstances is not appropriate. Though the arguments of the learned counsel for the petitioner has some weight but when bail is granted and description is used by the Court of competent jurisdiction then some special circumstances are needed to set-aside the bail order. There is nothing special in the order of the learned Trial Court to be taken into consideration for interference. Hence the petitign for cancellation of bail is dismissed. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1597 Present: ahmad saeed awan, J. MUHAMMAD PERVAIZ-Petitioner versus STATE-Respondent Crl. Misc. No. 5437/B/95, dismissed on 7.5.1996. Bail- —-S. 497/498 Cr. P.C.-Bail-Grant of-Prayer for-Offence u/S. 302/324/ 148/149 PPC-F.I.R. was lodged promptly-There is no animosity against petitioner-Petitioner being armed with a dagger threatened others not to come near to assailing and took an active part in commission of offence-- Co-accused are proclaimed offenders and as contended by learned counsel for respondents threats might be given to complainant-Petition dismissed. [P. 1598] A, B & C Mr. Taki Ahmad Khan, and Mr. Pervaiz Inayat Malik, Advocates for Petitioner. Mr. Pervaiz Inayat Malik, Advocate for Petitioner Mr. M. Naeem Ullah Khan Sherwani, Advocate for Complainant. Ch. AsgharAli, Advocate for State. Date of hearing: 7.5.1996. order This is an application for grant of bail to Muhammad Pervaiz in case F.I.R. No. 238/95 dated 27.6.1995 registered under Sections 302/324/148/ 149 P.P.C. with Police Station Pasrur, DistrictSialkot. 2. The prosecution case is that the petitioner alognwith five others on 27.6.1995 at 7.p.m. attacked upon the real son of the complainant; the petitioner was armed with a dagger; it is alleged that the petitioner threatened others not to come near to the assailants. 3. The learned counsel for the petitioner in support of the petition contended that the petitioner's case is quite distinguishable from the case of Muhammad Ashraf, co-accused; whom bail was refused by the Court in Crl. Misc. No. 3398/B/95 for the reasons neither overt act is attributed to the petitioner nor motive is alleged to the petitioner in the F.I.R.; the petitioner is not related to the other co-accused like co-accused Muhammad Ashraf; the complete challan of the case has not been submitted so far and the petitioner at the time of occurrence was a student of matric; further argued that the role attributed to the petitioner was not that of instigation as attributed to co-accused Muhammad Ashraf and role attributed to him is of general nature and was not attributed any injury to the deceased; hence his case is one of further inquiry. 4. The bail application was opposed on the grou.J of vicarious liability; rejection of bail application of co-accused by the Court vide Criminal Miscellaneous No. 3398/B/95 and further contended by the learned counsel that principal accused.are still absconder and have been declared proclaimed offender. 5. I have heard the arguments advanced by the learned counsel for both the sides at some length and have gone through the record carefully. 6. Admittedly co-accused Asghar and Afzal are still at large and have been declared proclaimed offender; the accused person except Rehmat are of the same age group; there is no animosity against the petitioner; the F.I.R. was lodged promptly and there was no time for consultation or reasons to involve the petitioner innocently and the petitioner was present at the spot during the course of incident. 7. The dictum laid down in case Muhammad Ismail vs. Patten Malak and other reported as 1979 S.C.M.R. 91 relied upon by the learned counsel for the petitioner is not applicable to the facts of the case in hand as in the supra case; from the very averments in the P.I.R; it appeared that the dispute arose suddenly over the fixing of a hedge wire around the field of complainant; while the petitioner according to the averments in the F.I.R. being armed with dagger threatened others not to come near to the assailings and took an active part in the commission of "the offence. 8. Having regard to the facts and circumstances of the case ; in view of the detailed order passed in Crl. Misc. No. 3398/B/95; wherein mostly the same arguments were advanced by the learned counsel except of "instigation"; I am not inclined to interfere in the discretion exercised by the learned Additional Sessions Judge; further co-accused Asghar and Afzal are still absconding and certainly as contended by the learned counsel for the respondents threats might be given to the complainant; therefore, at this state to release the petitioner means to keep the complainant in constant threats; resultantly this petition being devoid of merits is dismissed. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C (Peshawar) 1599 Present: jawaid NAWAZ KHAN GANDAPUR, J. ISHTIAQ AHMED-Appellant versus STATE X--Respondent Cr. A.No. 97 of 1996, accepted on 12.6.1996. (i) Burden of proof-- —-In criminal cases burden of proving case rests on prosecution which is duty bound to prove its case against accused, beyond reasonable doubt- This duty, it may be mentioned, does not change or vaiy even in a case in which no defence plea is taken by accused. [P. 1601] A (ii) Burden of proof- —In criminal trial onus always lies on prosecution to prove its case and prosecution has to succeed upon strength of its own case and not on weakness of defence. [P. 1601] C (iii) Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 103~Heroin-Recovery of-Conviction for-Challenge to~Offence U/s 3/4 Prohibition (Enforcement of Hadd) Order, 1979-Since persons from public being available and present, were not even called upon to become recovery witnesses, therefore, mandatory provision of Sec. 103 Cr. P.O. were definitely violated-Appeal accepted. : [P. 1603] E (iv) Defence Plea- —Defence plea is always to be considered in juxta position with prosecution case and, in final analysis, if defence plea is proved or accepted then prosecution case would stand discredited and shattered—However, if defence plea is substantiated, to the extent of creating doubt in the credibility of prosecution case, then in that case, it would be enough. [P.1601]B (v) Investigation- —Heroin-Recovery of-Conviction for-Challenge to-A.S.I. himself is a complainant and has also acted as an Investigating officer-Legally he could not assume dual function-It was incumbent upon complainant to have entrusted investigation of case to another dis-interested policeofficer-If such a procedure/practice is allowed to continue, if would give a licence to police to involve innocent people in fake/false cases according to their whims-This trend is extremely dangerous and is accordingly deprecated with contempt-Recovery memo : relied upon by prosecution is discarded-Appeal accepted. [P. 1603] F (vi) Practice and Procedure-- —-It is now well settled principle of law that if law provides that an act should be done in a particular manner, then in that case, it shall be done in that manner and not in any other way. [P. 1602] D Mr. Murtaza Khan Durrani, Advocate for Petitioner. Mr. Muhammad Khurshid Khan, Assistant Advocate General, for State. Date of hearing: 12.6.1996. judgment The prosecution story as reflected from the F.I.R. (Ex. P.A), in brief, is that on 28.3.1993, A.S.I. Badam Gul (P.W. 3) was on 'Gasht' of his Illaqa alongwith the police party consisting of Foot Constable Alam Zeb (P.W. 1) and Foot Constable Khan Wali (not produced). When the police party reached the General Bus Stand, Peshawar, they saw appellant Ishtiaq Allied son of Hakim Nisar Ahmed Nisar, resident of Murid, Tehsil and District Chakwal (Punjab) standing there in suspicious condition. The police party, therefore, checked him. The personal search of the appellant led to the recovery of a plastic bag, containing contraband heroin powder weighing 15 grams. Since the appellant could not show that he was in lawful possession of the same therefore he was arrested. The heroin powder in question was taken into his possession by A.S.I. Badam Gul (P.W. 3) vide : Recovery Memo : (Ex. P.C.) in the present of its marginal witnesses i.e., F.C. Alam Zeb (P.W. 1) and F.C. Wali Khan (not produced). One gram of heroin powder was separated and sent to F.S.L. for Chemical Examination (Report Ex. P. 2) whereas the remaining 14 grams of heroin powder (Ex. P.I.) was sealed in an envelope. Thereafter the A.S.I. (P.W. 3) scribed the Murasila (Ex. P.A./1) and sent the same to Police Station Gulbahar where on its basis F.I.R. No. 752 (Ex. P.A.) was registered under Article 3/4 Prohibition (Enforcement of Hadd) Order, 1979 against the appellant. 2. After the completion of the usual police investigations charge sheet U/S. 173 Cr. P.C. was submitted against the appellant by the local police in the court of Illaqa Magistrate under Article 3/4 of the Prohibition Order, 1979. The Magistrate in turn forwarded the same for trial to the Sessions Judge U/S. 190 (3) Cr. P.C. 3. The prosecution, in order to establish its case, produced as many as three witnesses, all police officials. 4. The appellant was examined U/S. 342 Cr. P.C. In this statement he refuted the charges levelled against him and attacked the validity of the statements of all the P.Ws. on the grounds that, all the them, being police officials, were interested witnesses and could not be relief upon safely in the absence of any other independent/dis-interested witnesses. The alleged recovery of heroin powder effected from the possession of the appellant by the 1.0. was denied in-toto 334 P.P.C. is not only punishable with Qisas but also punishable with ten years rigorous imprisonment. The petitioners acted in furtherance of their common intention to kill Allah Bakhsh. The statements of the petitioners before the police reveal that there was a rumour that Allah Bakhsh was having illicit liaison with the wife of Karam Hussain petitioner. She was not having her company with Allah Bakhsh when he was ambushed. Even if the petitioners were of the opinion that the story relating to the narrated amorous intrigue was correct, then the worst the petitioner Karam Hussain could do was to divorce his wife. Sharia does not allow any one to commit the offence on hearsay evidence. The facts and circumstances of the case do indicate that the petitioners behaved like hardened criminals. 5. For the foregoing reasons this bail application is hereby rejected. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C ( Karachi ) 1605 [Circuit Court Hyderabad ] Present: AMANULLAH ABBASI, J. KHADIM HUSSAIN-Petitioner versus STATE-Respondent Crl. Rev. No. 13 of 1996, decided on 23.5.1996. Jurisdiction-- —Jurisdiction-Question of-SHO filed an application before Additional Sessions Judge, requesting therein that interim order challan may be returned for submission of challan before Court of Suppression of Terrorist Activities~ADJ has acted on request of police without examining case papers as to whether scheduled offence is made out-­ Order does not reveal that scheduled offence has been made out, therefore, order cannot be upheld-Order accordingly. [Pp. 1605 & 1606] A & B Mr. Muhammad Yousaf Laghari, Advocate for Applicant. Mr. Abdul LatifAnsari, Asstt. A.G. Sindh. Date of hearing: 23.5.1996. order The impugned order of the learned Ilnd Additional Sessions Judge Mirpur Khan is as under :- "The S.H.O. Kot Ghulam Muhammad filed on application, requesting therein that the interim order challan and other papers may be returned to him for submission of challan before the Court of Suppression of Terrorist Activities (STA) at Hyderabad, as directed by Superintendent of Police Mii-pur Khas to SHO concerned." The R & P of the above Sessions case duly paged No. 1 to 122 which was received by this Court are submitted herewith for action as deemed necessary, in the light of the request of concerned police." Learned State Counsel does not support this order because learned 'additional Sessions Judge has acted on request of police without examining case papers as to whether a scheduled offence is made out. Since there is not mention that the scheduled offence was made it was in the competence of the concerned Additional Sessions Judge to refuse the request of police. This order does not reveal that the scheduled offence has been made out and therefore this order cannot be upheld. This impugned order is therefore set-aside. In case the trial judge is of the view that the scheduled offence is made out then after hearing the concerned parties, he may make any order in accordance with law. This Cr. Rev. Appln. No. 13/96 stands disposed of. (K.K.F.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1606 [Multan Bench] Present: syed zahid hussain bokhari, J. MUHAMMAD IKRAM-Petitioner versus STATE-Respondent Crl. Misc. No. 597-B-96, dismissed on 24.4.1996. Bail- —-S. 497 Cr. P.C.»Bail»Grant of-Prayer for-Offence U/S. 324/337-F (ii)/34 PPC-Grievous hurt with Sota blows-Case of-After operation of head of injured certain bone gaps were evident in X-rays reports-- •flfeftfrjTMrf nf sMJ W£££ Silt &nd froth was coming from mouth and he was feeiing aiificu^ry in o^e-:...r.g di i_~,e ci ir.ii.: 1 ^ cSir^-i-itLVL— Intention of accused can be gathered from weapon used, part of tcdy selected for causing injury and nature of injury itself-Weapon was lethal-­ Part of body was a vital organ like head-Bail refused. [P.1608 ] A & B Maulvi Muhammad Sultan A/am, Advocate for Petitioner. Sh. Muhammad Rahim, Advocate for State. Date of hearing 24.4.1996. Approved for reporting on 1.7.1996. order Petitioner Muhammad Ikram sought bail after arrest in case FIR No. 7/96 dated 9-1-1996 under sections 324/337-F (ii) 34 PPG of P.S. Thingi Distt: Vehari registered on the statement of Muhammad Arshad against the petitioner and his co-accused Khushi Muhammad and Zulfiqar for an occurrence which took place on 8-1-1996 at 11 p.m. in the area of Chak No. 159/WB situated at a distance of 7 k.m. from the police station, in which petitioner Muhammad Ikram allegedly inflicted sola blow on the head of Maqsood Ahmad injured brother of the complainant. Zulfiqar co-accused also gave sota blows on his left ankle and when Noor Ahmad servant of the complainant tried to intervene, petitioner Muhammad Ikram also gave him sota blows. The occurrence was witnessed by Said Hussain, Muhammad Ishaq and Noor Ahmad and the complainant. 2. The occurrence was the result of an earlier altercation and exchange of abuse between Muhammad Ikram petitioner and Maqsood Ahmad injured PW. 3. Learned counsel for the petitioner argued that the petitioner was innocent, that Maqsood injured was discharged from the hospital after 9 days, that no offences under sections 324/337-F(vi) were made out against the petitioner; that the case against the petitioner require further inquiiy with regard to the nature of offence and the participation of the petitioner in the occurrence and that the petitioner was in judicial lock up for the last about 3 months and the provision of section 344 Cr. P.C. were violated and that the offences alleged against the petitioner do not fall within the mis­ chief of prohibitory clause of section 497 Cr. P.C. 4. Learned State counsel argued that the petitioner inflicted a serious head below on the person of Maqsood Ahmad and that he also repeated the blow by causing injury to Noor Ahmad and that for so many ays Maqsood injured PW was not in a position to make a statement; that on receipt of final result, injury on the head of Masood Ahmad was found grievous and declared as Shajjah-i-Damighah and resultantly offence unde section 377-A(vi) was added and that the offences alleged against the petitioner fall within the prohibitory clause of section 497 Cr. P.C. 5. I have heard the learned counsel for the parties and have gone through the record with their assistance. I have considered the contentions raised by the learned counsel with care. 6. The occurrence took place at 11 p.m. and the matter was reported to the police promptly within 4 hours with all material details. Injured Maqsood Ahmad was not in a position to make any statement on 15-1-1996, 7-1-1996 and 22-1-1996. According to the report of Dr. Sajjad Ahmad MBBS, Assistant Radiologist, Nishtar Hospital, Multan multiple fracture lines were visualized in the wall of the skull involving temporal bone. He has served multiple bone gaps which represented crematory operation marks. 7. The report of the Radiologist clearly indicates that Maqsood Ahmad injured received serious head injury and consequently the doctor declared this injury as Shajjah-e-Damighah. Section 337(3)(vi) provides that whoever causes sgqjjah: "By causing fracture of skull of the victim and the wounds reptures the membrance of brain is said to cause Shqjja-i- Damighah and Section 337-A(vi) prescribes that who ever by doing any act with the intention of, thereby causing hurt to any person or with the knowledge that he is likely thereby the cause hurt to any person causes-(vi) Shajjah-i- Damighah to any person, shall be liable to Arsh which shall be half of Diyat and may also be punished with imprisonment of either description for a term which may extend to 14 years as Ta'zir. 8. The contention raised by the learned counsel for the petitioner has no force in the presence of over-whelming medical evidence. The victim has to undergo operation in the hospital and after the operation of head of Maqsood Ahmad certain bone gaps were evident in the X-rays report The membrane, of the skull were cut and the froth was coming from the mouth of Maqsood Ahmad injured and he was feeling difficulty in breathing at the time of his medical examination. 9. The police during the investigation has added section 337-A(vi) and offences under sections 324 and 337-A (vi) fall within the prohibitory clause of section 497 Cr. P.C. The intention of the accused can be gathered from the weapon used, part of the body selected for causing injury and the nature of the injury itself. In this case the weapon used was lethal. The part of the body was a vital orgin like head and nature of injury was of course, serious. Prima facie there appear reasonable grounds for believing that the etitioner has been guilty of an offence punishable with imprisonment for 10 years or more. 10. For what has been stated above, this petition has no merits which is accordingly dismissed. 11. I would like to make it clear that all the observations made in this order are to be taken for the purpose of disposal of this bail petition alone and w/mld have no bearings at the stage of trial. The learned trial Judge shall form his own opinion on the basis of evidence produced before him. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1609 [ Multan Bench] Present: muhammad asif jan, J. ATHAR SHAHZAD-Petitioner versus STATE--Respondent Crl. Misc. No. 1004-8-1996, dismissed on 4.6.1996. Bail--Pre-arrest~ —S. 498 Cr. P.C.-Bail before arrest-Grant of-Prayer for-Offence U/Ss. 337-F (ii)/337-F (iv) 337-A (ii) 148/149 PPC--!njury on right arm and also on left hand of complaint with a scythe as a result of which amputation had to he carried out-Allegation of-Extraordinary concession of bail before arrest has to be granted with great care and caution-Discretion has to be exercised with utmost care and under lying principle is that neither case of prosecution nor case of defence should be pre-judged and prejudiced-Pettion dismissed. [P. 1609] A & B PLD 1994 SC 133 Ch. Saghir Ahmad, Advocate for Petitioner. Date of hearing 4.6.1996. Approved for reporting on 1.7.1996. order Athar Shehzad petitioner seeks the extraordinary concession of bail before arrest in a case registered against him and others vide FIR No. 350/95, dated the 12th of December 1995, under Sections 337-F (ii)/337-F (iv)/337-A (ii)/148/149 PPC at Police Station Gaggo, District Vehari, on the ground that there is a delay in lodging the FIR and that at any rate the case against the petitioner is false. 2. The specific allegation against the petitioner is that he caused on •5 injury on the right arm and also on the left hand of Muhammad Sharif complainant with a scythe as a result of which amputation had to be carried out. 3. The extraordinary concession of bail before arrest has to be granted with great care and caution. The discretion has to bo exercised with utmost care and the underlying principle is that neither the case of the prosecution nor the case of the defence shoul'd be pre-judged and prejudiced as has been laid down by my Lord Mr. Justice Sajjad Ali Shah, the present Chief Justice of Pakistan in the case of Sarwar Sultan v. The State and another (PLD 1994 S.C. 133). 4. There is no merit in this petition, which is dismissed. (K.K.F.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1610 [ Bahawalpur Bench] Present: muhammad naseem, J. MUHAMMAD AKRAM-Petitioner versus STATE-Respondent Crl. Misc. No. 435/B-1995, accepted on 13-7-1995. Bail- —S. 497 Cr. P.C.-Bail-Grant of--Prayer for-Offence U/A. 12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 377 PPC-Sodomy-Case of-Both witnesses do not support prosecution case- Affidavits filed by witnesses exculpating accused from commission of crime the case of prosecution become that of further inquiry falling U/S. 497(2) Cr. P.C.-No doubt report of Chemical Examiner has been received in positive, but complainant has expressed about inception of compromise on basis of decision of Punchayat—lt can safely be held that it is better to admit petitioner to bail-Petition accepted. [P. 1611] A & B Syed Munawar Hussain, Advocate for Petitioner. Mr. Z.A, Bukhari, Advocate for State. Date of hearing: 13.7.1995. judgment Sajjad Ahmad complainant aged 13 years got recorded FIR No. 106 dated 25-3-1995 at Police Station Civil Lines Bahawalpur under Article 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 377 PPC with the allegation that on 24-3-1995 at 11. A.M. he was allured by Muhammad Akram petitioner-accused to Dera Bakha on the pretext to see the 'Maila'. At that time Muhammad Akram was with another person named as Ghulam Mustafa. They took him to Basti Mangwana where they passed the night in a room. Muhammad Akram petitioner is said to have committed forcible sexual intercourse against the order of nature with Sajjad Ahmad complainant during the night. On the next morning Muhammad Akram attempted to perform the same act when the alarm of Sajjad Ahmad complainant is said to have attracted Muhammad Ashiq and Abdul Khaliq PWs residents of Mauza Mangwana. Seeing them Muhammad Akram Petitioner and Ghulam Mustafa are said to have made good their escape. The PWs sent him to Bahawalpur in a bus. On the arrival of his father Wahid Bakhsh the matter was reported to the police. 2. The Medical Officer examined Sajjad Ahmad. The anal swabs have been found to be positive by the Chemical Examiner. Muhammad Akram was arrested who has been declared as potent by the medical witness. The bail plea of Muhammad Akram has been rejected by the lower court who has filed this petition to try his luck to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as the State counsel and gone through the record before me. Bo h Muhammad Ashiq and Abdul Khaliq PWs are present before me who have submitted their respective affidavits which form part of this file. It is mentioned in their statements recorded under section 161 of the Criminal Procedure Code that they had gone to Basti Mangwana in connection with their business when they heard the alarm. However, according to them they are the residents of Mauza Sahlan, Tehsil and District Bahawalpur. Is their respective affidavit the PWs have got sworn in that they are not the residents of Basti Mangwana and that they are not aware of the facts of the case. They have owned their respective affidavits before the Court today. At this stage it is proper to express that Wahid Bakhsli father of Sajjad Ahmad complainant/victim is present who has verbally expressed that a compromise has been effected as in a Punchayat Muhammad Akram has been declared as innocent and that he is satisfied with the decision of the Punchayat. 4. No doubt, as rightly expressed by the learned State counsel, an offence of the present nature is detestable as well as heinous, However, the law has to take its course. Both the witnesses Muhammad Ashiq and Abdul Khaliq do not support the prosecution case who have submitted their respective affidavit and have owned the same before this Court today. According to the dictum enunciated in Allah Bakhsh versus Nazar Hussain Shah and another (1979 S.C.M.R. 13?) if the affidavits are filed by the lleged eye-witnesses exculpating the accused from the commission of the crime the case of the prosecution becomes that of further inquiry falling under section 497(2) of the Criminal Procedure Code which is a legal ground for the admission of an accused to bail After the affidavits of the aforesaid eye-witnesses, there is the solitary statement of the complainant about his removal from Bahawalpur to Basti Mangwana for the purpose of commission of sodomy upon him and thereafter the practical role of commission of sexual intercourse against the order of nature. No doubt the report of the Chemical Examiner has been received in the positive, but in view of the personal appearance of Wahid Bakhsh father of Sajj'ad Ahmad complainant who has expressed about the inception of compromise on the basis of decision of Punchayat it can safely be held that it is better to admit Muhammad Akram petitioner to bail than to retain him in jail. I, therefore, do not agree with the learned counsel for the State that this application may be dismissed. 5. For what has been said above, I hold that it is a fit case for the admission of the petitioner to bail. Consequently he is admitted to bail in the sum of Rs. 20,000.00 (Rupees Twenty Thousand only) with one surety in the like amount to the satisfaction of the Sessions Judge/Duty Sessions Judge Bahawalpur. 6. Copy Dasti subject to payment of usual charges, if desired. (M.S.N.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1612 [Multan Bench] Present: syed zahid hussain bokhari, J. LIAQUAT ALI and 2 others-Petitioners versus STATE-Respondent Crl. Misc. No. 712/B-96, accepted on 20.5.1996. Bail-- —S. 497 Cr. P.C.-Bail--Grant of--Prayer for--0ffence U/S. 302/148/149 PPC--Double murder-Allegation of-Two petitioners are not related to remaining three accused who are brothers inter se and have no direct concern with motive-One petitioner was armed with 7 mm rifle and other with a pistol but they did not use same in any manner-Petitioners had neither instigated their co-accused nor they had caused any injury to deceased or any other witness-No overt act is attributed to them- Presence of petitioners with co-accused un-accompanied by any criminal act makes out a case of further inquiry and possibility that petitioners may not have accompanied their co-accused cannot be ruled out with certainty-Question of vicarious liability shall be determined at stage of trial-Petition accepted. [P. 1613] A Mr. Abdul Rahsid Sheikh, Advocate for Petitioners. Sh. Anwar-ul-Haq, Advocate for State. Date of hearing: 20.5.1996. Approved for reporting on 1.7.1996. order Liaquat, Arif Hajjam and Ghulam Shabbir petitioners have sought bail after arrest in case FIR No. 316/95 dated 10-12-1995 of P.S. Karore Distt: Layyah under section 302/148/149 PPC registered on the statement of Haji Faqir Muhammad against the petitioners and two others for the commission of murder of Mst. Naziran and Abdul Jalil son of the complainant who expired at the spot in an occurrence which took place on 10-12-1995 at 9.30 a.m. in the area of Chak No. 99-B, TDA situated at a distance of 6 k.m. from the police station. 2. The motive for the occurrence as set up in the FIR is that Mst. Naziran sister of Ghulam Shabbir accused-petitioner eloped with Abdul Jalil who thereafter contracted marriage which gave annoyance to Ghulam Shabbir petitioner and his co-accused and they allegedly murdered both of them on the same grudge. 3. After arguing the bail petition on behalf of Ghulam Shabbir, petitioner, at some length, the learned counsel of the petitioners opted to withdraw this petition to his extent. Consequently the prayer for the grant of bail to Ghulam Shabbir is declined as not pressed. 4. Learned counsel for the petitioners argued that Liaquat and Arif petitioners are not directly connected with the motive; that no overt act has been attributed to them; that although allegedly armed with fire arms they did not use the same and that the petitioners are in the judicial lock up and no more required for further investigation. 5. Learned counsel for the State argued that the petitioners are named in the promptly registered FIR, they shared the common intention of their co-accused and that the offences alleged against them fall within the prohibitory clause of section 497 Cr. P.C. 6. I have heard the learned counsel for the parties and have gone through the record. 7. Admittedly Liaquat and ArifHqijam petitioners are not related to the remaining three accused who are brothers inter-se and have no direct oncern with the motive narrated in the FIR. Liaquat petitioner was allegedly armed with .7 mm rifle and Arif petitioner a pistol but they did not use the same in any manner. The petitioners had neither instigated their coaccused nor they had caused any injury to the deceased or to any other witness. No overt act is attributed to them. Presence of the petitioners with co-accused un-accompanied by any criminal act makes out a case of further inquiry into the guilt and the possibility that the petitioners may not have accompanied their co-accused cannot be ruled out with certainity at this stage. The question of vicarious liability shall be determined at the stage of trial. 8. For what has been discussed above, this petition is accepted qua Liaquat and Arif Hqijam petitioners. They are admittedly to bail subject to their furnishing bail bond in the sum of Rs. 2 lacs each with two sureties each in the like amount to the satisfaction of Judicial Magistrate/Duty Magistrate, Karore, Distt: Layyah. (M.S.N.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1656 Present: AHMAD SAEED AWAN, J. MUHAMMAD SALEEM-Petitioner versus STATE-Respondent Crl, Appeal No. 364-84 decided on 8-5-1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 382-B--Murder--Offence of-Conviction for life imprisonment-Benefit of S. 382-B Cr.P.C.-Prayer for-Neither trial court nor High Court pointed out any circumstances which would justify denial of extension of benefit of Section 382-B Cr.P.C. to petitioner-Whereas provisions being mandatory makes no distinction whether sentence to be passed is for imprisonment for life or for a shorter period-Benefit granted to an accused the period during which he was detained in custody shall be taken into consideration need not be whittled down-Petition accepted. [P. 1657] A&B PLD 1995 S.C. 485, 1992 S.C.M.R .2072, PLD 1991 S.C. 1065 1995 SCMR 1525 and 1991 P.S.C. 1273 ref. Ch. Muhammad Anwar Dholan, Advocate for State. Date of hearing: 8.5.1996. order The petitioner Muhammad Saleem son of Umar Din was tried on a charge under Section 302 P.P.C. in case F.I.R. No. 112/8- dated 31.3.1982 registered with Police Station Kamoke for the murder of Safdar Hussain and the trial Court vide judgment dated 15th February 1984 convicted him under Section 302 P.P.C. and sentenced him to life imprisonment plus fine; on appeal, his conviction was maintained by the learned Single Judge of the Lahore High Court and petition for leave to appeal before the Supreme Court was also dismissed. 2. The Trial Court as well as the learned Single Judge of the High Court; while maintaining conviction and sentence did not allow the benefit of Section 382-B Cr.P.C. to the petitioner; hence the petitioner has moved an application through Jail that benefit of Section 382-B Cr.P.C. for the period 1.4.1982 to 15.2.1984 be extended to him to which he is entitled under the law. 3. The learned counsel for the State contended that benefit of Section 382-B Cr.P.C. at this stage could not be extended in the presence of earlier pronouncement made by the High Court as well by the Supreme Court wherein the benefit of Section 382-B Cr.P.C. has not extended to the petitioner. 4. In case Liaqat All vs. The State (P.L.D. 1995 S.C. 384) while elaborating Section 382-B Cr.P.C.; their Lordships observed that" it is quite clear from the language of Section 382-B Cr.P.C that while passing sentence of imprisonment on an accused for an offence; the trial Court is bound to take into consideration the period if any during which the accused was detained in custody for such offence. 5. In case Amjad and another vs. The State (1992 S.C.M.R. 2072) the trial Court; like case in hand had omitted to extend the benefit of Section 382-B Cr.P.C. without noticing any features in the case justifying such denial to the accused; the Supreme Court extended the benefit of Section 382-B Cr.P.C. though the appeal was dismissed. 6. Similarly in case reported as Qadir vs. another (P.L.D. 1991 S.C. 1065), it was held that even in cases where the accused is sentenced for imprisonment for life the provision of Section 382 Cr.P,C. are also applicable. 7. The contention of the learned for the State that the benefit of Section 382-B Cr.P.C. at this stage could not be extended in the presence of Superior Courts judgment is misconceived as such an order extending benefit of Section 382-B Cr.P.C. to convict is neither alteration of the judgment nor reviewing the same; such orders in fact are passed under Section 561-A Cr.P.C. to give effect to the legal preposition in view of the dictum laid down by their Lordships in case Muhammad Rafique vs. The State (1995 S.C.M.R. 1525); wherein giving principles as to how the sentencing Court can give effect to the legislative intent expressed in words" shall take into consideration in Section 382-B Cr.P.C; observed; where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out and with regard to whom a definiti n is supplied by the legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised and the Court will require it to be exercised. 8. It was also observed in case Qadir and another vs. The State (1991 P.S.C. 1273) that the provisions being mandatory makes no distinction whether sentence to be passed is for imprisonment for life or for a shorter period; the benefit granted to an accused that the period during which he was detained in custody shall be taken into consideration need not be whittled down. 9. In the present case, I find that neither the trial Court nor the learned Judge of the High Court pointed out any circumstances which would B justify the denial of extension of benefit of Section 382-B Cr.P.C. to the petitioner. 10. In the circumstances, discussed above, the prayer is granted and the petitioner be given benefit of Section 382-B Cr.P.C. The Jail Authorities are directed to make necessary computation in this behalf without any further delay. (MYFK) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1658 [Rawalpindi Bench] Present: tanvir AHMAD KHAN, J. MUHAMMAD YOUNUS-Petitioner versus STATE-Respondent Criminal Revision No. 60 of 1996, accepted on 18.7.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 514-Surety bond-Confiscation of-Order of~Appeal against-Dismissal of appeal-Challenge to-Learned counsel for petitioner and Law Officer are unison on issue that Additional Sessions Judge has committed a grave error in not treating appeal filed before him as revision petition although he placed reliance on an authority wherein such appeal was treated as revision-He dismissed appeal as being not maintainable instead of converting it into revision petition-Held: It is consistent policy of superior courts that matter be decided on merits and technical knock out shall be sparingly resorted to as it amounts to denial of justice-­ Petition accepted. [P. 1659] A, B & C 1986 PCr. LJ 2028 rel Sh. Zamir Hussain, Advocate, for Petitioner. Raja SaeedAkram Khan, A.A.G, for State. Date of hearing: 18.7.1996. judgment Petitioner through this criminal revision has challenged the order of the Additional Sessions Judge, Attock dated 3.6.1996 dismissing his appeal as being not maintainable. Facts briefly for the disposal of this revision petition are that the petitioner stood surety for one Mst. Mah Pan who was involved in a case emanated out of FIR No. 1084 recorded on 15.12.1993 at Police Station Attock Khurd. Said Mah Pari absent from the Court whereupon her bail bonds were confiscated and petitioner asked to show cause, why surety amount be not recovered from him. The petitioner failed to produce the accused lady whereupon the trial Magistrate issued warrants of attachment for the recovery of penalty of Rs. 50,000/-. Since the warrants could not be executed for want of the financial position of the petitioner as such the trial Magistrate sent him to civil prison for six months, the maximum period provided by Section 514(4) Cr.P.C. Aggrieved with this order the petitioner filed an appeal on 23.4.1996. The Additional Sessions Judge, Attock dismissed the same as being not maintainable. Hence this revision petition. I have heard the petitioner as well as learned Law Officer. Both of them are unison on the issue that the Additional Sessions Judge has committed a grave error in not treating the same as revision petition when he himself has held so in the impugned order itself. I have considered the contentions and have gone through the impugned order. I have noticed that, in the impugned order the Additional Sessions Judge placing reliance upon a case reported in (1986 PCr. L.J. 2028) wrongly mentioned (1988 P.Cr. L.J. 2028) in the impugned order titled "Muhammad Khan vs. The State" has reproduced the following j observations of the learned Judge which are as under: - "Sections 410 and 514 (2) Surety Bond, forfeiture of--appeal against forfeiture order, held, was not competent but was allowed to be treated as revision." However, after observing the same instead of converting the appeal to a revision petition, the Additional Sessions Judge dismissed the same as being not maintainable through impugned order dated 3.6,1096, This act on th« part of the learned Additional Sessions Judge has exposed the petitioner not only to extra expense but also to mental agony. It is consistent polity of the superior courts that the matter be decided on merits and technical Knock out shall be sparingly as it amounts to denial of justice. Resultantly this revision petition is accepted and the case is remitted to the Additional Sessions Judge Attock who shall decide the same within one week of the receipt of this order. Office is directed to transmit this order to the learned Additional Sessions Judge for compliance. (Z.B.)

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1659 Present: ahmad saeed awan, J. LIAQUAT ALI-Petitioner Versus MUHAMMAD ASLAM and 5 others-Respondents Criminal Misc. No. 3 of 1995 in Criminal Appeal No. 592 of 1994, accepted on 25.4.1996. Bail—Cancellation of- —Ss. 497(5), 561-A & 369--Suspension of sentence during pendency of appeal-Order of-Cancellation of-Prayer for-True that an order under criminal law cannot be revoked even under section 369 Cr.P.C. but powers under section 561-A of Cr.P.C. cannot be curtailed or limited by jurisdictional requirement-Suspension of sentence under section 426 Cr.P.C. is not right but is a matter of grace-Held: Respondents have misused concession of suspension of sentence and are not entitled to concession-Impugned order withdrawn. [P. 1661] A & B Mr. YusufAli Khan, Advocate for Petitioner, Mr. Shaukat Rafiqw Bqjwa, Advocate for Respondents 1 to 5. Ch. Anwar Dholan, Advocate for State. Date of hearing: 25.4.1996. order The petitioner through this application Crl. Misc. No. 3 of 1995 in Crl. Appeal No. 592/94 under Sections 561-A and 497(5) Cr.P.C. seeks the Court to withdraw orders passed by the Court in Crl. Misc. No. 1 of 1994 and Crl. Misc. No. 2 of 1995 dated 14.12.1994 and 2.2.1995 respectively in the aforementioned criminal appeal filed by the respondents, whereby the sentence awarded to the respondents were suspended under Section 426 Cr.P.C. and were released on bail. 2. The learned counsel for the petitioner at the preliminary hearing of the application had contended that the case law relied upon by the respondents counsel reported a Sijjatullah Akanda and others vs. Empero A.I.R. (32) 1945 Calcutta 42) was not applicable to the fact of the case in hand; in fact the learned counsel instead of assisting the Court rather had misled the Court; further conceded that due to abruptly mishap caused due to him; could not assist the Court in proper manner. 3. The Crl. Misc. No. 3/95 was taken up by the Court on 10.1.1996 as after hearing preliminary hearing and admitting the application notices were issued to the respondents for 24.1.1996; on 24.1.1996 none appeared; hence notices were re-issued to respondents for 7.2.1996 and respondents were also directed to appear in person before the Court; The Senior uperintendent of Police, Kasur, was directed vide Lahore High Court Letter (J.D) No. 5871 dated 29.1.1996 to cause notices to be served upon the respondents; the S.H.O. Police Station Raja Jang who was deputed by the S.S.P. for causing service upon the respondents intimated vide his report dated 6.2.1996 that the respondents refused to receive notices and intentionally avoided service of the notices issued in their names; on 12.3.1996 when the case was taken up learned counsel, Mr. Shaukat Rafique Bajwa, Advocate, for the respondents appeared and sought adjournment to prepare the case in the light of arguments advanced by the learned counsel for the petitioner/applicant and to go through the case relied upon by the senior counsel of his chamber; though the request for adjournment was opposed by the learned counsel for the petitioner but in the interest of justice and to provide an opportunity of hearing to the respondents the case was adjourned to 24.3.1996 with the condition that no further adjournment would be granted in future. 4. On 23.4.1996, none appeared from the respondents hence the case was adjourned to 25.4,1996 to afford another opportunity to the respondents. On the said date neither learned counsel nor respondents jj, appeared in the early hours of the day; though the State counsel was present. The learned counsel for the petitioner as well as learned counsel for the State advanced their respective arguments at length; at 11.30 a.m. the learned counsel for the respondents entered appearance and stated that the respondents had taken away their brief from their chamber, hence is unable to assist the Court as no more counsel for the respondents. 5. I am constrained to observe that the learned counsel for the respondents on the previous date had sought adjournment to prepare the ase in the light of arguments advanced by the learned counsel for the petitioner; the respondents were directed to remain present; neither respondents appeared nor the power of attorney has been revoked so far by the respondents in the case as per record nor the Court was intimated by the learned counsel prior in this regard. The manner, the rl. Misc. No. 3 of 1995 has been handled by the learned counsel for the respondents; coupled with refusal of respondents to receive notices and avoidance of intentional service of notices by the respondents is nothing but misuse of process of law as well as concession of bail/suspension of sentence granted to the respondents. 6. True as it was agitatively argued by the learned counsel for the respondents that the order under criminal law cannot be revoked even under Section 369 Cr.P.C., the contention of the learned counsel is misconceived in ~ matters regarding cancellation of bail/suspension of sentence as the powers possessed by the Courts under Section 561-A Cr.P.C. cannot be curtailed or limited in any manner by any jurisdictional requirement as the jurisdictional requirements of the exercise of powers under Section 561-A Cr.P.C. are to give effect to any order under the Cr.P.C., to prevent abuse of process of any Court and to secure the ends of justice; further suspension of sentence under Section 426 Cr.P.C. is not a right but is a matter of grace by the Court, the conduct of respondents warrants that they are not entitled to the concession ~- of suspension of sentence under the circumstances; hence orders dated 14.12.1994 and 2.2.1995 are hereby withdrawn. 7. The main case was also fixed for 23.4.1996 and then on 25.5.1996, as none appeared; the respondents have misused the concession of suspension of sentence; the sureties are directed to produce the respondents before Assistant Commissioner, Kasur, who shall forward the respondents to the jail and discharge the sureties; if the sureties failed to produce the respondents before the A.G.; law will take its own course. (Z.B.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Quetta) (DB) 1662 Present: munawar ahmad mirza CJ and iftikhar muhammad choudhary, J. NIAZ MUHAMMAD-Petitioner versus STATE Crl. Revision No. 28 of 1996, decided on 11.7.1996. (i) Pakistan Penal Code, 1898 (Act of 1898)-- —-S. 302 read with S. 311--Relinquishment of right of Qisas by father and intention for not pursuing proceedings against accused-Whether father under Muslim Personal Law is competent to compound offence with petitioner in exclusion of brother and sisters -Question of-Deceased being childless, his father, in capacity of residuary would exclude brother and sisters-Therefore, direction for procuring confirmation from brother and sisters issued by learned trial Court through impugned order is totally devoid of k.wful authority-Held: Father alone as residuary is competent to compound offence or relinquish right of Qisas relating to murder of his son. [Pp. 1664,1666] A & B (it) Pakistan Penal Code, 1898 ( Act of 1898)- —S. 302 read with S. 311 & 345 (2) Cr.P.C.-Whether factum of compounding offence and relinquishment right of Qisas would out right constitute acquittal of accused and whether proceedings under section 311 PPC drawn against accused covered by S. 311 PPC drawn against accused covered by S. 311 PPC is compoundable by heirs of deceased-No doubt when offence covered by S. 345(2) is compoundable by person specified in Column-3 of table, permission of court is mandatory for entering compromise-This clearly pre-supposes that court has discretion to refuse permission for compromise-Evidently, section 345(6) Cr.P.C. suggest that normally acceptance of compromise concerning offence specified in section 345(2) with leave of court shall have consequences of acquittal-However, in amended law section 309,310 & 311 P.P.C. have been introduced, further limitation expanding discretion of Court- Therefore, notwithstanding compounding of Tazeer and waiver of Qisas, Court enjoins discretion to punish accused persons; when he is previous convict, habitual or professional criminal or offence has been committed with brutaility--Section-311 P.P.C. does not find mention in table contained under section 345(2) Cr.P.C.-Held: Offence certainly would not be compoundable by heir of deceased-Case remanded for passing fresh order. [P. 1666 & 1667] C, D, E, F Mr. Muhammad Riaz Ahmad, Advocate for Petitioner. Mr. Mehmood Raza, Advocate, for State. Mr. Muhammad Aslam Chishti, Adv. for Respondent. Date of hearing: 11.7.1996. judgment Muuawar Ahmad Mirza, CJ.-This petition calls into question order dated 25th June 1996 passed by learned Additional Sessions Judge, Pishin. Relevant facts briefly mentioned are that, petitioner Niaz Muhammad was apprehended in pursuance of FIR No. 143/1995, lodged with Police Station, Pishin on 28th December 1995 under section 302 PPC. After completion of investigation appellant was sent up to face trial for causing murder of Nawab Khan son of Sher Ali resident, Killi Snagar, Pishin. During pendency of proceedings Sher Ali father of deceased Nawab Khan relinquished right of Qisas as regards petitioner Niaz Muhammad and expressed his intentions for not pursuing proceedings against him alone. SHO police station, Pishin on proper verification concerning heirs of deceased submitted his report on 13.4.1996, specifying that he left behind (i) father Sher Ali (ii) one brother Nazar Jan and (iii) two step sisters who were married. Report further indicated that Nawab Khan was unmarried. It may be mentioned that apart from petitioner co-accused Faizullah, Hameedullah and Muhammad Anwar are also facing trial concerning murder of Nawab Khan. Learned Additional Sessions Judge, Pishin examining various aspects pertaining to compromise executed between petitioner Niaz Muhammad and Sher Ali father of deceased Nawab Khan passed an order on 25th June 1996, operative portion whereof is reproduced hereunder:- "I heard arguments and perused the record. The circumstances in tribal areas just like Pishin, the whole issue cannot be left with the father. Brothers and sisters are also necessary to appear in person or confirm the compromise through commission. Besides it is also not mentioned as to which school of thought the deceased belong. Whether in their school of thought only father is competent to compromise with the accused or otherwise. The case law produced by the learned counsel for the accused is not applicable to the circumstances of present case. Therefore, cannot be relied upon. In view of the above the compromise is accepted to the extent of the father of the deceased. And case will proceed under Tazir U/S. 311 PPC (as amended)." Perusal of above order clearly suggests that learned trial Judge apart from father of deceased Sher Ali felt that presence of his brothers and sisters for giving complete effect to comprise, was necessary. The concluding portion of order further indicates that after accepting compromise to the extent of Sher Ali father of deceased; proceedings against him were drawn under Tazeer as contemplated by section 311 PPC amended up to date. Above referred order has been assailed through present petition. Following question arose for determination in this petition:- 1. Whether father under Muslim Personal law was competent to compound the offence with petitioner by excluding brother and sisters? 2. Whether factum of compounding an offence and relinquishment regarding right of Qisas; would out-right constitute acquittal and direction for drawing proceedings against petitioner under Tazeer within the meaning of section 311 PPC are devoid of lawful authority? 3. Whether proceedings under section 311 PPC drawn against the person involved in the commission of offence convered by section 311 PPC is compoundable by the heirs of deceased? Keeping in view importance and general applicability of above propositions of law M/s Muhammad Aslam Chishti and Raja Muhammad Afsar Advocates were asked to assist the court. Mr. Muhammad Riaz Ahmad learned counsel for the petitioner emphatically urged that father alone could compound the offence and waive right of Qisas by excluding brother and sisters. He relied upon observations in case Basheer Ahmed versus the State PLD 1995 Karachi 5 (PLJ 1995 Criminal Cases Karachi 40). Learned counsel convassed that trial court on accepting the compromise was bound to direct acquittal of petitioner Niaz Muhammad, within the purview of section 345 (6) Cr.P.C. It was further urged trial court disregarded basic requirements of law by directing initiation of proceedings against the accused under section 311 PPC, despite acceptance of compromise. Mr. Muhammad Aslam Chishti Advocate pointing out table of sharers and residuaries regarding inheritance under Sunni Law stressed that when deceased has no child or descendants, father in the capacity of residuary shall exclude brothers and sisters. Therefore, according to him compromise by father was proper. However, learned counsel emphatically argued that under circumstances particularly mentioned in section 311 PPC despite compounding of offence or waiver of Qisas , the court has complete discretion for proceeding against the accused. Raja Muhammad Afsar Advocate agreeing with reasoning advanced by Mr. Chishti Advocate expressed that normally when offence is compounded and legal heirs of deceased relinquish right of Qisas, court should lean towards acquittal of accused and proceedings under section 311 PPC should be drawn only in exceptional cases. Mr. Mehmood Raza, Advocate appearing for the State, however, opposed the petitioner and supported order of the trial Court. We have given anxious thought to all the aspects, and proceed to resolve the proposition in following terms. Firstly considering status of father for purposes of compounding the offence where his issue less son was murdered, it would be necessary to examine table of shares and residuaries under Muhammadan Law: "(a) Table of shares. (1) (2) (3) (4) Normal share Sharers Condition under (B) Conditions of of two which the normal under which one or more share is inherited Sharers Nos. 1, collec- 2, 7, 8, 11 and tively 12 succeed as (b) Residuaries. 1. Father 1/6 __ When there is a (When there is no child or child child or child of of a son h.l.s. son h.l.s., the father inherits as a residuary: (b) Table of residuaries in order of succession: (I) DESCENDANTS: 1. SON Daughter takes as a residuary with the son, the son taking a double portion. 2. SON'S SON his. The nearer in degree excluding the more remote. Two or more son's sons inherit in equal shares. Son's daughter h.l.s. takes as a residuary with an equal son's son, if these be no equal sons son, but there is a lower son's son, she takes as a residuary with him, provided she cannot inherit as a sharer. In either case, each son's son h.l.s. takes double the share of each son's daughter h.l.s. Note ......................................................................................................... (II) ASCENDANTS: 3. FATHER 4. TRUE GRANDFATHER h.l.s.-The nearer in degree excluding the more remote." Besides, while dealing with question of inheritance, text from AL- SIRAJIYYAH which appears in "The Muslim Law of Inheritance" compiled by Al-Haj Muhammad Ullah from the original Arabic authorities containing Arabic and English translation, manifests status of father in chapter 1 para 6 page 115. Relevant portion is reproduced below: - "For the father there are three cases: (i) He takes a mere share of one sixth, alongwith the son or son's son how low so ever: (ii) he is a sharer and a residuary both when he exists with the daughter or son's daughter how low so ever; (iii) he becomes a pure residuary, in case there is no child or sons child, how low so ever." Thus deceased being childless his father Sher Ali in the capacity of residuary would exclude brother and sisters. Therefore, we unhesitating conclude that in the instant case father alone as residuary is competent to compound the offence or relinquish right of Qisas relating to murder of his son. Next question requiring attention would be whether court has any discretion after acceptance of compromise to draw proceedings against culprit despite compounding of offence by the legal heirs. No doubt when an offence covered by section 345(2) is compounded, by person specified in column 3 of the table, permission of court is mandatory for entertaining the compromise. This clearly pre-siipposes that court has discretion to refuse the permission for compromise. However, such discretion must always be cautiously and judiciously exercised. Evidently section 345(6) Cr.P.C., suggest that normally acceptance of compromise concerning offence specified in section 345(2) with the leave of court shall have consequences of acquittal. Thus suffice it to observe that on effecting compromise parties cannot claim its acceptance as of right. However, in the amended law section 309, 310 and 311 PPG have been introduced, further limitation expanding discretion of the court. Therefore, notwithstanding compounding of Tazeer and waiver of Qisas, court enjoins discretion to punish the accused persons, when he is previous convict, habitual or professional criminal or offence has been committed with brutality. We would like to add that section 311 PPC does not find mention in the table contained under section 345(2) Cr.P.C., therefore same certainly would not be compoundable by the heir of deceased. After the above discussion we proceed to examine validity of impugned order. Obviously father of deceased Nawab Khan alone was competent to compound the offence, therefore, direction for procuring confirmation from brother, and sisters issued by learned trial court through impugned order is totally devoid of lawful authority. It seems that trial court due to misconception of law has made vague observations in that behalf. However, in this case prosecution evidence suggests that neck of the deceased was slit-open. Therefore, in the light of above observations and requirements contained in section 311 PPC, trial Judge should apply mind judiciously and specify cogent reasons if it intends to proceed against petitioner under said law. The impugned order is consequently set aside and case remanded to trial court for re-examining the compromise and passing order afresh in the light of above observations. While parting we would like to record our gratitude for valuable assistance rendered by M/s Muhammad Aslam Chishti and Raja Muhammad Afsar, Advocates. (A.P.) Case remanded.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1667 Present: muhammad naseem chaudhry, J. MAQBOOL AHMED alias KOOLI-Petitioner versus STATE-Repsondent Crl. Misc. No. 1228-B-96, allowed on 13.8.1996. Bail- —S. 497~Bail~Grant of-Prayer for-Offences Against Property (Enforcement of Hudood) Ordinance, 1979-Art. 17--jFjraraabaA--Offence of--Mere registration of some cases against a person would not make him a hardened, desperate or dangerous criminal so as to make him disentitled to legal benefit contained under Proviso III to subsection (1) of section 497 Cr.P.C. according to which an accused of any offence not punishable with death is entitled to be admitted to bail if his continuous period of detention exceeds one year-Petitioner was arrested on 13.3.1994-Today is 13.8.1996--There is no exceptional circumstances in favour of prosecution-Petitioner allowed bail on statutory ground. [P. 1669] A Rana Abdul Hameed Khan, Advocate, for Petitioner. Ch. Muhammad Anwar Dholan, Advocate, for State. Date of hearing: 13.8.1996. order Zafar Iqbal complainant got recorded FIR No. 11 dated 11.1.1994 at Police Station Phool Nagar District Kasur under Article 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. According to the complainant on 11.1.1994 at 6.30 p.m. he alongwith Shahid Mahmood son of Muhammad Ah' was present in his house. Five persons armed with firearms trespassed his house who frightened the family members and forcibly took away ornaments, 7 MM rifle, cash amount and other articles mentioned in the FIR. The descriptions of the accused are mentioned in the F.I.R. 2. Maqbool Ahmad alias Kooli petitioner was arrested by the police, Police Station Phool Nagar under section 54 Criminal Procedure Code and was afterwards arrested in crime case No. 8 of 1994 registered at Police Station Phool Nagar. On 13.3.1994 Maqbool Ahmad alias Kooli petitioneraccused was also arrested in this case FIR No. 11 of 1994. This petitioner was sent to the judicial lock up and the identification parade was conducted on 19.3.1994. Both Zafar Iqbal complainant and Shahid Mahmood P.W. identified this petitioner. The bail application of this petitioner was initially dismissed by the Court of Session and also by the Lahore High Court Lahore on 12.2.1995. Thereafter this petitioner filed an application for his admission to bail on statutory ground and the same was dismissed on 1.2.1996 by the Additional Sessions Judge, Pattoke with the observation that he is a hardened, desperate or dangerous criminal. It is, however, mentioned in the said order that the challan of the case has been submitted and the trial shall commence shortly. Through the making of this petition Maqbool Ahmad alias Kooli petitioner-accused desirous to be admitted to bail. 3. I have heard the learned counsel for the petitioner as well as the learned State counsel and gone through the record before me. The police was directed to submit the list of the cases registered against this petitioner. From 15.2.1988 to 10.4.1994 in all 12 cases have been registered. Out of the said cases 6 cases have been registered under section 13 of the Arms Ordinance, 1965. Three cases have been registered under sections 380/411 PPC. One case has been registered under section 380/411 PPC. One case has been registered under section 392 Pakistan Penal Code. The case in hand is the last case. The five certified copies of judgments in five cases have been submitted on behalf of the petitioner which have projected that in 3 cases under Arms Ordinance, 1965 this petitioner was acquitted. In one case registered under section 411/380 Pakistan Penal Code this petitioner was acquitted and in one case registered under sections 457/411/380 P.P.C. this petitioner was acquitted. 4. The important aspect of the matter is that on behalf of the prosecution i.e. the State at present no copy of the judgment making out the conviction of this petitioner-accused has been produced. It, therefore, (Line Missing ? ? ?) aforesaid cases against the petitioner cannot stand in the way of this Court for the purpose of the disposal of this bail application on judicial considerations. Mere registration of some cases against a person would not make him a hardened, desperate or dangerous criminal within the purview of proviso IV to sub-section 1 of Section 497 Cr.P.C. so as to make him disentitled to the legal benefit contained under proviso III to sub-section 1 of Section 497 Cr.P.C. according to which an accused of any offence not punishable with death is entitled to be admitted to bail of his continuous period of detention exceeds one year. In the instant matter this petitioner was arrested on 13.3.1994. Today is 13.8.1996. There is no exceptional circumstance in favour of the prosecution to make me agree with the learned Additional Sessions Judge as well as the learned State counsel that this petitioner is not entitled to reap the legal benefit of the aforesaid provisions of law. Consequently I hold that on the statutory ground of his continuous detention for over & period of one year since 13.3.1994, specially when the trial has not started, this petitioner is entitled to be admitted to bail. 5. I, therefore, accept this application and admit Maqbool Ahmad alias Kooli petitioner-accused to bail in the sum of Rs. 50,000/- (Rupees Fifty Thousand only) with one surety in the like amount to the satisfaction of the earned Additional Sessions Judge Pattoke District Kasur with the direction to appear before the trial Court on every date of hearing as and when required failing which his bail may be cancelled by the trial Court. Copy dasti subject to payment of usual charges, if any. (MYFK) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1669 [Multan Bench] Present: syed zafid hussain bokhari, J. MANZOOR AHMAD-Petitioner versus AHMAD YAR and 3 others-Respondents Criminal Revision No. 219-95 accepted on 5.6.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 435/439 read with Pakistan Penal Code, 1860 Ss. 302/324/109/34- Revision-Private complaint-Summoning of respondents/accused-Order passed by trial Court not speaking order-Presumably court has refused to summon respondents/accused--Trial Court required to hold in its judgment that there existed no sufficient grounds for proceeding against respondents/ accused giving reasons for not summoning as required under section 203 Cr.P.C., which has not been done-Held: Order passed by trial Court was illegal, improper and incorrect hence was set aside-­ Case remanded to trial Court with directions to pass a fresh speaking order in accordance with law-Revision accepted. [Pp. 1671 & 1672] A, B Mehr Tanveer Ahmed Jangla, Advocate, for Petitioner. Mr. Altaf Ibrahim Qurehsi, Advocate for Respondents. Mr. Muhammad Farooq Ibrahim, Advocate, for State. Date of hearing: 5.6.1996. order Manzoor Ahmad petitioner/complainant filed this revision petition under section 435/439 Cr.P.C against the order dated 28.3.1995 by which the learned Addl. Sessions Sahiwal ordered the issuance of bailable warrants of arrest of Allah Ditta, Kali and Sarwar co accused of respondents Ahmad Yar, Alam Sher and Chakar and allegedly did not appreciate the evidence of the petitioner and declined to summon Ahmad Yar, Alam Sher and Chakarrespondents No. 1 to 3. 2. The brief facts which led to the filing of this revision petition, are that petitioner Manzoor Ahmad got registered a case FIR No. 364/94 under sections 302/109, 148/149 PPC at a police station Noor Shah district Sahiwal against respondents No. 1 to 3 and other co-accused namely Allah Ditta, Kali and Sarwar. During the investigation except Ali Sher and Kali, all the accused were declared innocent and being aggrieved, petitioner filed a complaint against the accused named in the FIR and the complaint was entrusted to learned Addl. Sessions Judge who recorded the preliminary evidence of the petitioner/complainant, Dr. Hameed, Bashir Haider, Fareed, Wali Muhammad, Pehlwan, Ghulam Sarwar and Muhammad Ameen Headconstable. At the close of the preliminary evidence, learned Addl. Sessions Judge passed the impugned order on 28.3.1995 and summoned Allah Ditta, Kali and Sarwar only through bailable warrants of arrest to face the charges levelled against them in the complaint. This order was challenged through his petition. 3. Learned counsel for the petitioner argued that all the prosecution witnesses recorded by the Court completely supported the version given in the FIR SLndprima facie there existed a reasonable ground to proceed against respondents Ahmad Yar, Alam Sher and Chakar. 4. Learned counsel for the respondents argued that they were found innocent during the investigation and there is no possibility of the conviction of the petitioners for any offence and the trial against the petitioners would be a sheer wastage of the precious time of the Court. 5. I have heard the learned counsel for the parties and have gone through the record annexed with this petition, 6. To hetter appreciate the contention raised by the parties, the impugned order is reproduced as under: - "Present: Complainant with his counsel. As per cursory statements of Manzoor Ahmed, Dr. Hamid, Bashir Haider, Farced, Wali Muhammad, Pehlwan, Ghulam Sarwar, Muhammad Amin H.C. 767, copy of FIR and other documentary evidence on record, Allah Ditta, Kali and Sarwar are prima facie accused of offence under section 302/34 PPC. Bailable warrants of arrest in the sum of Rs. 30,000.00 each with one surety each in the like amount be issued against them for 13.4.1995. Announced: Dt. 28.3.1995.(ABDUL GHAFFAR KHAN) Addl. Sessions Judge, Sahiwal." 7. The bare reading of the impugned order transpires that learned Addl. Sessions Judge Sahiwal did not at all discussed whether he is summoning the respondents to face trial or has decided to refuse to summon them. Presumably the learned Addl. Sessions Judge has refused to summon the respondents No. 1 to 3 to face the trial but fact remained that he has not given any reason whatsoever for not summoning the respondents to face the trial. He has also not discussed merits of the case tentatively to justify the impugned order qua respondents No. 1 to 3. By no stretch of imagination, the impugned order can be termed as a speaking order. Orders passed under section 203/204 Cr.P.C. are judicial orders which are subject to the scrutiny by the Superior Courts. The learned Addl. Sessions Judge was required under section 203 Cr.P.C. to hold that in his judgment there existed no sufficient grounds for proceedings against respondents No. 1 to 3. in such case, he was required to briefly record his reasons for so doing. Section 203 Cr.P.C. provides:- "203. The Court before whom a complaint is made or to whom it has been transferred, or sent may dismiss the complaint, if after considering the statement on oath (if any) of the complainant and the result of the investigation or inquiry (if any) under section 202, there is in his judgment no sufficient ground for proceeding. In such cases he shall briefly record his reasons for so doing." 8. The learned Addl. Sessions Judge has not given any reason whatsoever for not summing the respondents No. 1 to 3 and he has not described that in his judgment no sufficient grounds for proceedings against the respondents existed. 9. For what has been stated above, it is held that the impugned order dated 28.3.1995 is illegal, improper and incorrect qua respondents No. 1 to 3. The revision petition is accepted and the learned trial Judge is directed to pass & fresh speaking order keeping in view the observations made above and the law on the subject. A copy of this order be immediately transmitted to Mr. Abdul Ghaffar Khan, Addl. Sessions Judge Sahiwal or his successor, for compliance. 10. This petition stands disposed of. (MAA) Revision accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1672 [Cricuvt Court Hyderabad] Present: rana bhagwan das, J. MUREED-Applicant versus GOLO and 8 others-Respondents. Criminal Misc. Application No. 213/1995, decided on 15.8.1996. (i) Bail-Cancellation of- —S. 497(5) read with Pakistan Penal Code, I860, 302/324/337-A/337- F/147/148/149--Bail--Cancellation of-Prayer for-Bail was refused by trial Court in first instance but after lapse of two weeks granted bail while no change in facts and circumstances has occurred-Trial court was not justified and entitled to take different view in such circumstances-­ Only two accused prima facie directly involved in commission of offence falling within prohibitory clause-Bail to their extent was cancelled. [Pp. 1674 & 1675] A & C PLJ 1986 SC 369 ref. (ii) Administration of Justice-- —-Justice with -mercy-For fair play, good conscience and equity demand that where victim or a person prosecuting a remedy on his behalf agrees to a concession by forgiving act of an accused, court should lean in favour of grant of concession by dispensing justice with mercy rather than creating hardships. IP-1675] B Mr. Muhammad Ishaque Khoso, Advocate for Applicant. Mr. ParmanandA. Kanwal, Advocate for Respondents. Mr. Abdul Latif Ansari, A.A.G. for State. Date of hearing: 15.8.1996. order Complainant Mureed in Crime No. 62/1995 registered at Police Station, Badin is aggrieved by the order dated 8.8.1995 passed by learned Sessions Judge, Badin granting bail to respondents Golo and seven others for the offences under sections 302, 324, 337-A, 337-F, 147, 148, 149 PPC culminating in the murder of deceased Muhammad and injuries to complainant Mureed, P.W. Meenh Wassayo, Mst. Phapoo and Mst. Haleema. By an earlier order dated 23.7.1995 learned Sessions Judge had declined bail to these accused in the same crime on same evidence. 2. Facts of the case in brief are that on 23.6.1996 complainant Mureed and his brother Meenh Wassayo, his nephews Muhammad and Dodo after opening water course for irrigation of their lands returned their home at about 6.30 p.m. When near the houses of the parties at Haita Bus Stand respondents assaulted them. It is alleged that respondent Jumo was armed with a gun, respondent Mamoon was carrying a revolver while the remaining persons were armed with hatchets and lathies. It is said that accused Hamir dealt a hatchet blow to deceased Muhammad on his left side head, respondent Ali Muhammad caused hatchet blow to complainant Mureed, respondent Muhammad S/o Billo dealt a hatchet below to Meenh Wassyo, respondent Pandhi dealt a hatchet blow to Mst. Haleema (mother of the deceased) whereas respondent Mamoon caused fire-arm injuries to Mst. Phapoo. Deceased Muhammad while in injured condition was removed to Civil Hospital Badin where he succumbed to the fatal hatchet wound the next day. While this report was lodged at Police Station at 9.00 p.m. respondent Hamir filed a counter-report at 9.30 p.m. against Mureed, Achar, Muhammad Siddique, Umer and Dodo. It was alleged in the counter FIR that the incident was preceded by exchange of hot words between the parties whereupon Meenh Wassayo fired from his gun at Ali Muhammad who sustained as many as 12 fire-arm injuries on his person. It was alleged that Hamir, Muhammad S/o Bilo as well as Dodo also sustained fire-arm injuries on their persons. It was admitted in this FIR that Hamir and others being armed with hatchets and lathies, Mureed, Muhammad, Dodo and two ladies had also sustained injuries on their persons in the incident. 3. Earlier application for bail moved by the present respondents as well as an application moved by Mureed and Achar after hearing were rejected by a common order dated 23.7.1995 by the learned Sessions Judge but the said order was not impugned by any of the parties. 4. It is stated at the bar that after a lapse of four days on 27.7.1995 respondents moved second application for bail which was granted by learned Sessions Judge vide order dated 8.8.1995 which has been impugned in this application. 5. It is the grievance of the applicant that learned Sessions Judge having refused bail to the respondents on same set of facts and circumstances acted illegally and in derogation the of the settled principles of law by exercising the discretion for grant of bail in favour of the respondents only after a lapse of fifteen days. Reliance is placed on Supreme Court judgment in the case of State v. Zuabir and 4 others (PLJ 1986 S.C. 369). In this case Hon'ble Supreme Court apart from laying down other principles for the grant or refusal of bail held that the second bail application to the same Court shall lie only on a fresh ground, namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application. 6. There is no cavil with the factual aspect that there was no change in the circumstances of the case except that the injured persons had been discharged from the Hospital when the second bail application was granted by the learned Sessions Judge. It is, however, admitted that final Medico Legal Certificates were issued on 18th October, 1995 long after the grant of bail. 7. Learned counsel for the respondents was at pains to distinguish the facts leading to the grant of bail and supporting the impugned order by saying that in the earlier order, learned Sessions Judge had made observations that the final Medico Legal Certificates being not issued, the application for bail was premature but there is hardly any substance in this submission as the said certificates were issued more than two months after the grant of bail. 8. Learned counsel also contended that in view of serious and numerous fire-arm wounds caused to accused respondent Ali Muhammad at the hands of complainant party and there being counter versions of the incident learned Sessions Judge was justified in exercising the discretion in favour of the respondents but he had no answer to the proposition of law laid down by their lordships of the Supreme Court in Zubair's case. Since the learned Sessions Judge found no merit in the grounds urged on the earlier occasion strictly speaking he was not justified and entitled to take a different view just after a lapse of two weeks and pass an order contrary to the earlier order. 9. It was lastly urged that the earlier order being wrong and incorrect on the facts of the case, respondents should not be deprived of the concession of bail rightly exercised in their favour. There is no merit in this submission. No exception was taken to this order by the respondents before, which remained intact and held the field. A perusal of the impugned order however tends to show that learned State counsel had conceded to the grant of bail before the Sessions Judge in favour of respondents Golo, Muhammad, Pandhi, Jumo and Dodo. In view of the part played by them in the commission of the crime, learned counsel for the applicant does not press the cancellation of bail in so far as these five respondents are concerned. Learned A.A.G. however does not support the grant of bail to them for the reason that these respondents would be liable for their act by operation of section 149 PPC. I am not inclined to agree with the learned AAG in this particular case for fair play, good conscience and equity demand that where the victim or a person prosecuting a remedy on his behalf agrees to a concession by forgiving the act of an accused, the Court should lean in favour of grant of concession by dispensing justice with mercy rather than creating hardships. 10. For the aforesaid facts and reasons bail granted to respondents Hamir, mammon and Ali Muhammad is cancelled as they are prima facie directly involved in the commission of the offences falling within prohibition clause. They shall be taken into custody and remanded to jail. (MAA) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1675 Present: RASHEED A. RAZVI, J. MUHAMMAD ASLAM-Applicant versus STATE-Respondent Crl. Bail Application No. 880 of 1996 accepted on 11.7.1996. (i) Bail- —-S. 497 Cr.P.C.--Bail-Grant of-Prayer for--Offence U/S. 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979-Whether applicant falls within definition of desperate, dangerous or hardened criminal-Question of-Simply mention of four or five F.I.Rs. does not bring applicant within definition of hardened, desperate and dangerous criminal or terrorist-Registration of cases was not sufficient to sustain the opinion that applicant was criminal of categories as mentioned in fourth proviso-Held: Applicant does not fall in any of categories as mentioned in fourth proviso to section 497(1) Cr.P.C. namely, hardened, desperate or dangerous criminal or terrorist—Application accepted. [Pp. 1677, 1678 & 1679] A, B, C & E (ii) Bail-Statutory Delay- —-S. 497 (i) Cr.P.C.-Burden upon an accused person seeking bail on ground of statutory delay as provided in Third Proviso is to the extent to show that required period has expired and that trial has not concluded-He is required to show that such delay was not caused by his acts or by act of his representatives which includes his advocate-To disentitle an accused person for purpose of availing privileges of third proviso to S. 497(1) Cr.P.C. burden is upon prosecution to show that such accused falls within any of categories as mentioned in fourth proviso-Such burden can be discharged by placing sufficient material before court for purpose of forming an opinion. [P. 1678] D Mr. Abdul Jabbar Qureshi, Advocate, For Applicant. Mr. Hassan Inamullah, Advocate, for State. Date of hearing: 11.7.1996. order Applicant/accused is facing trial alongwith other co-accused namely Muhammad Waseem son of Aleemuddin, before the Court of IVth Additional Sessions Judge, Karachi East, in Crime No. 5/1995 of P.S. Tipu Sultan, Karachi East, under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979. On 4.1.1995 at about 1045 hours complainant Ghulam Mehdi who, by profession is driver, lodged an F.I.R. with Tipu Sultan Police Station, District East, Karachi alleging that on 28.12.1995 at about 1615 hours when, after dropping Begum Sahiba at Shara-e-Faisal near Duty Free Shop, he was parking his car, there appeared two young boys who snatched keys of the car from him and drove towards the Airport. It is further alleged by the said complainant that since those two persons were having arms, he did not raise any hue and cry. That he was constantly searching for the stolen car till lodging of the F.I.R. but since it was not traceable, he has come and has lodged the said F.I.R. Counsel for the accused has pressed this bail application on the merits as well as on the ground of statutory delay of more than one year. It is argued by Mr. Abdul Jabbar Qureshi, Advocate for accused that the present accused was arrested on 28.12.1994 and that after his arrest, the present F.I.R. was lodged on 4.1.1995 which clearly reflects mala fides of the prosecution. He has further contended that no identification test/parade was held nor any incriminating article was recovered from the present applicant/accused. That the co-accused namely Muhammad Waseem has been granted bail by the Trial Court. On the ground of statutory delay, he has taken me through the diary sheets which he has filed alongwith bail application to show that from 27.3.1995 when the charge sheet was filed before the Sessions Judge, Karachi East, till 13-6.1996 (for nearly 16 months) present accused was never produced before the trial Court. He has referred to the case ofMoundar and others v. The State (PLD 1990 S.C. 934) and the case of Mumtaz All v. The State (1991 PCr.L.J. 734). Learned counsel appearing for the State has vehemently opposed this bail application. He has contended that the accused applicant is not entitled for bail on the grounds of statutory delay as he is involved in four other offences of identical nature which is sufficient to bring the accused within the definition of hardened, desperate and habitual criminal or a terrorist. On the merits of the case, it is argued by the learned counsel for the State that at the pointation of the present accused four motor vehicles were recovered from the parking place of Quaid-e-Azam International Ail-port which fully establishes the prosecution case. During hearing of his bail application before the trial Court, report was called from the Superintendent District Jail Jacobabad which the accused has filed as Annexure "C" with his bail application. It reads as follows:- "With reference to honourable Court letter No. Nil dated 21.3.1996, on the subject noted above, I have the honour to submit that under-trial Prisoner Aslam son of Ismail Abbasi, was received on transfer from Central Prison Karachi to this Jail on 01-06-1995 on Administrative grounds. He is involved in the following cases pending against him. 1. U/S. 13-D A.O. Crime No. 53/95 P.S. Airport, J.M. Malir, Karachi. 2. U/S. 324 QDO Crime No. 52/95 P.S. Airport, A.D.J Malir, Karachi. 3. U/S. 20 EHO Crime No. 5/95 P.S. Tipu Sultan, IV- ADJ East, Karachi. 4. U/S 14 EHO Crime No. 41/95 P.S. Aziz Bhatti, F.C.M. East, Karachi. The above cases will be tried inside the Jail at Central Prison, Sukkur, as per ordered by the Government Sindh Home Department Karachi vide Government Notification No. SO (PRS-II) HD/-6-14/95 dated. 07.6.1995. However inside the Jail his conduct/behaviour is satisfactory." Except the above reported which has been filed by the accused, no other material such as F.I.R., charge sheet, 161 Cr.P.C. statements recorded in the cases as mentioned in the report of Superintendent District Jail Jacobabad was placed before this Court. It is pertinent to note that on 20.6.1996 this Court directed the State counsel to ascertain antecedents and character from the jail authorities. It is vehemently argued by the Advocate for the accused that simply mention of four or five F.I.Rs does not bring the applicant within the definition of hardened, desperate and dangerous criminal or terrorist. He has relied upon the case ofMoundar and others vs. The State (PLD 1990 S.C. 934). In this reported case a Full bench of Hon'ble Supreme Court of Pakistan has interpreted and defined in detail the third and fourth provisos to section 497(1) Cr.P.C. In this reported case appellants were involved in seven or eight cases and majority of them (the appellants) were acquitted. Reference was made to the case of Gul Muhammad v. The State (1987 P.Cr.L.J 737). It was argued that mere registration of cases was not, in the circumstances of the case, sufficient to sustain the opinion formed by the Court below that the appellants were criminals of the categories as mentioned in the fourth proviso. It was observed by the Hon'ble Supreme Court that such argument has considerable force and that the learned Judge in the High Court did not fully examine the nature of cases, the facts involved and the result thereof, before placing reliance on the mere factum of registration of cases as sufficient for the purpose of requisite opinion under the fourth proviso to section 497(1) Cr.P.C. The rule laid down in the case of Moundar was reiterated by another Full Bench of Hon'ble Supreme Court in the case ofJalal v. Allah Yar and another 1990 (S.C.M.R. 525). Mr. Hassan Inamullah has referred to the case afMumtazAli v. The State (1991 P.Cr.L.J. 734) to support his contention that while determining whether an applicant falls within the definition of desperate, dangerous or hardened criminal, the Courts have to take into account the following considerations:- "(i) nature of accusation and conduct of accused at the time of alleged incident, (ii) previous record of the accused which may include his earlier prosecution, (iii) the material before the trial Court and with the Investigating Agency and also the reports of police and jail authorities. It is the cumulative effect of all these aspects by which the Court can determine such tentative opinion in this behalf." The above quoted view was also held earlier by another single Judge of this Court Mr. Qaiser Ahmed Hamidi, J. (as he then was) in the case of Juma v. The State (PLJ 1989 Criminal Cases 257). Recently, Hon'ble Supreme Court in the case of Zahid Hussain Shah v. The State (PLD 1995 S.C. 49) has again held that the right of an accused to be enlarged on bail under the third proviso to section 497(1) Cr.P.C. is a statutory right which cannot be denied under the discretionary power of the Court to grant bail. This view was held after following the cases of Wazir Khan vs. The State (1983 S.C.M.R. 427) and Nazir Hussain v. Zia-ul-Haq (1973 S.C.M.R. 72). The burden upon an accused person seeking bail on the ground of statutory delay as provided in Third Proviso is to the extent to show that the required period has expired and that the trial has not concluded. He is required to show that such delay was not caused by his acts or by the acts of his representative which includes his advocate. To disentitle an accused person for the purpose of availing privileges of third proviso to section 497(1) Cr.P.C., the burden is upon the prosecution to show that such accused falls within any of the categories as mentioned in fourth proviso. Such burden can be discharged by placing sufficient material before the Court for the purpose of forming an opinion. (For reference see the cases of Muhammad Hanif v. The State (PLD 1986 Karachi 437). Gul Khan and others v. The State (PLD 1986 Karachi 629). Wazir Ali and others v. The State (PLJ 1987 Criminal Cases 28) and Nazar Muhammad and two others v. T'he State (PLJ 1987 Criminal Cases 412). I have gone through the entire police file with the assistance of learned counsel appearing for the State. In order, not to prejudice the case of either party, I would like to refrain from commenting on the merits of this case as well as other cases in which the present applicant/accused is involved but would like to observe that the present applicant/accused does not fall in any of the categories as mentioned in fourth proviso to section 497(1) Cr.P.C., namely, hardened, desperate or dangerous criminal or terrorist. Result of the above discussion is that this bail application is granted. Accused Muhammad Aslam shall be released upon furnishing one solvent surety in the sum of Rs. 100,000/- (Rupees one lac) with P.R. bond in the like amount to the satisfaction of the learned trial Court. (K.K.F.) Application accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1679 [DB] [Circuit Court Hyderabad] Present: rasheed A. razvi and shah nawaz awan, J. HAJJAN SHAH-Appellant versus THE STATE-Respondent Criminal Appeals No. 12/1994 and 13/1994, accepted on 23.1.1996. (i) Administration of Justice- —Administration of Justice-If prosecution witnesses are discredited in respect of majority of accused, it is never treated to be safe to believe their evidence in respect of other accused unless there is some independent and strong corroboration. [P. 1682] A (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —S. 302-Conviction for-Challenge to-Un-seen occurrence-Neither names of accused nor of PWs mentioned in F.I.R.-After 4 days of alleged incident PWs. informed complainant about emergence of appellant other co-accused from Deri Bushes (site of occurrence)-Trial Court disbelieving PWs. to the extent of other two co-accused acquitting them but on same evidence convicting appellant-Held: Last un-seen evidence is weak type of evidence to sustain conviction unless independently and strongly corroborated-If on same set of evidence one accused is acquitted then on same evidence other accused cannot be convicted unless such evidence is distinguishable-Sentence set aside-Appeal accepted. [Pp. 1682 & 1683] B, C & D 1991 SCMR 1601, 1991 SCMR 2220, PLD 1959 S.C. (Pak.) 109, 1989 SCMR 438, PLD 1959 SC 480, PLD 1993 SC 251, 1988 SCMR 940, PLD 1985 SC 11, 1985 PCr.LJ 1329,1994 SCMR 108,1994 SCMR 1148,1994 SCMR 1157 ref. (iii) West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —S. 13-D read with S. 302 of Pakistan Penal Code, 1860-Recovery of klashnikov at the pointation of accused-PW-1 not from same locality and admittedly closely related to deceased-No proper and effective efforts made to pick-up independent and respectable persons from locality despite such opportunity was available-Other mashir a police officer of ^ame police station-No explanation available on record for nonfiance of S. 103 Cr.P.C.-Prosecution has failed to prove its case beyond reasonable doubt-Sentence/Conviction set-aside-Appeal accepted. [Pp. 1684 & 1685] E & F PLJ 1996 SC 396 and PLJ 1996 SC 1323. Syed Madadally Shah, Advocate, for Appellant. Mr. Abdul Latif Ansari, A.A.G. Complainant Syed Maqbool Shah, present in Person. Dates of hearing: 22, 23 Jan. 1996. judgment Rasheed A, Razvi, J.--We intend to dispose of both the appeals by this common order °,ince the facts and Law involved are similar and identical. 2. Through the Judgment in Cr.A. 12/94 the appellant, namely, Hajjan Shah was convicted and was sentenced by the Special Court No. II (STA) Hyderabad, to suffer imprisonment for life for an offence allegedly committed under section 302 P.P.C. registered vide F.I.R. No. 60/92 P.S. Jam Shoro while the other two co-accused, namely, Ali Raza Shah and Anwar Shah were acquitted under section 245 Cr.P.C. by the trial Court after extending them benefit of doubt. The present appellant was also directed to pay compensation of Rs. 60,000/- to the heirs of deceased Satabo Shah or in default to undergo further R.I. for six months. 3. In Cr.A. No. 13/94 the appellant was convicted again by the same trial court and was sentenced for 7 (seven) years R.I. and to pay a fine of Rs. 5,000/- or in default to further suffer R.I. for 6 (six) months for the offence under section 13-D, Arms Ordinance, 1965. 4. According to the F.I.R. which was lodged by complainant V aqbool Shah (now present in Court) on 21.5.1992 at about 12.30 p.m. with Police Station Jam Shoro, it is alleged that the complainant and his younger brother, namely Satabo Shah were residing in Village Bhirya near Jam Shoro Railway Crossing. That on 19.5.1992 at about 11.00 p.m. his brother Satabo Shah went to look after the cattle. That after about half an hour the complainant heard sound of firing. On the next morning the complainant made inquiries about his brother but he was not traceable. Therefore, the complainant presumed that his brother might have gone for some work. On 21.5.1992 at about 10.00 a.m. the complainant's cousin, namely, Waris Shah found the dead body of Satabo Shah lying in the Forest of Devis (DEVI JUNGLE). It is further stated in the F.I.R. that the complainant went to the place of wardat with Waris Shah and saw the fire arm injuries on the stomach of his deceased brother and also noticed that both hands of deceased were court off. Accordingly, the complainant went to the Police Station and lodged F.I.R. under section 302 PPC against the unknown persons. 5. On 8.6.1992 the present appellant/accused was arrested from Kotri Suzuki Stand, Jam Shoro in presence of mashirs Budhal Shah and Allah Bux Shah. On 17th June, 1992 after interrogation the appellant Hajjan voluntarily led the Police party to an abandoned house near Jam Shoro Railway Crossing from where after digging earth, one Klashinkov, two magazines containing 7 and 15 live bullets were recovered. Accordingly, a separate case under section 13-D of the Arms Ordinance, 1965 against appellant, Hajjan Shah was registered which is now subject-matter of Criminal Appeal No. 13/94. The complainant has also filed a private complaint before the trial Court against appellant Hajjan Shah as well as against other two co-accused on 1.9.1992. The Trial Court conducted a preliminary inquiry and three witnesses were examined. Thereafter, the learned trial Court registered the case under section 302/34 PPC on 13.9.1992. However, on 2.2.1993 the trial Court on the joint application moved by the Defence Counsel and the Counsel for the complainant ordered for the amalgamation and consolidation of the direct complaint with the State case. Accordingly, charge was framed and prosecution had examined eight witnesses in support of the charge. Accused were examined under section 342 Cr.P.C. who all denied commission of the alleged offence as well as recovery of arms. Appellant Hajjan Shah was also examined on oath. Defence have also examined three witnesses. On 6th January, 1994 both the impugned judgments were an ounced and the present appellant was convicted and the other two co-accused were acquitted. 6. We have heard Mr. Syed Madadally Shah, Advocate for the appellant, Mr. Abdul Latif Ansari, Assistant Advocate General Sindh and have also heard the complainant. We have also perused paper book of the case. It is contended by Mr. Syed Madadally Shah, that the alleged crime is an unseen incident and therefore, the prosecution was under heavy burden to bring home guilt of the accused beyond reasonable doubt. He has also stated that name of the present appellant was not mentioned in the FIR and it was at very belated stage that such accused were implicated in the alleged offence. Mr. Shah has referred to the case oflsrar u. The State (1994 SCMR 108), Muhammad Yousuf v. The State (1994 SCMR 1148), Bashir Ahmed and others v. All Muhammad and others (1994 SCMR 1157) in support of his contention that where benefit of doubt is extended to the acquitted coaccused then in absence of strong, reliable and corroborative evidence, the other accused is not liable to be convicted. That he is also entitled for the benefit of doubt. Learned Assistant Advocate General as well as the complainant have wholeheartedly supported the impugned conviction order. 1. It is settled principle of the administration of justice that if the prosecution witnesses are discredited in respect of majority of accused, it is never treated to be safe to believe their evidence in respect of other accused unless there is some independent and strong corroboration. Therefore, it can be said that if on the same set of evidence one accused is acquitted then on the same evidence the other co-accused cannot be convicted unless such evidence is distinguishable. In the case of Feroze Khan v, Fateh Khan and 2 others (1991 SCMR 2220), identical plea was raised before the Hon'ble Supreme Court which was accepted by the Supreme Court in the following words:- ".... But, as further contended by him, the first mentioned set of accused was acquitted on account of extension of benefit of doubt, therefore, the remaining accused cannot be convicted on the basis of the testimony of the same witnesses. The propositions seems to be correct. See (i) Sher Hassan v. The State PLD 1959 SC 480 and (ii) Sadaruzzaman v. The State 1990 SCMR 1277." For further reference, see the cases of; (1) Rehmat and others v. The State (PLD 1959 S.C. (Pak.) 109); (2) Noor Ahmad Alias Gujjarv. The State (1989 SCMR 438); (3) Sher Hassan v. The State (PLD 1959 S.C. 480); (4) Munawar Mi v. The State (PLD 1993 S.C. 251); (5) Muhammad Aslam and others v. The State (1988 SCMR 940); (6) Ghulam Sikandar and another v. Mamraz Khan and others (PLD 1985 S.C. 11); and (7) Syed Gulzar Hussain v. The State (1985 P.Cr.L.J. 1329). 8. It is an admitted position that the name of the present appellant as well as the names of to other acquitted co-accused were not mentioned in the F.I.R. On the contrary it was claimed by the complainant that some unknown persons have killed Satabo Shah. Even during investigation when P.W. Waris Shah, Paryal Shah and Miskeen Shah were examined under section 161 Cr.P.C. by the Investigating Officer they had not stated anything about the present appellant which fact was admitted by the Investigating Officer, Allah Ditto, in his evidence, it is also proved fact that the names of P.W. Naseer Ahmed Sehto and P.W. Hussain Bux were never mentioned before the Investigating Officer either by the complainant or the other three P.Ws. as mentioned hereinabove. For the first time on 23.5.1992, (after 4 days of alleged incident) the complainant was informed by P.Ws. Naseer Ahmed and Hussain Bux that on the date of incident they have seen the present appellant and the other two co-accused emerging from the Devi Bushes who were armed with deadly weapons. Except this piece of evidence there is no other evidence against the appellant. The learned trial Court has disbelieved prosecution evidence against the two acquitted co-accused and convicted the present appellant on the grounds that a Klashinkov was recovered at the pointation of this appellant. The learned trial Court has appreciated the prosecution evidence in the following words:- "Once the testimony of P.Ws. Naseer Ahmed and Hussain Bux becomes doubtful, we are left with no other evidence against the accused Anwar Shah and Ali Raza Shah. Complainant Maqbool Shah, in his subsequent Direct Complaint, has only tried to corroborate the version as given by P.Ws. Naseer Ahmed and Hussain Bux (and P.W. Sanjar Shah who was not examined by prosecution). It is most significant that the complainant owned his FIR, and he never questioned the veracity of investigation. Throughout, the complainant never alleged any mala fides on the part of investigation agencies, in challanging only accused Hajjan Shah, and not implicating the accused Ali Raza Shah and Anwar Shah. According to complainant party, there was no apparent enmity between accused and deceased Satabo Shah. Therefore in my view there is no reliable evidence against accused Ali Raza Shah and Anwar Shah. So far as the case of accused Hajjan Shah is concerned, I find that accused Hajjan Shah was the only person who was arrested by police as being the culprit, and was subsequently challaned before this Court. During interrogation he voluntarily led the police and mashirs, to produce the weapon which was used by him in commission of murder of Satabo Shah." 9. The "last seen" evidence is always treated as weak piece of evidence by this Court to sustain a conviction unless it is independently and strongly corroborated. This question was considered by the Hon'ble Supreme Court in the case of Munawar Hussain alias Asghar Ali v. The State (1991 SCMR 1601) where the appellant was convicted to imprisonment for life by the trial Court. His appeal was dismissed by the learned Judge of the Lahore High Court against which he preferred leave petition before the Supreme Court which was granted. His appeal was allowed and he was set at liberty with the following observation:- "It is well-established law regarding the "last seen" evidence, that normally it requires corroboration. Reference may be made In re: Karamatullah Khan PLD 1972 SC 15; Nazo alias Ali Nawaz v. The State 1977 SCMR 20; Rehmat alias Waryam alias Badshah v. The State PLD 1977 S.C. 515. The circumstance of last seen was not even put to the appellant when he was examined under section 342, Cr.P.C. After hearing the learned counsel for the parties we are of the view that the conviction of the appellant in the circumstances cannot be maintained ...." 10. As far as recovery of Klashinkov is concerned, it argued that one mashir PW-1 Budhal Shah is not the person from the same locality and that he has admitted in his cross examination that he is closely related to the deceased and to the complainant. This witness has further admitted that the area from where the alleged recovery was effected is a thickly populated area consisting of several shops, hotels and houses. The second mashir P.W-2 Allahditto is Sub-Inspector Police and on the date of alleged recovery was posted at the same police station as Additional S.H.O. In the background of these facts, we are of the considered view that the prosecution has not made proper and effective efforts to pick up the independent and respectable persons as mashirs of recovery from the same locality despite the fact that such opportunity was available. The burden was upon the prosecution to show that what were the circumstances which compelled them to choose these mashirs, one of whom is closely related to the deceased and the complainant while the other mashir is a police officer posted in the same police station. No explanation is available on record for non compliance of section 103 Cr.P.C. which creates doubts in the alleged recovery of weapon at the instance of accused. We are fortified in our view by the case of Muhammad Azam v. The State (PLJ 1996 SC 396) = (PLD 1996 S.C. 67) and the case of Mushtaq Ahmad v. The State (PLJ 1996 S.C. 1323). In the last reported case, the Full Bench of the Hon'ble Supreme Court accepted the appeal of a convict and set aside the conviction/sentence passed by a Special Court, S.T.A. on the following ground, inter alia:- ".... Keeping in view the above factual background and also the factum that Iftikhar Ahmad, DSP (PW. 3), who headed the raiding party, admitted that people from the locality had gathered at the Dera at the time of their raid, noncompliance with the requirement of Section 103 Cr.P.C., namely to call two or more respectable inhabitants of the locality where the search was to be made as witnesses to the recovery was not warranted and justified applying the a legal principles are deduced from the case law. Since the recoveries of the alleged Kalashinkov and the handgrenade constituted the alleged offences, which were the subject matter of the two trials, the trial court and the High Court should have appraised and scrutinised the evidence of the aforesaid police personnel with care and caution and should also have taken into consideration the factum that there was no justifiable reason not to comply with the above requirement of section 103 Cr.P.C ............................... " In view of the above discussion of facts and law, we are of the considered view that the prosecution has failed to prove charge beyond reasonable doubt and that the present appellant is also entitled for the benefit of doubt as extended by the learned trial Court to the other two accused. In these circumstances, we allow both these appeals, set aside the conviction/sentence and acquit the appellant. (MAA) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1685 [Circuit Court Hyderabad] Present: All muhammad baloch, J. PATASHO-Applicant versus THE STATE--Respondent Criminal Revision No. 46/1992, accepted on 28.7.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —S. 435/439--Criminal Revision-Recovery of Liquor-Recovery affected from thickly populated town near Bus Stop—No efforts made to secure independent mas/z/rs-Recovery affected on 29.6.1989 and despatched to Chemical Examiner on 5.7.1989 but was received by Chemical Examiner on 19.8.1991, i.e. after two years-Un-explained inordinate delay in despatching sample for Chemical Examiners report was held to be doubtful-Benefit of doubt given to accused and was acquitted-Revision accepted. [P. 1686] A, B 1986 P.Cr.L.J 1728, PLD 1988 Kar. 521 and PLJ 1996 Kar. 1154 ref. Mr. Allah Bachayo Soomro, Advocate, for Applicant. Mr. Mukhtar Ahmad Khanzada, Advocate, for State. judgment This is a criminal revision by applicant Patasho Khaskheli who was convicted by the Court of Civil Judge & F.C.M., Sakrand on the allegation of being found in possession of 54 liters of alcohol which was recovered from him when he was alighting from a bus in Sakrand town. The learned Civil Judge & F.C.M. Sakrand had convicted the applicant to undergo simple imprisonment for one year in addition to payment of Rs. 2,000/-. In default of payment of fine imprisonment for two months was ordered. Against this conviction, the applicant had filed an appeal before Sessions Judge Nawabshah and in this appeal the conviction awarded to the applicant by the trial court was maintained. This criminal revision challenging these two judgments was filed in this court and it was admitted on 14.9.1992 for regular hearing. The points raised in this revision at the time of admission, which were found worth consideration were that provisions of Section 103 Cr.P.C. have been violated in this case as the alleged recovery was from a thickly populated town, near a Bus Stand during day time but the police made no efforts to secure the presence of an independent mashir. The second point for consideration which was raised at the time of admission was that the alleged alcohol was recovered on 29.6.1989 and a sample thereof was despatched for the opinion of the Chemical Examiner on 5.7.1989 while the same was received in the office of Chemical Examiner's Laboratory at Sukkur on 19.8.1991 Le. after about two years two months and two days. This inordinate delay in despatching the sample for the report of Chemical Examiner was fatal to the prosecution as was argued at the time of admission. The other points raised by the learned counsel for the appellant were on factual side about believing or disbelieving the evidence of the witnesses. Since this is a revision and there are concurrent findings of the two courts below on factual sides, these factual findings need not be opened again at this stage. However, the point of sending the sample of the Liquor for examination to the Chemical Examiner has attracted my attention. It has been held in several authorities that the delay in sending the material for the examination of the Chemical Examiner if not explained, would be fatal to the prosecution case as the opinion of the expert looses its value. In this case the applicant has been denying from the very beginning that he was not found in possession of any intoxicant liquor and that the bottles of the alleged liquor have been foisted on him. In the case of Mst. Fahmida Begum and another v. The State decided by Federal Shariat Court (1986 P.Cr.L.J. 1728) it was found that the parcels delivered in the office of Chemical Examiner were uncounted for, for a period of three months and therefore the report of the Chemical Examiner was held doubtful. In the case of Wazir v. The State (PLJ 1996 Kar. 1154 = (P.L.D. 1996 Karachi 240) the unexplained delay in sending the parcel to the Chemical Examiner after lapse of four months, was found fatal to the prosecution case. On the same analogy yet in another case otYousufv. The State (P.L.D. 1988 Karachi 521) inordinate delay in sending the parcels for the opinion of Ballistic Expert were found fatal to the prosecution. In these circumstances the delay of more than two years in sending the samples to the Chemical Examiner has not been explained and therefore I find report of the Chemical Examiner in this case to be doubtful. In the report of the Chemical Examiner has been found doubtful in this case, the benefit of doubt case by conveniently given to the applicant/accused. The trial court as well as the appellate court have erred in not considering this very important flaw in the prosecution evidence and therefore both the judgment under revision cannot be sustained. The result is that this criminal revision is allowed, the judgments of the trial court as well as the appellate court are set-aside and the applicant is acquitted from the charge. The applicant is on bail, his bail bond stands discharged. (MAA) Revision accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1687 Present: jawaid nawaz khan gandapur, J. MIR SALEEM-Applicant versus THE STATE-Respondent Criminal Misc. Bail Application No. 663 of 1996, accepted on 31.8.1996. Bail- —S. 497 of Cr.P.C. read with Ss. 302/324/34 of Pakistan Penal Code--Bail-- Grant of--Prayer for--F.I.R. lodged by S.H.O. without naming assailants and witnesses-Except version of S.H.O. nothing on file to show that prosecution witness (simply injured) was unconscious and was unable to lodge F.I.R.-Cross-case stand already registered-Accused of cross-case declared proclaimed offenders, so it w.as difficult to determine who was aggressor—Held: Admittedly, it is un-seen occurrence—A mysterious case--Prima facie, reasonable ground do not exist to believe that petitioner connected with commission of crime—A case of further inquiry- Bail allowed. [P. 1691] A & Mr. Dost Muhammad Khan, M. Sardar Khan and Assadullah Chamkani, Advocate for Applicant. Messrs Abdul Rauf Gandapur and Tariq Pervez, Advocates for State. Date of hearing: 24.8.1996. judgment Faridullah, S.H.O., Police Station Ghoriwala, District Bannu, was conducting investigations on 3.2.1996, inside the Police Station, in respect of murder case, registered under sections 302/324/34 P.P.C. vide F.I.R. No. 52 dated 3.3.1996 when at about 17.00 hours he was informed that the dead body of Faizullah son of Haq Nawaz was lying in the fields of Muhammad Ali Jan and that another person namely Ghazi Marjan son of Bakhtawar, was also lying there unconscious/injured. 2. Resultantly the S.H.O. rushed to the scene of occurrence. He found the dead body and the injured lying there on the spot. The S.H.O. tried to trace out the heirs/relations of the deceased (Faizullah) as well as the injured (Ghazi Marjan) but failed to get the requisite information. No body was ready to come in the lime light to lodge the report regarding the alleged occurrence. The S.H.O., after preparing the inquest report of the deceased despatched his corpse to the Civil Hospital, Bannu for Post Mortem Examination. The injured was also sent to the hospital for treatment under the escort of F.C. Fida Muhammad (No. 790) and F.C. Saadullah (No. 226). 3. Since no body came forward to lodge the report therefore the S.H.O., who was of the opinion that the occurrence had taken place because of the cross-case, (registered U/S 302/324/34 P.P.C. vide F.I.R. No. 52) scribed the murasila and sent the same to Police Station through D.F.C. Noor Aslam (No. 510). In consequence thereof F.I.R. No. 53 was registered U/Ss. 302/324/34 P.P.C. It may be mentioned here that the petitioners were not charged, by name, in the murasila /F.I.R. for killing Faizullah and injuring Ghazi Marjan. In fact no body was even named in the F.I.R. for the commission of the crime. 4. On the next day i.e., 4.2.1996 statement of Mushke Alam, a close relative of the deceased and the injured, was recorded U/S 161 Cr. P.C. It was he who for the first time charged the petitioners and their co-accused Muhammad Ali Jan (since released on bail) for committing the murder of Faizullah and injuring Ghazi Marjan. The present case was thus set up as a cross case to the case registered vide F.I.R. No. 52. Later, on the same day, the statement of Ghazi Marjan injured was also recorded by the S.H.O. who supported the version of P.W. Muskhe Alam, in substance. Needless to mention that the statement of P.W. Mushke Alam was also recorded U/S 164 Cr. P.C.. Hence the petitioners and co-accused Muhammad Ali Jan stood charged with the commission of offences punishable U/S 302/ 324/34 P.P.C. 5. Accused Mir Salam Jan alias Titak (petitioner No. 1) and Muhammad Ali Jan (now on bail) obtained pre-arrest interim bail from the court of the Sessions Judge, Bannu. However, before its confirmation or otherwise, the application for pre-arrest bail was withdrawn by the petitioners, on 28.3.1996, on the grounds that they had been adjudged innocent by the Investigation Officer. 6. On 2.6.1996, the petitioners alongwith Muhammad Ali Jan (now on bail) were arrested. The petitioners and their co-accused Muhammad Ali Jan applied for bail to the Special Court, Bannu which by its order dated 11.7.1996, while granting bail to co-accused Muhammad Ali Jan, refused to release the petitioners on bail. Hence this petition. 7. Mr. Muhammad Sardar Khan, Advocate, learned counsel for the petitioners assisted by Mr. Dost Muhammad Khan Advocate and Mr. Asadullah Khan Chamkani Advocate, Mr. Abdur Rauf Khan Gandapvir Advocate, learned counsel for the State assisted by Mr. Tariq Pervez Advocate, learned counsel for the complainant present and heard. Record of the case perused with some degree of care. 8. The learned counsel for the petitioners submitted at the outset that the petitioners are innocent and have been falsely implicated in the case inasmuch as no body had seen them committing the alleged crime. According to him, in point of fact, the occurrence was not witnessed by any body and it was for this reason that no body came forward to lodge F.I.R. He ontended that the case in hand is a case of "no evidence" and thus the petitioners are entitled to get bail. He further contended that the S.H.O. was admittedly informed by some "unknown person" about the presence of the dead body of Faizullah as well as Ghazi Marjan injured/unconscious lying at the post but the identity of that "person" has not been disclosed uptil now. According to him it was after the S.H.O. had failed to persuade any body to come forward and lodge the report about the occurrence, he took upon himself to draft the murasila and send the same to the Police Station where, on its basis, F.I.R. No. 53 was duly registered. He further submitted that a perusal of the murasila as well a the F.I.R. would show that since the petitioners were not charged therein for committing the offence and therefore, the Investigating Officer, realising that it would be extremely difficult to point out the real culprits, in consultation/collusion with the complainant party, procured the services of P.W. Mushke Alam, a close relative of the deceased/injured, and prompted him to charge the petitioners for committing the crime. He further argued that the Investigating Officer on the next day recorded the Statement of Ghazi Marjan (injured) U/S 161 Cr.P.C. which, in substance, corroborated the testimony of P.W. Mushke Alam and that this was done purposely/dishonestly to lend support to the prosecution version. The learned counsel for the petitioners vehemently argued that the entire procedure adopted by the Investigating Officer/ complainant, would clearly shows that the case against the petitioners has been cooked up. He further submitted that there was nothing on the file to suggest, even remotely, that the petitioners have committed the offences with which they have been charged and that their case is that of further enquiry. According to petitioners' counsel this important fact was kept out of consideration by the Subordinate Judge while deciding the bail petition and in doing so has failed to apply his judicial mind and thus patently failed to note that the case of the petitioner was that of further enquiry. Besides, the learned counsel for the petitioners alleged that petitioner No. 1 has been found to be innocent as his plea of "alibi" has been accepted by the Investigating Officer and resultantiy, he was entitled to the concession of bail as of right. He stated that the Special Court has also failed to take this fact into consideration and, without any rhyme or reason, refused to grant him bail and thus acted arbitrarily and committed material illegality. The learned counsel further stated that the investigation of the case has revealed that the complainant party (accused in case F.I.R. No. 52) is the real aggressor as they had way laid Noor Wali Jan (killed) and the eye-witnesses, in the cross case and that, on this score too, the petitioners were entitled to be released on bail. He stated that the fact that all the accused, in the cross-case (F.I.R. No. 52), have absconded, have become fugitives from law and have been accordingly declared as "proclaimed offenders" by a competent court was also not taken into consideration by the lower forum while deciding the bail petition. He next contended that the Special Court has fell in error by not taking notice of the consistent view of the superior Courts that in such circumstances the cases of both the parties are to be placed in juxta position and tentative assessment of the record is to be made even at the bail stage. He submitted that if it is difficult/impossible to determine as to who was the aggressor or the aggressed upon and that who had acted in self-defence, then in that situation, the case has to be considered to be that of further enquiry. According to him the tentative assessment of evidence in the case in hand would show that reasonable grounds do not exist for believing that the petitioners are connected with the commission of the offences with which they have been charged and that their case clearly falls under II proviso to Sec. 497 Cr. P.C and accordingly they are entitled to be released on bail, not as a matter of grace but as a matter of right. He argued that since the Subordinate Judge had patently failed to take into consideration this important aspect of the case hence the impugned order is liable to be set aside as it has violated the well settled principle of law. He also submitted that there was nothing on the file, except the bald version of the S.H.O., to suggest that the injured person namely Ghazi Marjan, was unconscious and unable to lodge the report on the day of occurrence. According to him the fact that Ghazi Marjan, after receiving the injury (simple in nature), fell unconscious, and remained as such till the time he was examined by Investigating Officer was neither confirmed by the doctor who examined him in the hospital nor any body else. The petitioners' counsel further submitted that the fact that the petitioners, who are law abiding citizens, did not abscond after the occurrence must not be lost sight of and that on this score alone they may be extended with the concession of bail. Apart from this he also contended that one of the co-accused has already been released on bail and thus, keeping in view the principle of consistency in granting bail, the petitioners be also allowed bail. 9. The counsel for the State, on the other hand, frankly admitted and rightly so that neither the petitioners nor any body else were directly charged, by name, in the F.I.R. for killing Faizullah and injuring P.W. Ghazi Marjan. He however contended that on the very next day of the occurrence i.e., on 4.2.1996 P.W. Mushke Alam charged the petitioners, alongwith their co-accused (now on bail), for having killed Faizullah and injuring P.W. Ghazi Marjan, not only in his statement recorded U/S 161 Cr. P.C. but also in his statement record U/S 164 Cr. P.C.. He stated that the version given by P.W. Muskhe Alam was fully corroborated by the injured P.W., Ghazi Marjan, in his statement recorded on 4.2.1996 immediately after he regained consciousness. He alleged that, in the circumstances, reasonable grounds do exist for believing that the petitioners are connected with the commission of the offences with which they have been charged and that they are therefore not entitled not entitled to be released on bail. According to him, the Special Court had rightly rejected their bail petition. He prayed that the petitioners may not be released on bail at this stage. 10. The learned counsel for the complainant also addressed his arguments in detail. He submitted that even if the contention of the petitioners' counsel that the Investigating Officer had conducted the investigations dishonestly, as he had allegedly procured the services of PW Mushke Alam and had prompted him to depose as an eye witness, against the petitioners, is taken to be correct and consequently the said statement is discarded, being the statement of an installed witness, even then the petitio'ners were no entitled to be released on bail because the other witness, who was injured, i.e., PW Ghazi Marjan, has also charged them directly by name, in his statement, for committing the murder etc. He further stated that in the case in hand it was incumbent upon the petitioner to have shown by cogent evidence that prima facie their case was that of further enquiry and that they were not connected with the commission of the offences with which they were charged and that the petitioners could not take benefit from the weakness of the prosecution case. He was further of the view that if the record of the case is taken into consideration, as a whole, it would reveal that reasonable grounds do exist for believing that the petitioners have committed the offences and that they are not entitled to be bailed out at this stage. According to him this petition is without any substance and deserves to be dismissed. 11. Without going into the merits of the case at this stage and keeping in view the available record I am of the view that the case of the petitioners is that of further enquiry. It is an admitted fact that the occurrence has not been witnessed by any body and it is for this reason that the petitioners have not been charged in the F.I.R. for committing the crime. The contention of alleged eye witness Muskhe Alam that (i) he had seen the occurrence, (ii) had escaped unhurt when was fired upon by the petitioners, (iii) had gone to inform the relatives of deceased (Faizullah) and injured (Ghazi Marjan) about the incident immediately after the occurrence, (iv) was prevented from lodging the F.I.R. because of fear and (v) being dead tired, had gone to his house to take rest, is or is not correct shall be determined by the trial Court at the trial. Similarly, it would be seen at the time of the trial as to whether or not the injured P.W. (Ghazi Marjan), after receiving the injury fell unconscious and was therefore prevented from lodging the F.I.R., immediately after the occurrence, against the petitioners. 12. In view of the two mysteries, mentioned above, coupled with the fact that the petitioners are not named in the F.I.R., I am inclined to hold that, prima facie, reasonable grounds do not exist for believing that they are connected with the commission of the offences with which they have been B charged. This bail petition is, therefore, accepted. The petitioners shall be released forthwith, if not required in any other case, provided they furnish bail bonds in the sum of Rs. 2,00,000/- (Rs. Two lacs) with two sureties, each in the like amount to the satisfaction of the trial Court. 13. The trial Court shall see that the sureties are respectable persons, belong to the settled area of Bannu District and are men of means having sufficient property in their names. The photo copies of their property documents, alongwith their Identity Cards, shall be obtained for record. (MAA) Bail application accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. Karachi 1692 [DB] Present: amanullah abbasi and dr. ghous muhammad, JJ. MUHAMMAD SHAHID-Appellant versus STATE-Respondent Crl. Appeal No. 163 of 1994, accepted on 20.6.1996. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —-S. 13-D read with Suppression of Terrorist Activities Act, 1975-—K.K. with 28 rounds-Recovery of--Conviction for-Challenge to-Prosecution failed to pinpoint circumstances in which alleged voluntary disclosure was made by appellant, it taints discovery with infirmity, especially, when:- (i) accused denies it (ii) no independent and reliable mashir of discovery exist, (iii) time lapse between date of arrest and date of discovery has not been specified, nor reasons given to explain delay, (iv) important article in discovery i.e. "Chadar" i.e. wrap has not been produced-Appeal allowed. [P. 1693 & 1694] A Mr. Salauddin Khan Gandapur, Advocate for Appellant. Mr. Ashig Raza, Advocate, for State. Date of hearing: 14.12.1995. judgment Dr. Ghaus Muhammad, J.--The appellant was convicted and sentenced to suffer R.I. for five years and fine of Rs. 10,000/- or in default to undergo further R.I. for one year vide judgment dated 18.9.1994 by the learned Judge Special Court No. Ill for (S.T.A.) Karachi, for the offence under section 13-D Arms Ordinance (F.I.R. No. 266/1993) registered at Police Station Landhi, Karachi. The F.I.R. was lodged by complainant S.H.O., Ch. Muhammad Aslam on 30.7.1993. He alleged that the appellant was in custody at Police Station Landhi in Crime No. 80/1993 under section 17(3) Enforcement of Hudood Ordinance 1979 and during investigation he volunteered to lead the police party for recovery of unlicensed weapon. Accordingly, S.H.O. Ch. Muhammad Aslam alongwith two private witnesses namely Abdul Sattar and Ishtiaq went to malir river behind Railway Quarters Landhi, Karachi and there allegedly on the pointation of the appellant one K.K. with magazine and 28 rounds which were lying at the vardat in a printed cloth were recovered and seized by the police. After usual investigation the case was challenged before the trial court. During trial the prosecution examined P.W. 1 Ishtiaq Ali Khan and Ch. Muhammad S.H.O., Police Station Landhi, Karachi. The appellant in his statement recorded under section 342 Cr. P.C,. denied the alleged recovery. He also stated that the P.Ws. were interested and they deposed against him at the instance of police. He also alleged his false implication in the case. In his statement recorded under section 340 Cr. P.C. he deposed that he is resident of Khairpur. On 1.8.1993 he was present in his village known as Bhurghri at about 5.30 p.m. police of Gulloo Siyal Police Station alongwith army officials arrested him from his house and detained him for four days. Thereafter Ch. Abid Rafique came at Gulloo Siyal Police Station and brought him in Karachi, where he remained in custody of Police Station Landhi for about 14 days and then he was challaned in four "false cases". He also stated that the K.K. was foisted upon him. We heard Mr. Salahuddin Khan Gandapur. learned counsel for the appellant and Mr. Ashiq Raza learned counsel for the State and also perused the record. Learned counsel for the appellant submitted that (a) the impugned judgment is based on mis-reading of evidence; (b) the prosecution has failed to prove the charge against the appellant beyond reasonable doubt; (c) he was also not given proper opportunity to cross-examine the prosecution witnesses, (d) compliance of section 103 Cr. P.C., was not made and lastly (e) the I.O. of this case had arrested Zahid Hussain who is brother of the appellant and foisted a K.K. on him but he was acquitted by the same trial court. Learned counsel for the State supported the impugned judgment. According to the prosecution the accused was in custody at Landhi Police Station in Crime No. 80/1993 and during investigation he volunteered to produce the unlicensed weapon. Both the prosecution witnesses deposed that the appellant led them to Malir river behind Railway Quarters Landhi, Karachi and he pointed out the place where he had concealed the crime weapon. He then dug out the place and produced one K.K. and cartridges alongwith magazine but he could not produce licence. It would be relevant to note that P.W. 1 Ishtiaq Ali Khan deposed that the appellant produced 28 cartridges but S.H.O. Ch. Muhammad Aslam deposed that the 20 cartridges were secured. In the mashirnama (Exhibit 4) and in the F.I.R. (Exhibit 6) it is mentioned that after digging the earth upto one ft. one SMG No. 21617 and magazine containing 28 live cartridges which were lying wrapped in the printed chadar were recovered. But none of the witnesses have deposed the fact that recovery was made with Chadar, and even the chadar was not secured. Regarding the alleged willingness of the appellant to produce the weapon it is to be seen when in fact he volunteered to lead the police party to the place where the weapon and the cartridges were lying concealed. Admittedly he was in custody in a different crime but it is not clear as to when he was arrested in that crime and for how long he remained in custody before expressing his willingness to produce the weapon. Copy of the F.I.R. No. 266/1993 has not been brought on record. In our view since the prosecution had failed to pinpoint the circumstances in which the alleged voluntary disclosure was made by the appellant, it taints the discovery with infirmity, especially, when:- (i) the accused denies it; (ii) no independent and reliable mashir of the discovery exist; (iii)-the time lapse between the date of arrest and date of discovery has not been specified; nor reasons given to explain the delay; (iv) the important article in the discovery i.e. the "Chadar" i.e. wrap has not been produced. The upshot of the above discussion is that the impugned judgment is liable to be set aside as the prosecution has failed to prove the charge against the accused beyond reasonable doubt. Accordingly this appeal is allowed. The conviction is set aside and the appellant should be released forthwith if not required in any other case. (K.K.F.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1694 [Multan Bench] Present: syed zahid hussain bokhari, J. ZAFAR HUSSAIN and two others-Petitioners versus THE STATE-Respondent Criminal Misc. No. 721-B-1996, accepted 21.5.1996. Bail- —S. 497/498 of Cr.P.C. read with-Ss. 452, 148, 149, 337-A(ii), 337-F(i) of Pakistan Penal Code and section 11 Offence of Zina (Enforcement of Hadood) Ordinance, 1979--Bail--Grant of--Prayer for-No allegation as envisaged in Article 11, Offence of Zina (Enforcement of Hadood Ordinance, 1979 available in statement of abductee recorded U/S. 161 Cr.P.C.-Other offences not punishable with imprisonment for 10 years or more—Petitioners are in judicial look up for the last 4 months and are not required for further investigation-A case of further inquiry-Bail granted. [P. 1696] A Syed Zafar Hussain, Advocate, for the Petitioner. Sh. Muhammad Rahim, Advocate for State. Munir Hussain ASI. Date of hearing: 21.5.1996. order Petitioners Zafar Hussain, Sabir Hussain and Nasir Hussain sons of Muhammad Nawaz sought bail after arrest in case FIR No. 330 dated 9.12.1995 under section 452/148/149, 337-A(ii), 337-F(i) read with section 11, Offence ofZina (Enforcement of Hadood) Ordinance, VII, 1979, P.S. City Kabirala registered against the petitioners and others for the alleged abduction of Mst. Nasreen Akhtar sister of the complainant and for causing injuries to Mst. Zainab Bibi, Aziz Mai and Mst. Shamim Akhtar in an occurrence which took place on 9.12.1995 at 1.30 p.m. in the area of Basti Rehan Pur situated at a distance of 2 k.m. from the P.S. 2. Learned counsel for the petitioners argued that from the own showing of the prosecution Mst. Nasreen Akhtar alleged abductee was betrothed to Nasir Hussain petitioner and Shari nikah was solemnised and thereafter Mst. Nasreen and her relatives broke the promise which resulted into the filing of a suit for dissolution of marriage, which was decreed in favour of Mst. Nasreen and the appeal of Nasir Hussain petitioner was dismissed. Further argued that petitioner Nasir Hussain filed a suit for restitution of conjugal rights at Dharki (Province of Sind) which was decreed in his favour. Also submitted that a false case has been registered against the petitioner on account of strained family relations between the parties and petitioners did not commit any offence; that the injuries allegedly caused to the prosecution witnesses with blunt weapon were declared to be simple in nature and facts of the case require some amount of further inquiry to connect the petitioners with the commission of offence. 3. Learned counsel for the State a gued that the petitioners were named in promptly registered FIR with specific role and the offences alleged against them fall within the prohibitory clause of section 497 Cr. P.C. 4. I have heard the learned counsel for the parties and have gone through the record. 5. Talib Hussain, Khizar Hayat and Allah Ditta co-accused of the petitioners were attributed injuries to Mst. Zainab, Aziz Mai and Shamim Akhtar. During the investigation, all the three were found innocent by SP, Khanewal vide zimini dated 29.3.1996. The petitioners have not been attributed any injury to any one. The injuries have been declared simple in nature. 6. I have examined the statement of Mst. Nasreen abductee/victim recorded under section 161 Cr. P.C. She has stated that none of the petitioners or their co-accused committed zina with her. She was kept in onfinement for 5 days in a house at Khanewal. She did not allege that any effort was made by the accused petitioners to force her to marry against her wishes. Article 11, Offence of Zina (Enforcement of Hadood) Ordinance VII, 1979 provides:- Kidnapping, abducting or inducing woman to compel for marriage etc. Whoever kidnaps or abducts any women with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may forced or seduced to illicit intercourse, shall be punished with imprisonment for life and with whipping not exceeding thirty stripes and shall also be liable to fine; and whoever by means of criminal intimidation as defined in the Pakistan Penal Code (Act XLV of 1860) or of abuse of authority or any other method of compulsion induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with an other person shall also be punishable as aforesaid. 7. A perusal of the above quoted provision of law marks it clear that in order to attract the mis-chief of Article 11 ibid the abduction of any woman must be with the intention to compel her to marry against her will or to force or to seduce her to illicit inter-course. No such allegations are levelled by the abductee in her statement recorded under section 161 Cr.P.C. The offences under sections 452/148/149/337-A(ii) and 337-F(i) PPC are not punishable with imprisonment of 10 years or more. The petitioners are in he judicial lock up for the last about 4 months and are no more required for further investigation. In my considered view there are no reasonable grounds for believing that the accused have committed a non-bailable offence but there are sufficient grounds for further inquiry into their guilt. 8. For what has been stated above, this petition is accepted and petitioners, Zafar Russian, Sabir Hussain and Nasir Hussain are admitted to bail provided they furnish bail bond in the sum of Rs. 30,000/- each with one surety each in the like amount to the satisfaction of Senior Civil Judge/trial court, Khanewal. (MAA) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1696 Present: JAWAID NAWAZ KHAN GANDAPUR, J. Mst. SADIQA SHAHEEN-Petitioner versus TAHIR ALI and another-Respondents Criminal Misc. No. 602/1996, accepted on 21.8.1996. Bail- —S. 497 of Cr.P.C. read with S. 302 of Pakistan Penal Code, 1860-Bail- Grant of-Prayer for-Deceased last seen with petitioner-Weapon of offence recovered at pointation of petitioner-Allegations of-Held: F.I.R. absolutely silent that deceased was last seen in company of petitioner-No reasonable ground exist to believe that petitioner is connected with commission of offence—Petitioner, a lady is behind bars for last 3^ months-Case of further inquiry-Bail allowed. [Pp. 1698 & 1699] A & B Mr. Attaullah Khan, Advocate, for the Petitioner. Mr. Abdul Sattar Khan, Advocate, for Complainant. Mr. Tasleem Hussain, Advocate, for State. Date of hearing: 21.8.1996. judgment Tahir Ali complainant, aged about 17/18 years, has charged petitioner Mst. Siddiqa Shaheen, his step-mother, for having killed his father (her husband), by slaughtering him in his house on 9.5.1996, vide F.I.R. No. 65 registered U/S 302 P.P.C. on 9.5.1996 at about 6.30 P.M. lodged in Police Station Kotwali, Peshawar. 2. Consequently the petitioner was arrested and moved the lower courts for her release on bail. Having failed to get the relief sought for has now come to this court for the redress of her grievance. She has, in the main, alleged that she is innocent and falsely charged, for ulterior motives and therefore entitled to the concession of bail in accordance with law. 3. The learned counsel for the parties present and heard. I have also gone through the record of the case carefully. 4. The learned counsel for the petitioner vehemently urged for the grant of bail on two grounds. Firstly, on merits in that according to him the case is hand was a case of "no evidence" and therefore the petitioner was entitled to bail not as a matter of grace but as a matter of right. According to him it was apparent, on the face of the record, that nobody had seen the occurrence and that it was for this reason that even the complainant, the son of the deceased, who was residing with the deceased and the accused in the same house, could not involve the petitioner for committing the offence for any valid reason. All that he could allege, in the F.I.R. was 5. The learned counsel for the petitioner next stated that in the ordinary circumstances it is not conceivable that a week woman could be so cruel and stone hearted so as to slaughter a male victim with a knife. According to him, on the other hand, the complainant had himself stated before the police that he had visited the house, twice, on the day of occurrence, on various pretexts, as mentioned in the very F.I.R. and that it was quite possible that he might have killed his father because, he atleast, had a motive to do so and that is that his father had contracted a second marriage with the petitioner a few days earlier than the occurrence. He alleged that under these circumstances, the murder was shrouded in mystery and accordingly reasonable grounds do exist for believing that the petitioner's case is that of further enquiry and that there was nothing on the record to suggest, even remotely, that she has committed the crime. Secondly, that the petitioner, being a woman, was entitled to be released on bail under the first proviso of Sec. 497 Cr.P.C. 6. On the other hand, the learned counsel for the complainant stated that the petitioner has been directly charged for killing her husband in the promptly lodged report and since she also had a motive to kill the deceased, therefore, she could not be extended the concession of bail. However, he failed to explain as to what had factually prompted the petitioner to kill her husband to whom she was married only 22 di.ys before the occurrence. The contention of the learned counsel for the complainant that the petitioner was a woman of bad character and therefore, she had a motive to kill her husband has not impressed me. Nor can it persuade me to presume that she must have, in all probability, committed the crime in question. Lastly, the contention of the complainant's counsel that since the petitioner was last seen in the company of the deceased and therefore, it should be taken for granted that only she had killed her husband has no substance in as much as the complainant nowhere stated in the F.I.R. that it was he who had seen the petitioner last in the company of the deceased on the day of occurrence. The F.I.R. is absolutely silent about this fact. 7. The learned counsel for the State, to some extent, repeated the arguments advanced by the learned counsel for the complainant by alleging that the petitioner was last seen in the company of the deceased and therefore, only she could kill her husband. In addition he raised another point and submitted that the weapon of offence was recovered on the pointation of the petitioner and therefore, though the occurrence had not been witnessed by anybody, reasonable grounds do exist to believe that only the petitioner had committed the murder. He stated that in these circumstances she was not entitled to be released on bail. 8. Without dilating upon the merits of the case, at this stage, lest it may not prejudice the judicial mind of the trial court and keeping in view the available record, specially the F.I.R. and the statements of the complainant and Zafar Ali, the order son of the deceased, recorded U/S 161 Cr.P.C., I am of the considered view that reasonable grounds do not exist for believing that the petitioner is connected with the commission of the offence charged with and that her case is that of further enquiry. Apart from this the petitioner lady is behind the bars for the 1st more than 3^ months and is definitely not required for any purpose i.e., further investigations etc., therefore no useful urpose would be served if she is allowed to remain locked up in the jail. Since the petitioner is a purdan nasheen lady, therefore, I am inclined to release her on bail under the first proviso of Sec. 497 Cr.P.C. Resultantiy this bail petition is accepted. 9. The petitioner shall be released forthwith, if not wanted in any other case, provided she furnishes bail bonds in the sum of Rs. 1,00,000/- (Rs. one lac) with two sureties, each in the like amount, to the satisfaction of Senior Civil Judge or Sub-Divisional Magistrate, Peshawar. The Senior Civil Judge/Sub-Divisional Magistrate shall see that the sureties are respectable person, bail from the settled are of Peshawar and have sufficient properly in their names. IMAA) BaU allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1699 Present: jawaid nawaz khan gandapur, J. MUHAMMAD IJAZ-Petitioner versus SHER SHAH and another-Respondents Criminal Misc. No. 502 of 1996, decided on 18.7.1996. Bail-Cancellation of» -—S. 497(5) read with Pakistan Penal Code, 1860 S. 328/377 and S. 12, Offence of Zina (Enforcement of Hadood) Ordinance, 1979--Bail- Cancellation of—Prayer for-Allegations, attempt to commit sodomy with 12 year kid after administration of drug-Anal swabs found stained with semen—Poison not detected in Gastric Lavage-Record showing reasonable grounds do exist to believe that petitioner had attempted to commit sodomy after intoxicating him-Bail granted is recalled. [P. 1701] A & B Mr. Abdul Sattar Khan, Advocate, for Petitioner. Mr. Muhammad Asif, Advocate for Respondent No. 1. Mr. Sohail Akhtar, Advocate, for State. Date of hearing: 18.7.1996. judgment Sher Shah, respondent No. 1, stands charged for having committed an offence punishable U/Ss 328/377 P.P.C. read with Section 12 Offence of Zina (Enforcement of Hadood) Ordinance, 1979, vide F.I.R. No. 169 lodged in Police Station University Town on 8.3.1996. The F.I.R. was lodged by Muhammad Ejaz, the father of the victim, Kashif Ejaz, aged about 12 years. 2. After the' registration of the case, respondent No. 1 managed to get pre-arrest interim bail from the court of Additional Sessions Judge, Peshawar which was, however, not confirmed by the Additional Sessions Judge vide his order dated 21.3.1996. Consequently, respondent No. 1 was arrested and he then applied for bail to the Dlaqa Magistrate who, by his order dated 17.4.1996, refused to release him on bail. For the redress of his grievance, respondent No. 1 knocked at the door of the Additional Sessions Judge who, vide; his order dated 15.5.1996, extended the concession of bail to him. Hence this petition for the cancellation of bail. 3. Mr. Abdul Sattar Khan Advocate, learned counsel for the petitioner, Mr. Muhammad Asif Khan Advocate, learned counsel for respondent No. 1, Mr. Sohail Akhtar Advocate, the learned counsel for the State (respondent No. 2) present and heard. Record of the case perused. 4. Admittedly, in the F.I.R., lodged by the father of the 12 years old victim, respondent No. 1 (Sher Shah) has not been charged for having attempted to commit sodomy with the 12 years old kid. However, when the tatement of the child (victim) was recorded U/S 164 Cr.P.C. he gave a detailed version of the incident which had actually taken place. The boy, in crystal clear words, stated before the Magistrate that he had gone to the house situated in Street No. 5 of he Canal Colony where Sher Shah ccused-respondent No. 2 was present who served him with tea. Resultantly he became giddy and informed Sher Shah accused that something had happened to him after taking the tea. Sher Shah thereafter gave him a tablet to take. After administering the drug the contesting respondent took the boy to the adjacent room and started rubbing his head. After some time, the boy became unconscious. The body further stated that when he regained consciousness he found that he was all alone in the room and that his trouser-rope was untied. The boy further alleged, before the Magistrate, that he could not "walk" properly because he felt pain between his legs. However, he managed to reach his house but before that respondent No. 1 (Sher Shah) met him, on the street, and threatened him not to disclose the incident to anybody otherwise he would face dire consequences. On reaching the house, the body narrated the story to his father about the occurrence. In the last two lines of his statement, recorded U/S 164 Cr.P.C., the boy charged the accused respondent as under: - "I charge Sher Shah for making me unconscious, confining me to room and disgracing me." 5. When the anal swabs were sent, for microscopic identification to the Chemical Examiner at Lahore, the Chemical Examiner Government of Punjab, opined as under: - "The above swabs are stained with semen. However poison is not detected in the above Gastric Lavage." 6. The learned counsel for the petitioner submitted that the victim was a child of about 12 years and had no enmity/illwill or ulterior motive to have charged respondent No. 1 for making him unconscious by administering intoxicant to him and then attempting to commit sodomy with him. According to him, the perusal of the F.I.R., statement of the victim recorded U/S 164 Cr.P.C., and the Medical report would reveal that prima facie the petitioner is connected with the commission of the offence with which he has been charged by the boy and that therefore, he was not entitled to the concession of bail specially when his case was hit by the prohibitory clause of section 497 Cr.P.C. 7. On the other hand, the learned counsel for the contesting respondent (Sher Shah) stated .that since respondent No. 1 has not been charged directly in the F.I.R. for attempting to commit sodomy with the boy, therefore, he was rightly released on bail by the Additional Sessions Judge. 8. Without dilating upon the merits of the case at this stage and keeping in view the record available on the file, I am of the view that reasonable grounds do exist for believing that the respondent No. 1 had attempted to commit sodomy with the boy by intoxicating him. Resultantly he was not entitled to be released on bail. 9. The impugned order of the Additional Sessions Judge is, therefore, set aside and the bail granted to respondent No. 1 is recalled. The respondent accused is present in Court and shall be taken into custody and sent to jail forthwith. (MAA) Bail recalled.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1701 (DB) Present: wajihuddin ahmad and abdul majtd khanzada, JJ. HASSAN-Applicant versus THE STATE-Respondent Criminal Bail Application No. 667 of 1994 and Cr. Bail No. 1289/95 decided on 27.3.1996. (i) Bail- —-S. 497(1), Third proviso of Cr.P.C.-Bail-Grant of-Statutory delay-­ Method of calculation of period—Mathematcial method of calculating pendency of proceedings while accused remained in custody and substracting from it the period accused sought adjournments—Held: This is not proper mode of reckoning period envisaged relevant to statutory delay in third proviso to sub-section (1) of S. 497 Cr.P.C.-Even an adjournment of single day at the instance of accused, may have repercussions and reverberations, generating far greater period of inaction in a case-Prosecution may be pushed off track for a longer period than covered by bare period of adjournment-This aspect, obviously, had to be considered, in specific facts of case while granting bail on ground of statutory delay. [P. 1703] A (ii) Bail- —S. 497(1), Fourth Proviso of Cr.P.C.-Pakistan Penal Code, 1860 S. 365-A/34«Bail--Grant of--Statutory delay-While granting bail court has to see whether benefit under third proviso was or was not forfeited on account of added condition in fourth proviso, namely whether accused was a previous convict, who, in opinion court was hardened, desperate or dangerous criminal. [P. 1704] B Mr. Abdul Waheed Katpar, Advocate, for accused Shafique, Rahim and Umer. Mr. Khawaja Naveed, Advocate, for Applicant Hassan. Mr. Muhammad Shaft Memon, Additional A.G. Date of hearing: 27.3.1996. order Several persons, including the accused above, are allegedly involved in abduction of one Suhail Ahmed Shamsi as per FIR No. 307/91 of P.S. Landhi, Karachi (East) and face trial before the Special Court No. 1 (STA) Karachi. Out of that number, accused Allah Warayo, whose case is no longer before us, was granted bail by this Court on 23.8.1994 in Cr. Bail Application No. 695/1994 on the ground that he was not identified as an accomplice in the case and his case, therefore, was distinguishable. Accused Hassan above, however, was refused bail in Cr. Bail Application No. 667 of 1994, per order dated 17.10.1994, on the grounds that he was picked up in the identification parade, identified in Court and had a specific alone assigned against him, the indictment being under Sections 365-A/34 PPC. At the same time and through the same order, dated 17.10.1994, accused Shahiq, Rahim and Umer, who were granted bails by the learned trial Judge on 30.5.1994, upon invocation of the ground of statutory delay, were noticed to show cause as to why bails granted to them, as above, should not be recalled. Shahiq and Rahim, according to Mr. Abdul Waheed Katpar, who represents them now, have been released on 18.7.1994 but Umer still remains in custody, apparently, on account of procedural constraints. While such notices stood issued to the referred three accused in Cr. Bail Application No. 667/1994 accused Hassan, who was refused bail by this court, reapplied for the same relief through Cr. Bail Application No. 1289/1995, seeking the benefit of statutory delay and is represented by Mr. Khawaja Naveed Ahmed. On 17.12.1995, when Cr. Bail Application No. 667/1994 relevant to canellation, aforesaid, came up before this Court, notice was issued to the Advocate General, Sindh, to obtain and submit a report whether or not the accused, who were issued notices for cancellation, were or were not hardened, desperate or dangerous criminals, falling within the exception applicable to statutory delays, contemplated by the fourth proviso to sub­section (1) of section 497 Cr.P.C., the third and fourth provisos being as under:- "Provided further that the court shall, except where it is of opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf direct that any person shall be released on bail:- (a) who being accused of any offence not punishable with death has been detained for such offence for a continuous period exceeding one year and whose trial for such offence has not concluded; or (b) who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offence has not concluded; Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who, in the opinion of the court, is a hardened, desperate or dangerous criminal. Mr. Shafi Muhammad Memon, Addl. Advocate General, Sindh, who appeared before us today on the case being called, informs us that neither the case has been marked to him nor does he know anything about it. We have, therefore, heard the matter virtually without any assistance from the State. Examining the order of the learned trial Judge, dated 30.5.1994, whereby accused Shahiq, Rahim and Umer were admitted to the facility of bail on the ground of statutory delay, we find that the learned Judge has virtually adopted a mathematical method of calculating the pendency of the proceedings while the accused remained in custody and subtracting from it the period involved in the adjournments sought from the side of the accused. This, obviously, is not a proper mode of reckoning the period envisaged relevant to statutory delay in the third proviso to subsection (1) of Section 497 Cr.P.C. It goes without saying that even an adjournment of a single day, at the instance of the accused, may have repurcussions and reverberations, generating far greater period of inaction in the case then merely covered by the adjournment because an adjournment has implications, subject to the facts of each case, of promoting or creating circumstances, whereby the prosecution may be pushed off the track for a longer duration of time than covered by the bare period of adjournment. This aspect, obviously, had to be considered, in the specific facts of the case, at the time of grant of bail on the ground of statutory delay and was not considered. Besides, relevant to the fourth proviso to subsection (1) of Section 497 Cr.P.C., before considering a case for grant of bail on the ground of statutory delay, the Court concerned has to see whether the benefit under the third proviso was or was not forfeited, on account of the added condition in such fourth proviso namely, whether the concerned accused was a previously convicted offender or a person who, in the opinion of the court, was a hardened, desparate or dangerous criminal. Since the learned trial Judge, while admitting the above three accused to bail did not advert to this aspect of the matter as well, the learned Advocate General Sindh, as aforesaid, was required to obtained and submit a report, which as seen has not been done. In the circumstances of the case, we would recall the order of grant of bail to accused Shahiq, Rahim and Umer, passed by the Special Court on 30.5.1994 and remand the case back to the learned Judge concerned to reexamine the bail application(s) of the accused-applicants in the light of the foregoing and in the current perspective of things which, relevant to this case, regarding accused Umer, who as said still remains detained, may ostensibly now involve a substantially longer period of delay than the minimum statutory requirement. Till, however, the learned trial Judge re-applies himself to the controversy and decides to grant or refuse bail to accused Shahiq, Rahim and Umer or any of them, such accused would remain on interim bail, to be granted by the learned Judge upon their re­ appearance or production, as the case may be. Before that eventuality, however, on the basis of the sureties already furnished, accused Shahiq and Rahim would remain on protective bail granted by this Court. As regards accused Hasan, who has re-applied for bail in this Court, through Cr. Bail Application No. 1289/1995, this time on the ground of statutory delay, such application is dismissed because the plea of statutory delay ought to have been taken, in the first instance, before the trial Court. The applicant, however, would be free to re-apply before the trial Court on the same ground namely, statutory delay or any other ground, as to be found advisable. Order accordingly. (MAA) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1705 (DB) [Circuit Bench Hyderabad] Present: rana bhagwan das and amanullah abbasi, JJ. HAJI Khan –Petitioner Verses STATE-Responderit Criminal Misc. Appeal No. 30 of 1995, decided on 2.8.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 561-A read with S. 13 (E)-West Pakistan Arms Ordinance, 1965-- Quashment of proceedings-Recovery of 10 klashinkovs, 1560 rounds- Case culminating in recovery of incriminating articles was found false by Division Bench of High Court-No appeal against acquittal was filed which has attained finality-No circumstance shown to exist to warrant different treatment to petitioner-Held : Continuation of proceedings against petitioner shall amount to gross abuse of process of court- Proceedings Quashed. [P. 1706] A, B & C PLD 1993 Kar. 735 ref. Mr. Allah Bachayo Soomro, Advocate, for Applicant. Mr. Abdul Latif Ansari, Asstt. A.A.G. Date of hearing: 20.8.1996. order Proceedings under section 13-E of Arms Ordinance in Special Case No. 426/1994 are pending before the Special Court No. 1, S.T.A. Hyderbaad on the averments that on 1.11.1990 Law Enforcing Agency Hyderabad handed over as many as 28 persons allegedly affiliated with Al-Zulfiqar Organisation for taking action during the course of investigation since weapons were secured from their possession in presence of mashirs Allah Bux Jiskani S.D.P.O. City and Liaquat Ali, Writer Head Constable CIA Hyderabad. The petitioner is one of those 28 persons who were prosecuted before the Special Court after the registration of Crime No. 456/1990 in which proceedings were quashed by a Division Bench of this Court consisting of Nasir Aslam Zahid C.J. and Shoukat Zubedi, J. as reported in PLD 1993 Karachi 735, It is alleged that 10 kalashinkoves, 10 slings and 1560 rounds were recovered from the possession of the petitioner for which he could not produce any licence. Accordingly a separate case under section 13(2) of Arms Ordinance vide Crime No. 250/1990 was registered at Police Station Cantt. against him and he was sent up. The petitioner moved an application for his acquittal under section 249-A Cr.P.C. before the trial Court but without any success hence this petition for quashment of the proceedings. 2. It is urged on behalf of the petitioner that entire case culminating in recovery of incriminating articles was fond to be false by a Division Bench of this Court as reported in the case of Muhammad Sadiq Umarani v. Government of Sindh (PLD 1993 Karachi 735). The State did not file any acquittal appeal from the said judgment which has attained finality and is binding on all concerned for all intents and purposes. The petitioner being one of those 28 accused persons and the present proceedings being off shoot of the main case he cannot be discriminated or treated in a different manner. There is a considerable force in the submission advanced on behalf of the petitioner which has not been challenged by the learned State counsel. In the circumstances, we are inclined to the view that the petitioner is entitled to equal protection of law and equal treatment in the eyes of law. 3. the next ground urged in support of the petition is that on identical evidence and in similar set of circumstances proceedings in Special Case No. 428/1990 against accused Zaheeruddin were quashed by another Division Bench of this Court in Criminal Misc. Application No. 247 of 1994 by a Bench consisting of Ghulam Haider Lakho and Dr. Ghous Muhammad, JJ. on 28.5.1996. A perusal of the judgment in the said case clearly tends to show that learned counsel appearing for State frankly conceded to the quahsment of the proceedings. The aforesaid judgment as well as the concession by the State counsel are not controverted before us by the learned A.A.G. It is also not disputed that the facts of the case against Zaheeruddin are on all fours with the facts of the present case. Notwithstanding usual stand taken by the learned AAG we are inclined to the view that the case of the petitioner is not distinguishable from the case of accused Zaheeruddin. No circumstance has been shown to exist to warrant a different treatment to the petitioner who in law is entitled to equal treatment and equal protection of law. 4. For the aforesaid facts and reasons we are of the considered view j that continuation of the proceedings against the petitioner shall amount to j gross abuse of process of court and it is in the interest of justice to quash theproceedings. It may be made clear that the case was fixed for Katcha Peshi but since both the learned counsel have advanced arguments on the merits of the petition we are disposing of the petition finally. (MAA) Proceedings Quashed.

PLJ 1996 Cr PLJ 1996 Cr.C . ( Lahore ) 1707 [ Multan Bench] Present: riaz hussain, J. ABDUL KHALIQ and 2 others-Petitioners versus STATE-Respondent Crl . Misc. No. 1826-B-94, accepted on 19.12.1994. Bail- —S. 497 Cr.P.C .--Bail--Grant of--Prayer for-Offence U/Ss. 337- A( iii)/337 A(ii)/337-F(v)/148/149 PPC-Injuries on the person of Manzoor have been declared simple-Although there was a fracture on the left arm of Mst . Gulzar Mai yet it was on her non-vital part of body-Offence does not falls within prohibitory clause of section 497 Cr.P.C . (l)-Petition accepted. [P. 1707] A Mr. Abdul Aziz Khan Niazi , Advocate for Petitioners. Mr. Muhammad Iqbal Khichi , AAG for State. Date of hearing: 19.12.1994. order The petitioners Abdul Khaliq , Muhammad Iqbal and Muhammad Arif seek bail in a case FIR No. 157/94 dated 7.6.1994 for the offences under sections 337-A(iii)/337-A(ii) 337-F(v) 148/149 PPC registered at Police Station Mitru District Vehari . 2. The prosecutions story in brief is that the petitioner Abdul Khaliq gave a sota blow which injured Mst . Gulzar Mia on her left arm; Muhammad Iqbal and Muhammad Arif gave one sota blow each which landed on the head of Manzoor Hussain . 3. I have heard both the learned counsel and perused the record. 4. The injuries on the person of Manzoor Hussain have been declared simple. Although there was a fracture on the left arm of Mst . Gulzar Mai yet it was on her non vital part of the body. Admittedly the offence against the petitioners does not falls within the prohibitory clause of section 497 Cr.P.C . I, therefore, feel inclined to admit the petitioners to bail subject to furnishing their bail bonds in the sum of Rs . 30,000/- (Rupees thirty thousand only) each with one surety each in the like amount to the satisfaction of A.C./District Magistrate Mailsi . (M.S.N.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1708 [ Multan Bench] Present: muhammad naseem, J. AHMAD NAWAZ-Applicant/Petitioner versus STATE-Res^ondent Crl. Appeal No, 309-93 dismissed on 19.2.1995. Criminal Procedure Code, 1898 (Act V of 1898)- —S. 426-Suspension of sentence-Prayer for-Offence U/Ss. 302/304/34 PPC--Contention that evidence produced by prosecution did not justify conviction of appellant/petitioner-High Court is of the view that deeper merits of matter cannot be gone into lest same may prejudice merits of appeal-Court is not inclined to suspend sentence of petitioner to whom practical role of injuring deceased and PW is attributed-Petition dismissed. [P. 1708] A Mr. Allah Bakhsh Bazan Kuluchi, Advocate, for Petitioner. Mr. Abdul Aziz Khan Niazi, Advocate, for Complainant. Sh. Muhammad Rashid, Advocate, for State. Date of hearing: 19.2.1995. order Sadiq Karim petitioner was convicted alongwith his co-appellants on 11.11.1993 by the Sessions Judge, Dera Ghazi Khan to R.I. for a period of 25 years and to pay compensation of Rs. 15.000/- under section 302 (C) PPC. His appeal is pending in this Court. Through the making of this petition he is desirous to be admitted to bail through the suspension of his sentence. 2. I have heard the learned counsel for the parties. Learned counsel for the petitioner made the arguments touching the merits of the case. Heargued that the evidence produced by the prosecution did not justify the conviction of the appellant-petitioner. I am afraid that the deeper merits of the matter cannot be gone into lest the same may not prejudice the merits of the appeal. Hence I am not inclined to suspend the sentence of Said Karim petitioner to whom the practical role of injurying the deceased and the PW. is attributed. 3. I, therefore, dismiss this petition. (M.S.M.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1709 Present: ahmed saeed awan, J. KHALID HUSSAIN-Petitioner versus STATE-Respondent Crl. Appeal No. 262/96 dismissed on 6.6.1996. Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 426--Suspension of sentence-Case of-Offence U/S. 302(b)/34 PPC-- Contention that medical evidence is not in consistency of ocular evidence as according to medical report dimension of injury clearly shows that it was not result of 12-Bore weapon as alleged in F.I.R. rather is a bullet injury, while learned Judge categorically held that deceased was murdered by a fire arm 12-Bore beyond any doubt-Held: Plea needs deeper appreciation of evidence at this stage cannot be gone into-Petition dismissed. [P. 1710] A Mr. R.A. Awan, Advocate, for Petitioner. Ch. Anwar Dholan, Advocate, for State. Date of hearing: 5.6.1996. order The petitioners have been convicted under Section 302(b)/34 P.P.C. and sentenced to undergo life imprisonment in the private complaint titled Sabir vs. Khalid Hussain, seek suspension of their sentence under Section 426 Cr.P.C. and be released on bail. 2. The learned counsel for the petitioner contended that the petitioners had not been held liable for having caused the murder of the deceased only ineffective firing at the PW's had been alleged and was not supported by any confirmatory circumstance on the record; the fatal injury caused to the deceased was only attributed to Khalid appellant, coaccused/convict who was got discharged by the police being found innocent at the initial stages but was called by the learned trial Court in the complaint case. 3. In support of his contention, the learned counsel relied on case Muhammad Sadiq vs. The State (1986 P.Cr.L.J. 812) Lahore and case Sattu Khan and others vs. The State (1988 S.C.M.R. 241). According to the F.I.R. Khalid accused was armed with 12-Bore gun, Tariq Malik petitioner was armed with 7-MM rifle while Muhammad Malak petitioner raised Lalkara, during the investigation Khalid and Ghulam Muhammad accused were found innocent and were got discharged while the petitioners were found guilty under Section 302/34 P.P.C. 4. The complainant being dissatisfied with the investigation had filed the private complaint Ex. P. C. wherein accused persons were summoned and faced trial. 5. The learned counsel's contention that the medical evidence is not in consistency of ocular evidence as according to medical report the dimension of injury clearly shows that it was not the result of 12-Bore eapon as alleged in the F.I.R. rather is a bullet injury; while the learned Judge categorically held that the deceased was murdered by a fire arm 12- Bore beyond any doubt; hence the plea needs deeper appreciation of evidence at this stage cannot be gone into. Further, it has been held that admittedly the eye witnesses had no motive and incentive to involve the petitioners in a false case of murder; further the contention that neither weapons were recovered nor empties were recovered from the spot as alleged indiscriminating firing is of no help at this stage as investigation of the police was not believed in and the complainant was forced to file a private complaint. 6. The supra cases relied upon by the learned counsel for the petitioners are not applicable to the facts of the case in hand and are quite distinguishable. The petitioners were convicted ton 24.3.1996 and there eems no urgency to suspend the sentence and release on bail; the petition being devoid of merits is dismissed. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1710 [ Multan Bench] Present: RlAZ HUSSAIN, J. LIAQUAT EJAZ-Petitioner versus STATE-Respondent Crl. Misc. No. 1295-B-1995 accepted on 19.9.1995. Bail- —S. 497 Cr.P.C.-Bail--Grant of-Prayer for-Offence U/Ss. 324/34, 337-AU) 337-F (ii) of Pakistan Penal Code, 1860--From available material it cannot be gathered that petitioner attempted to commit murder-It was alleged in F.I.R. that petitioner caused injuries with a dagger but instead razor was recovered-Held: Case needs further inquiry-Petition accepted. [P. 1711] A & B Mr. Abdul Aziz Khan Niazi, Advocate, for Petitioner. Sh. Ghul Muhammad, Advocate, for State. Date of hearing: 19.9.1995. order This is an application for bail after arrest in a case F.I.R. No. 241/94 dated 21.12.1994 for the offence under Sections 324/34, 337-A (i), 337-F(ii) P.P.C. registered at Police Station Kacha Khoo, District Khanewal. 2. Brief facts are that Liaquat Ejaz petitioner gave dagger blows to Muhammad Faiz whereas his co-accused Ahamd Nawaz and Sher AH elapsed him. 3. It is contended that the nature of injuries attributed to the petitioner shall be termed as Jurh Ghayr Jaifah Badiah and its maximum punishment is three years. 4. There were five injuries on the person of victim. Injuries No. 2 to 5 were though found on the vital parts but were found skin deep. Injury No. 1 was on non vital part. From the available material it cannot be gathered that the petitioner attempted to commit murder. It was alleged in the F.I.R. that Ejaz caused injuries witli a dagger but instead a razor was recovered from the petitioner. 5. For the fore-going reasons the case agairst the petitioner needs further inquiry. I am, therefore, inclined to admit the petitioner to be released on bail subject to his furnishing bail bond in the sum of Rs, 50,QQO/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of AC/Haqa Magistrate Khanewal. (M.S.M.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1711 Present: raja muhammad khurshid, J. SARDAR KHAN and another-Petitioners versus MUHAMMAD IQBAL and 2 others-Respondents Crl. Misc. No. 4263/B/1995 dismissed on 20.5.1996. Bail-Cancelaltion of- —-S. 497(5) Cr.P.C.-Bail-Cancellation of-Offence U/Ss., 10/11 Offence of Zina (Enforcement of Hadood) Order 1979-Case has already been fixed for trial and prosecution evidence has been summoned by trial Court- Conclusion of trial is within sight-If respondents make any overt act during trial or cause unnecessary delay in its disposal, aggrieved party may move for cancellation of bail-Petition dismissed. [P. 1713] A Mr. Muhammad Farooq Qureshi Chishti, Advocate, for Petitioners. Mr. Mobeen-ud-Din Qazi, Advocate, for Respondent No. 1 and on behalf of Malik Fawad, Advocate counsel for Respondent No. 2 Malik Fiyaz, Advocate, for State. Date of hearing: 7.5.1996. order This petition is moved under Section 497(5) Cr.P.C. for cancellation of bail granted to respondents No. 1 and 2 vide order dated 21.9.1995 and dated 10.9.1995 respectively recorded by Mr. Javed Nawaz Chaudhary, learned Addl. Sessions Judge, Bhalwal. 2. According to the F.I.R., a case under Section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at the report of Sardar Khan, father of the abductee, Mst. Balqees Fatima aged about 14 years. It was stated in the F.I.R. that the aforesaid Mst. Balqees Fatima was missing from the house and on enquiry Muhammad Iqbal s/o Muhammad Khan and Muhammad Hussain s/o Fateh Muhammad i.e. PWs, told him that the abductee was seen alongwith Muhammad Iqbal, accused boarding a wagon for Sargodha. According to complainant the abductee was enticed away for the purpose ofzina by the aforesaid accused. 3. The abductee after her recovery made statement that she was taken out of the house by Imam Ali on the pretext that his daughter was calling her at his dera. She reached the dera of Imam Ali, where Muhammad Iqbal respondent No. 1 was also present. Both of them forcibly took her away from that dera. Whereupon Muhammad Iqbal allegedly committed zina-biljabr with her and that ultimately both of them namely Muhammad Iqbal and Mst. Balqees Fatima were taken into custody by the police while they were present in a bus near Skaisar. She stated that after her abduction Muhammad Iqbal respondent No. 1 committed zina-bil-jabr with her. The learned trial court admitted respondent No. 1 to bail on the ground that the story given in the F.I.R. was different from the story given by Mst. Balqees Fatima in her statement under Section 164 Cr.P.C. recorded after her recovery by the police. In the F.I.R. it is narrated that she was seen by PWs while she was boarding a wagon, whereas according to abductee she was taken away on a bicycle. This according to the learned Addl. Sessions Judge reveals two versions, which require further inquiry. Likewise Imam Ali was admitted to bail because there was no allegation ofzina against him. 4. The learned counsel for the petitioner has submitted that the learned Addl. Sessions Judge fell in error by saying that there were two different versions. In fact there was only one version because according to PWs she was seen boarding a wagon alongwith Muhammad Iqbal, accused whereas according to the abductee she was boarded a bus with Muhammad Iqbal. Secondly it was contended that the allegations about zina was substantiated as the report of Chemical Examiner was found to be positive and that her age of about 14 years was duly proved through her school leaving certificate. It was, therefore, submitted that the respondent has no case for bail and as such the same should be recalled. 5. The learned counsel for the respondents, however, submitted that it was a case of further inquiry for the reason stated in the impugned order. Secondly the case had already been fixed for trial for 20.5.1996 and that the conclusion of trial is within sight. It was, therefore, urged that since the respondents did not commit any overt act after grant of bail, the efore, the recalling of bail at this stage will prejudice the trial. 6. I have considered the above submissions and find that the deeper appreciation of merits of the case cannot be undertaken at this stage. The case has already been fixed for trial and the prosecution evidence has been summoned for 20.5.1996 by the trial court. It can, therefore, reasonably be expected that the conclusion of trial is within sight. However, without touching the merits of the case, it is directed that the trial be concluded and the case be decided by the learned trial court within six weeks under intimation to the Deputy Registrar (Judicial) of this Court. If the respondents make any overt act during the trial or cause unnecessary delay in its disposal, the aggrieved party may move for cancellation of their bail, and if so moved, it shall be decided on its own merits by the appropriate forum without being influenced by this order. 7. The petition is accordingly dismissed with the above observation. 8. (M.S.N.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1715 Present: SYED DEEDAR HUSSAIN SHAH, J. CHRISTOPHER ROLLINS KELLY and 2 others-Appellants versus STATE-Respondent Spl. Criminal Appeal No. 35/1995, partly accepted on 24.7.1996. (i) Customs Act, 1969 (IV of 1969)-- —S. 156(1X8) read with S. 412 Cr.P.C.-12 Kg Heroin-Recovery of- Conviction for 5 years-Challange to-S. 412 of Cr.P.C. reveals that where an accused person has pleaded guilty and has been convicted by a court on such plea, there shall be no appeal except as to extent or legality of sentence-Learned counsel for appellant has very rightly placed his submission for reduction of sentence-Imprisonment for offence punishable U/S. 156 (1X8) of Customs Act is 14 years whereas appellants were awarded sentence for only 5 years, RI and fine of Rs. 20,00,000/- - Sentence of fine of Rs. 20,00,000/- is very harsh-Accordingly while maintaining sentence of 5 years' R.I. High Court modify sentence of fine to Rs. 5,00,000/- only or in default each of appellant shall undergo further R.I. for six months-Appeal partly accepted. [P. 1720] B & C (ii) Practice and Procedure- —There is alarming increase in drugs trafficking mainly due to lenient view in awarding sentences-It is important to state that such situation arises not from law itself but from their defective understanding and interpretation-Sentence should not be lenient as to make crime of this (drugs trafficking) nature still lucrative-Foreigners who are involved in such heinous offences are not entitled to any preferential treatment-­ Object of awarding sentence is to provide deterrent effect on others. [P. 1719] A Mr. Rana Muhammad Shamim, Advocate, for Appellants. Mr. Muhammad Roshan Essani, DAG for State. Date of hearing: 10.7.1996. judgment The Special Criminal Appeal and the Special Criminal Revision are being disposed of by this common Judgment as both are outcome of same FIR and Judgment in Case No. 161/95 passed by the learned Special Judge, Customs and Taxation, Karachi on 31.10.1995. The learned trial Judge was pleased to convict the appellants under Section 156(1)(8) of the Customs Act, 1969, on their own plea of guilt, and sentenced each of them to suffer RI for 5 years and to pay fine of Rs. 20,00,OOO/- or in default thereof to suffer further RI for 2 years. Case of the prosecution is that on the intervening night of llth/12th July, 1995 at about 3.00 am Custom Officer Abrar Ahmed intercepted the appellants in the International Departure Hall (JTC), Quaid-e-Azam Airport, Karachi, who were bound to leave for New York by flight No. PK- 721. The Custom Officer in presence of two witnesses searched the suit cases of the appellants and secured 139 polythene bags containing heroin powder out of which 45 bags (3.20 Kgs) from appellant Rolins Kelly, 32 packets (3.20 Kgs) from appellant Ms. Carrier Leigh Dempsy and 36 packets (3.6 Kgs) from appellant Ms. Jody Lynn Robledo whereas from the suit case jointly owned by the appellants 26 packets (2 KGs) were also recovered. In all the Customs Officers seized 12 Kgs. of herion powder from all the appellants. He served notices under Section 171 of the Customs Act on each appellants and also lodged FIR. After completion of the investigation the accused were challaned in the Court where they were convicted and sentenced by the trial Judge as mentioned hereinabove Hence the present appeal. On the other hand the Federal Govt. through Collector Customs filed Special Criminal Revision Application No, 10/1995 for enhancement of the sentence to RI for 14 years and fine of Rs, 5G,OQ,000/- to each appellant and in default each of them to further undergo Rl for 5 years. Mr. Rana Muhammad Shamim, learned counsel for the appellant has mainly contended that the lady appellants have recently completed their higher school education and are aged about 18/19 years respectively whereas appellant Christopher is hardly 22 years and also a student. According to the learned counsel they have committed the offence in mitigating circumstances for which they have shown remorse and repentance. He next contended that appellants are first offenders and Section 562 Cr.PC in case of first offender empowers the Hon'ble Courts to release convicted offenders on probations of good conduct instead of sentencing to punishment. According to him the appellants are foreign nationals and no useful purpose could be served by keeping them in prison except a burden on Govt. exchequer. Lastly he submitted that in case of foreign national who pleaded guilty in first instance, the Pakistani Courts have always taken a lenient view and reduced the sentence to the period already undergone by them. In support of his such contentions he has relied on cases reported in:- 1. 1976 PCr.LJ 166. 2. PLD 1977 (Karachi; 1049 3. 1983 PCrLJ 1983 4. 1987 PCr.LJ 1114 5. 1989 PCr.L.J. 840 6. 1989 PCrLJ 856 7. 1991 NLR (Criminal) 226. 8. 1991 PCr.LJ 1705. 9. 1991 NLR (Criminal) 620 10. 1992 MLD 193. 11. 1992 PCr.LJ 845. 12. 1992 MLD 1823. 13. 1993 PCr.LJ 490. 14. 1995 PCr.LJ 1296. On the maintainability of the Revision filed by the Federal Govt. Mr. Rana Muhammad Shamim has contended that under Ordinance XXXIII of 1985, Central Law Officers (Amendment) Ordinance, 1970 (VII of 1970) the Revision filed through Mr. Fariduddm, Advocate on approved panel of Central Board of Revenue is not legally maintainable. Mr. Fariduddin learned counsel appearing for the State in the Revision Application has contended that the learned trial Court has failed to appreciate the gravity of the offence committed by the Respondents/accused and had it appreciated the gravity sentence for a longer period would have been awarded. According to him as the appellants were caught red handed while smuggling 12 Kgs of heroin, the trial Court instead of awarding 14 years RI only awarded 5 years RI. Mr. Roshan Essani, learned DAG has contended that Criminal Appeal filed by the appellants is not maintainable under Section 412 of Cr.P.C except to the quantum of sentence and that young age is no ground at all for showing leniency. He his submitted that the appellants have committed a gruesome crime which is highly condemned all over the world. He further submitted that the State is duty bound to maintain the appellants in prison and provisions of Section 562 Cr.P.C. are not attracted in this case. I have gone through the material placed before me and also considered the arguments advanced by the learned counsel appearing for the parties. So far as maintainability of Special Criminal Revision is concerned it would be pertinent to refer to the relevant provisions of Central Law Officers (Amendment) Ordinance, 1985 which reads as under:- "4A. Central Law Officers to be deemed to be public prosecutors, etc. --Notwithstanding anything contained in any other law for the time being inforce, all Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel shall be deemed to be public prosecutors and shall be competent to institute, file and conduct any proceedings, including appeal and revision, for and on behalf of the Federal Government before any Court or tribunal, including a Special Court constituted under any law." I have also perused the Notification No. Dy. No. 273- JS Legal/94 dated 4th December, 1994 issued by Central Board of Revenue, Government of Pakistan in which name of Mr. Fariduddin Advocate does appear as an Advocate on Panel of Central Board of Revenue. The Revision filed by the Federal Govt. is not signed by the Collector of Customs himself but some a one else whose name and designation is not ascertainable. Furthermore, Central Law Officers (Amendment) Ordinance, 1985 authorises only Additional Attorneys-General, Deputy Attorneys-General and Standing Counsel to file appeal and revision for and on behalf of the Federal Government before any Court or tribunal including Special Courts. As such, the notification appointing Mr. Fariduddin to file the Revision as an Advocate Panel on behalf of the Federal Government does not legally entitle him to do so. Under these circumstances, I am of the firm opinion that this Revision is not maintainable. Mr. Rana Muhammad Shamim has based his arguments entirely on the fact that lenient view should be taken in deciding the Appeal, in view of the case law referred hereinabove where the Hon'ble Judges have considered the cases of the appellants before them and awarded lesser punishment in the offences involving drug trafficking. I have perused and considered the authorities referred to by the learned counsel but I may add with due respect that much water has flown under the bridge since the time the above judgments were pronounced. The drug trafficking and involvement of the people in narcotics has taken a shape of inhuman trade and it has created problems for the society at large. It is, however, pertinent to state that the national survey in drug addiction carried out by the Pakistan Narcotics Control Board, estimates the rate of addiction in the country at about over 15% amongs the youth. In 1995 the total number of addicts in the country was 3.01 million and the rate of increase is said to be 40,000 per year. The most disturbing fact revealed by the survey was the growing number of heroin addicts in the country with the average age of users between 9 to 24. According to the survey estimate, there are over 1.52 million heroin addicts in Pakistan." Over all this is very alarming situation and Courts cannot be oblivious of the circumstances prevailing across the globe. There is alarming increase in such cases mainly due to the lenient view in awarding sentences. It is important to state that such situation arises not from the law itself but from their defective understanding and interpretation. The sentence should not be lenient as to make crime of this nature still lucrative. The foreigners who are involved in such heinous offences are not entitled to any preferential treatment. The object of awarding sentence is to provide deterrent effect on others. In this regard I am fortified by the Judgment of the Honourable Supreme Court in case of Bonifacio A. Buryag u. The State, reported in PLD 1991 SC 988 where it has been held that:- "Where a legal sentence has been awarded and the discretion has been properly exercised, generally speaking, this Court seldom interferes with the sentences awarded to a convict. In the present case, in our view, the petitioner has been treated quite leniently as instead of awarding him (he being a carrier) a sentence of life imprisonment, he has been given only 7 years, rigorous imprisonment. It may be remembered that it is hardly conducive to the welfare of the society to give an impression that the Courts are more concerned with the welfare of convicts rather than that of the society. See Malik Muhammad Khan vs. The State, PLD 1987 SC 500. We may add that while awarding the sentence in a case, regard has to be had if there existed extenuating circumstances and also to the nature of the offence committed, its effects on the victim and the society. The rule of leniency while awarding the sentence is, therefore, to be applied with care and caution. Reliance is placed on Gulzar Khan vs. The State PLD 1987 SC (AJ&K) 9. In the present case there are no extenuating circumstances. The effect of smuggling, dealing and unlawful selling of narcotics on the fabrics of society is disastrous. The petitioner was smuggling heroin powder in the quantity of 8 kgs. This quantity had the potential of destroying the health and family life of a large number of people. The appellate Court has dealt with this aspect of the matter very elaborately." Reference in this regard may also be made to 1996 SCMR 247 where it has been held that:- "3. Mr. Saadat Russian, learned Depxity attorney-General appearing on behalf of the State contends that merely because respondent No. 1 had pleaded guilty does not legally entitle him to any uncalled for leniency in the matter of sentence particularly when the offence committed was of smuggling of huge quantity of 8500 K.gs of contraband narcotics. He further urged that the learned Special Judge had already dealt with respondent No. 1 very leniently and further leniency shown by the learned Chief Justice of the High Court would set the whole operation at naught. 4. The aforenoted contentions need consideration. Leave is, therefore, granted in this case." A perusal of Section 412 of Cr.P.C. reveals that wherein an accused person has pleaded guilty and has been convicted by a Court on such plea, there shall be no appeal except as to the extent or legality of the sentence. As such, Mr. Rana Muhammad Shamim has very rightly placed his submission for reduction of the sentence. The imprisonment for offence punishable under Section 156(1)(8) of the Customs Act is 14 years whereas the appellants were awarded sentence for only 5 years, RI and fine of Rs. 20,00,000/-. There is hardly any substance in the submission advanced by the learned DAG that provisions of Section 5 62 Cr.P.C. are not attracted in this case. In fact, this Section has been omitted from the Cr.P.C. w.e.f. 1.7.1961 with the Promulgation of the Probation of Offenders Ordinance (XLV of 1960). In my humble view sentence of fine of Rs. 20,00,000/- is very harsh. Accordingly while maintaining the sentence of 5 years RI I modify the sentence of fine to Rs. 5,00,000/- only or in default each of the appellants shall undergo further RI for six months. With this modification the appeal is otherwise dismissed. (K.K.F.) Appeal partly accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1721 Present: AHMED SAEED awan, J. LIAQAT ALJ-Petitioner versus STATE-Respondent Crl. Misc. No. 1571-B-96, dismissed on 9.6.1996. Bail- —S. 497 of Cr.P.C.--Murder--Offence of--Bail-Grant of--Prayer for--All caused persons including petitioner, allegedly have been attributed specific role-None of witnesses has supported plea of alibi adopted by petitioner--FER lodged promptly-Strong motive attributed to petitioner-A minor aged 4^ years was brutally murdered, indiscriminate firing was made-Prosecution witnesses have fully supported prosecution version-­ There is nothing on record except statements of political figures in favour of petitioner-Held: An accused is not to be released on bail, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years-Petition dismissed. [Pp. 1722& 1723] A Mr. Javed Iqbal Raja, Advocate, for Petitioner. Kh. Muhammad Tahir Majid, Advocate, for State. Mr. Manzoor-ur-Rehamn Khan Afridi, Adv. for Complainant. Date of hearing: 9.6.1996. order Liaqat Ali, petitioner, the accused of FIR No. 112/95, dated 10.5.1995 u/S. 302/324/452/148/149 PPC registered with P.S. Mangamandi has moved this petition for the grant of post-arrest bail. 2. According to FIR that the petitioner alongwith other co-accused armed with deadly weapons entered the dera of the complainant, Shabbir, co-accused fired at the minor Ghulam Rasool injuring his legal and bellyT while the petitioner fired on the complainant, which hit on his legs. 3. The learned counsel for the petitioner argued that the petitioner has been declared innocent in three consecutive investigations and has been placed in column No. 2 of report u/S. 173 Cr.P.C. as was not present at the time of occurrence. 4. The learned counsel for state conversely controverted the arguments of learned counsel by contending that all the six accused persons nominated in the case have been attributed specific role; the complainant received as many as ten injuries and the motive behind the occurrence is strong and is mainly attributed to the petitioner. 5. In support of his contention, the learned counsel for the petitioner relied on case Asghar Masih & others vs. The State (1995 P.Cr.L.J. 544 Lahore) and Muhammad Idrees vs. The State (1995 POr.L.J. 1911) wherein the accused persons were also found innocent in all the the consecutive investigations. It was held that though ipse dixit of the police is not binding upon the Court yet weight can be attached in the facts and circumstances relied upon case Muhammad Afzal vs. Nazir Ahmad and others (1984 SCMR 429); wherein as plea of alibi was taken and the opinion of I.O. was given weight by the learned Judge of the High Court; while dismissing appeal; their lordships observed that the relevancy to a question of bail of the opinion of the Investigating Agency would depend on the soundness of the material upon which it is based, and the prosecution has to bring to light the facts, which may furnish prima face a reasonable ground for believing that an accused though named in the FIR, is not guilty, further observed that the court could take into consideration the statement of respectable persons, such as Imam of a local mosque and the Vice Chairman of the Union Council. On the strength, of the aforementioned dictum laid in the supra case, the learned counsel pressed that due wight be attached to the statements recorded by the Investigating Officers of political figures of the area. In case Muhammad Yaqoob vs. The State (1995 Cr.L.J. 1882), this court following the dictum laid down in the case reported as Muhammad Ashrafv. The State (1971 SCMR 183); Hakim Ali & 3 others vs. The State (1979 SCMR 114); Saeed Ahmad v. The State 1981 565) and Liaqat Ali vs. The State (PLD 1974 SC 172) observed that police challan is nothing but the opinion of the Investigating Agency and his opinion cannot be treated as legal evidence at the bail stage and is not binding upon the court which can have its own opinion after examining the same and come to a different conclusion and that opinion of the I.O. holding an accused innocent cannot be made only basis for grant of bail; due weight, no doubt, is to be given to such opinion of the I.O. but the court can examine the material forming basis of the same and if it is based on inadmissible and irrelevant evidence it would not carry any eight at all; further the court, in a bail matter has the jurisdiction to call the I.O. and question him about the merits of case as observed by their lordships in case Saeed Ahmad Khan, DSP Lahore vs. The State (1992 SCMR 1369). 6. I have heard the arguments of learned counsel at length and perused the record and also put certain questions to the police officials, who have brought the record. Admittedly, the complainant had purchased some agricultural land from the petitioner and the petitioner had not given possession of part of land sold by him to the complainant, all the six accused persons including the petitioner, in case, allegedly have been attributed specific role, the deceased minor of 4 years received ten injuries; the complainant himself received then injuries while the injured PWs receive 4 to 5 injuries; none of the witnesses to the occurrence; as stated by the I.O. present in Court; has supported the plea of alibi adopted by the petitioner except the political figures of area. The FIR in case was lodged promptly; the petitioner has been assigned specific and overt act; the strong motive is attributed to him; a . minor at the age of 4 years was brutally murdered; indiscriminate firing was made; the prosecution witnesses have fully supported the prosecution version. The petitioner has been found innocent on the statement of political figures only; there is nothing on record except the statements of political figures in favour of the petitioner; the I.O. when put question in the Court remained unable to satisfy the Court with regard to the innocence of the accused. By now it is well settled law that an accused is not to be released on bail by the court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. 6. I am constrained to observe that trend of political pressure is increasing into charge of investigation from hand to hand; spoiling the prosecution case and to strengthen the hands of influential culprits; unfortunately, the I.O.'s who have the responsibility to investigate the case freely and without fear in the larger interest of state; have become tools in the hands of political figures of the area which is undesirable. 7. In view of the above discussion, I am not inclined to grant the request for grant of bail, the bail petition being devoided of merits is dismissed accordingly. (MYFK) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1723 Present: raja muhammad khurshid, J. MUHAMMAD ISHAQUE and another-Petitioners. versus STATE-Respondent Crl. Misc. No. 3098/B/96, dismissed on 30-7-1996. Bail-- —S. 497/498 of Cr.P.C. read with--Ss. 302, 148, 149 of Pakistan Penal Code» Murder-Offence of--Bail Grant of-Prayer for-Both petitioners were named in FIR and had been firing at time of occurrence-Though investigation agencies, have given two different opinions regarding involvement of petitioners, but ultimately it was decided that they should be send up for trial-There is a set of eye witnesses to support prosecution version as contained in F.I.R.--Mere fact that police was unable to recover weapons of offence from petitioners would not make it a case of further enquiry nor would entitle them to bail because deeper appreciation about merits of case cannot be made at bail stage-Petition dismissed. [P. 1724] A Mr. Humayum Mujahid Bkatti, Advocate for Petitioners. Mr. Adnan Mam Qureshi, Advocate for State. Date of hearing : 30.7.1996. Order A case under sections 302/148/149 PPC was registered against the petitioners and others vide FIR No. 63 dated 7.10.1995 at Police Station, Kotli Said Mir, District Sialkot. 2. It is contended that the petitioners while armed with pistol and 12 bore gun respectively made ineffective firing without causing any injury either to the deceased or anyone else. Hence they had a case of further investigation particularly when they were found innocent in three successive investigations conducted by the police. 3. Lastly it was contended that firearms attributed to the petitioners have not been recovered, which further show that they were implicated falsely. 4. The bail petition is opposed on the ground that both the petitioners are named in the FIR, and had participated in the occurrence alongwith the main accused who had caused injuries to the deceased. In such a situation, the petitioners were vicariously liable alongwith the main accused. The investigation conducted by the senior police officers i.e. SP and DIG had linked the accused with the occurrence and they were accordingly challenged to face the trial. 5. Lastly it was contended that the prosecution has ocular account of occurrence to support the case against the petitioners and as such they have no valid ground for bail. 6. I have considered the foregoing arguments, and have gone through the record. The perusal of FIR clearly shows that both the petitioners were named in the FIR and had been firing at the time of occurrence. The FIR further reveals that all the accused had been firing at the spot for a pretty long time even after the deceased was done to death by the main accused namely Bashir alias Fauji, Rafiq and Sajjad alias Papu with their respective weapons. In such a situation, it cannot be said that the petitioners were not vicariously liable with the main accused for the murder of deceased. Though investigation agencies have given two different opinions regarding the involvement of the petitioner in the case, ultimately it was decided that the petitioners should be sent up to face the trial. In such a situation, the opinion of the police about the guilt or innocence of the petitioners would not be relevant at this stage particularly when there is a set of eye witnesses to support the prosecution version as contained in the FIR. The mere fact that the police was unable to recover the weapons of offence from the petitioner could not make it a case of further inquiry nor would entitle the petitioners to bail on that ground because the deeper appreciation about the merits of the case cannot be made at this stage, lest it may prejudice the trial. 7. The petitioners have no case for bail at present. The petition is accordingly dismissed. (MYFK) Petition dismissed.

PLJ 1096 Cr PLJ 1096 Cr. C. (Lahore) 1725 Present: R.M. KHURSHID, J. Mst. RIFAT BIBI--Petitioner versus AMANAT ALI-Respondent Crl. Misc. No. 608/11/1996, accepted on 20.5.1996 Criminal Procedure Code, 1898 (Act V of 1898)-- —-S. 491-Infant child of one year-Recovery of-Petition for--Alleged agreement about return of dowry viz-a-viz custody of child is not relevant while disposing of petition u/S. 491 Cr.P.C.--At this stage, an interim order regarding custody of child is to be made keeping in view immediate welfare of child-He is admittedly an infant suckling child and should not be separated from his mother till matter is finally decided by court of competent jurisdiction-Held : Petition is allowed and child is given on purely temporary custody to his mother i.e. Petitioner-Petition allowed. [P. 1726] A Syed Manzoor Hussain Bukharl, Advocate for Petitioner. Ch. Mushtaq Ahmad, Advocate for respondent assisted by Ch. Fawad Shaft, Advocate. Petitioner in person with infant child namely Majlid Ali in her lap. Date of hearing: 30.5.1996. Order The report of the Bailiff is placed on record. After recovery, he had handed over the infant child to the temporary custody of the petitioner. 2. The matter primarily relates to the custody of Majid Ali an infant child of about one year of age. He was born out of the wedlock of the parties, which unfortunately ended in divorce between the spouses. 3. The learned counsel for the petitioner has submitted that the life of the infant will be endangered if he is taken out of the custody of his mother. As such it is contended that the petitioner is entitled to the custody of the child instead of the father i.e. respondent. 4. The learned counsel for the respondent has not disputed the infancy of child but has submitted that this petition is not well intended as the child was voluntarily handed over to the respondent in view of some Panchayat decision to which the parties had mutually agreed. In this connection it is alleged that the respondent had returned articles of dowry to the petitioner in consideration of the custody of t e child to her. However, the learned counsel for respondent has no objection if the temporary custody of the child is given to the petitioner provided it shall be subject to any proceeding or decision of the Court of competent jurisdiction such as the Court of Guardian Judge or the Civil Court as the case may be viz a viz custody of the child and the agreement regarding the question of dowry as based on the alleged agreement between the parties. 5. The learned counsel for the respondent has lastly submitted that the respondent being the father of the child may be permitted to see the child occasionally. 6. The learned counsel for petitioner has however, denied about the alleged agreement regarding return of dowry etc. which is allegedly result of undue influence and coercion. 1. I have heard the learned counsel for the parties. The lleged agreement about the return of dowry viz a viz custody of child is not relevant while disposing of the petition under Section 491 Cr.P.C. At this stage, an interim order regarding the custody of child is to be made keeping in view the immediate welfare of the child. He is admittedly an infant suckling child and should not be separated from his mother till the matter is finally decided by the court of competent jurisdiction. The petition is accordingly allowed and the child is given on purely temporary custody to his mother i.e. petitioner. The parties shall be at liberty to move a court of competent jurisdiction for the final settlement of issues raised in this petition. Needless to say that this order will not effect the course of the proceedings or decision of the trial court in any manner, which of course, shall be given in the light of the evidence led by the parties at trial. Parties are left to bear their own expenses. (K.K.F.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1727 Present: SAJJAD AHMAD SIPRA, J. SHATARA KHAN-Petitioner versus STATE-Respondent Crl. Revision No. 493, accepted on 29.3.1995. Surety Bond- —Surety Bond-Forfeit of-Challenge to-Contention that petitioners, illiterate and poor tenants, had stood sureties for accused, out of benevolence and humanitarian consideration and not for any monetary or personal gain-Accused had become a fugitive from law in a separate murder case and pursuant thereto he had been declared a proclaimed offender, therefore, it was humanly not possible for simple villagers, like petitioners, to ensure his production before court-Impugned orders of forfeiture of bail bonds, was oppressive and unjust and should be set aside-Held : Forfeiture of bonds, under such circumstances, shall be oppressive, hence, unjust-Petition allowed. [Pp. 1727 & 1728] A & B Malik Muhammad Suleman Awan, Advocate for Petitioners. Mr. AsifNazeerAwan, Advocate for State. Date of hearing: 29.3.1995. Judgment The petitioners stood sureties for one Muhammad Aslam, an accused in a case registered vide FIR No. 501/92 at Police Station Kanganpur, but on the failure of the said accused to appear on the date fixed for hearing, the learned trial Court cancelled his bail, forfeited surety bonds and directed the petitioners to deposit the amount surety Rs. 30,000/- each as penalty, vide order dated 7.8.1994 and appeal filed against the said order was also dismissed by the District Magistrate, Kasur, vide order dated 4.10.1994. Hence, the present criminal revision petition impugning the said two orders. 2. The learned counsel for the petitioners and the State were heard at length in respect of the contentions raised herein. The learned counsel for the State submitted that no illegality or material irregularity can be pointed out in the impugned order, therefore, no interference therewith is called for under the revisional jurisdiction. 3. The learned counsel prays for the setting aside of the impugned orders in question, by arguing that the petitioners, illiterate and poor tenants, had stood sureties for the accused Muhammad Aslam, out of benevolence and humanitarian consideration and not for any monetary or personal gain, but, in any case, as the said accused had become a fugitive from law in a separate murder case and pursuant thereto he had been declared a proclaimed offender, therefore, it was humanly not possible for the simple villagers, like petitioners, to ensure his production before the Court; and that, therefore, under such circumstances, the petitioners should not have been taken to task and the forfeiture of the bail bonds, submitted by them, vide orders impugned, was oppressive and unjust and should be set aside. 4. The Court has given its anxious consideration to the submissions made by the learned counsel for the petitions and the State. Admittedly, the accused Muhammad Aslam, for whom the petitioners had stood sureties, is a fugitive from law in a different murder case, having been declared a "proclaimed offender" and as such, it was not humanly possible for the petitioners to ensure his production before the Court; further emphasizing in this respect that even he has failed to apprehend the said accused till date, and further taking into consideration that the petitioners, illiterate and poor tenants, had stood sureties for the said accused, not for any monetary or personal gain but out of benevolence and humanitarian consideration, it is hereby held that the forfeiture of the bonds, submitted by the petitioners under such circumstances, shall be oppressive, hence, unjust. Therefore, the present criminal revision petition is allowed and the impugned orders dated 7.8.1994 and 4.10.1994, passed by the learned lower Courts, are hereby set aside. Disposed of. (K.K.F.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 1728 Present: mahboob ali khan, J. QAZI MUAHMAMD AYAZ-Appellant versus GHULAM MUSTAFA and 3 others-Respondents Crl. Appeal No. 40 of 1994, accepted on 14.7.1996. Pakistan Penal Code, 1860 (Act XLV of 1860)- —Ss. 447/427/34--Criminal Trespass-Case of-People instead of resolving their civil disputes through process of courts have chosen other way round by taking law into their own hands and settling disputes through criminal transactions, which could neither be left unnoticed nor unpunished if proved in accordance with law-No leniency should be shown to accused persons if they after going through process of trial before a competent court are found guilty on basis of evidence produced by prosecution-Accused were rightly held guilty and convicted of commission of offences U/S. 447/427/34 PPC-Appeal accepted. [Pp. 1731 & 1732] A & B Mr. Fazal Haq Abbasi, Advocate for Appellant. Qazi Muhammad Skeheryar, Advocate and Mehdi Zaman Khan, Advocate for State. Date of hearing: 14.7.1996. judgment This criminal appeal in case of acquittal filed by Qazi Muhammad Ayaz under section 417 (2) Cr.P.C. with Leave of the Court arises in the circumstances that follow. 2. On the complaint of Qazi Muhammad Ayaz, Dated 10.11.1990 prosecution of accused-respondents Ghulam Mustafa, Muhammad Idress, Muhammad Sadiq and Tahir Mehmood took place before the Court of a Magistrate 1st Class, Abbottabad on a charge under sections 447/427/34 P.P.C. The complaint was owner through purchase of a certain land measuring 4 kanals 11 marlas comprised in khasras No. 784/1, 785 in village Nawanshehr-Shamali and possessed it as such where he had also constructed a boundary wall. The accused on 2.11.1990 entered into the land by ploughing it with a tractor and dismantled also boundary wall erected around the fields by causing loss to the appellants in the sum of Rs. 20.000/- with intent to intimidate, insult and annoy the complainant. They not only remained unlawfully in the land afterwards but cultivated it also on 9.11.1990. P.W. Faqir Muhammad who happened to see the incident informed the appellant who then lodged a written complaint which after local inquiry by the S.H.O., Police Station, Mirpur came for disposal before the learned Magistrate. He formally charged the accused under section 427 read with sections 447, 34 PPC and on the conclusion of trial found them guilty of the commission of offences on both counts and convicted the respondents as under:-- All the accused were found guilty of the commission of an offence of criminal trespass under sections 447/34 PPC and sentenced (each) to 3 months S.I. They were further convicted under sections 427/34 PPC for causing damage to the boundary wall erected by the complainant on four sides of his landed property and sentenced them (each) to 6 months S.I. 3. On appeal before Sessions Judge, Abbottabad against their conviction and sentence by the accused, the learned Sessions Judge on the acceptance of appeal recorded a judgment on their acquittal by setting aside the judgment and order impugned and set the accused free, vide judgment and order, dated 9.5.1994. Hence this appeal under section 417 (2) Cr.P.C. 4. I have heard Mr, Fazal Haq Abbasi advocate on behalf of the appellant and Qazi Muhammad Shehryar advocate for the accusedrespondents. The State Counsel who was also heard supported the complainant's case. Record of the trial Court shows that Patwari Nawanshehr-Shamali has produced relevant revenue papers relating to land comprised in Khasra Nos. 784/1 and 785, The extract from the Settlement Jamabandi of 1982-83 indicates, the Qazi Muhammad Ayaz is recorded in possession of entire disputed land measuring 4 kanals 11 marlas in the cultivation column whose name is also mentioned as owner of the property in the ownership column. The same entries are repeated in the next following Jamabandi of 1986-87. Muhammad Ziafat Patwari has also produced extract from the Crops Inspection Register (Khasra-Girdawari) between the period from 6.10.1987 to 22.4.1991 which further corroborates possession of the appellant over the land in dispute. He on the spot also made demarcation of the property during inquiry proceedings and stated that the land was found in possession of the complainant. AS1 Umar Farooq during inquiry proceedings on the complaint (Ex. P.A) got demarcated the land on the site with help of the Patwari as the report Ex. P.W.1/4 shows. He further noticed remains of the wall built on the spot. He also stated of an old wall erected in the land about 15/16 years back. The ASI also stated that P.W. Faqir Muhammad resides in the nearby of the suit property. 5. P.W. Faqir Muhammad deposed that on 2.11.1990 he was present in the house adjacent to the disputed property when saw some persons removing stones from the land on which his private servant Gul Rehman informed him that a wall erected on the land was being pulled down by accused Ghulam Mustafa, Muhammad Sadiq, Muhammad Idrees and their nephew by the use of a tractor. That accused Ghulam Mustafa and Muhammad Sadiq were directing thee tractor driver to dismantle the wall while accused Muhammad Idress and their nephew were removing bricks and stones etc. in a "Rehri". That he although asked the accused to abstrain from causing damage to the complainant's property but in vain. He then went to the house of the appellant and informed in-mates of the incident. That at 3-4 a.m. on the same day Qazi Muhammad Ayaz came to his house and he narrated him he event. P.W. Faqir Muhammad had built has nearby house in the year, 1983. He has admitted that he was given approach passage for his dwelling house by the complainant. 6. Qazi Muhammad Ayaz Appellant also deposed before he Court and corroborated on all material particulars evidence furnished by Faqir Muhammad P.W. The complainant stated that on 2.11.1990 he was informed of the occurrence by P.W. Faqir Muhammad. He further testified the correctness of the contents of his report Ex. P.A. The complainant stated that a case under sections 379/427 PPC was registered against the accused about 10/11 years back on the report of his brother, namely, Muhammad Imtiaz and the accused were acquitted in that case but since after that their relations with the complainant party had remained strained. The appellant also stated that he had in fact purchased an area of 5 kanals 15 marlas of land (including the suit land) from Haji Nawal Khan out of which he subsequently sold 1 kanal 4 marlas to one Mst. Urfia Zulfiqar. The suit land was originally owned by the uncle of the accused which he subsequently sold to different persons. 7. The suit property alongwith certain other land had fallen in private partition to the share of the uncle of the accused. He afterwards sold it to different persons and an area of 5 kanals 15 marlas was purchased by the appellant from one Haji Nawal Khan out of which he himself later on sold an area of 1 kanals 14 marlas to Mst. Urfia Zulfiqar. Possession of the appellant over the land in dispute has been established not only from the oral evidence but also from the entries of the revenue record right from the Settlement Jamabandi of 1982-83. The appellant had not only got demarcated his land at the spot but also erected a wall on four sides later on. 8. It has been proved beyond any reasonable doubt from the independent evidence of P.W. Faqir Muhammad and his servant, namely, Gul Rehman that all the four accused on the fateful day trespassed criminally into the land of the appellant by ploughing it through a tractor and dismantled the boundary wall by causing him substantial monetary loss. The learned Counsel on behalf of the accused while arguing the case stated that P.W. Faqir Muhammad is an interested person as he was given a passage to his house by the appellant out of the suit land. This argument rather establishes the appellant's case by proving his possession over the land in dispute at the relevant time. Faqir Muhammad is not even a permanent resident of this place. It seems that he came and settled here some time back by constructing a house. It cannot be as such stated that he or his servant were biased and had their own axe to grind against the accused by causing their conviction on a false criminal charge. It is true that Faqir Muhammad had some litigation with the accused but it was in relation to another land sold to him by the uncle of the accused. The prosecution, in the circumstances of all this evidence, having been able to prove the case against the accused beyond any reasonable doubt, they were rightly convicted and sentenced for the commission of offences under sections 447/427/34. P.P.C. and the learned Sessions Judge on the acceptance of their appeal wrongly passed orders of their acquittal from the charge by forwarding reasons, that appellant Qazi Muhammad Ayaz was not an eye witness of the case by himself and lodged report on the information furnished by P.W. Faqir Muhammad. He similarly did not give and weight to the evidence of Faqir Muhammad or his servant Gul Rehman for no good reasons and rather entered himself into unnecessary controversy as when and where the appellant lodged report. The learned lower Appellate Court has infact fallen into error by non-reading and mis-reading of prosecution evidence in the true perspective. 9. Criminal cases like this in these days are at rampant. The people instead of resolving their civil disputes through the process of courts have chosen the other way round by taking law into their own hands and settling disputes through criminal transactions, which could, neither be left unnoticed nor unpunished if proved in accordance with law. The leniency, if any, shown on the part of the courts in dealing with such cases would rather amount to the improper discharge of conscientious duty by the Presiding Officers of the courts which undoubtedly helps indirectly and even directly to the encouragement of crimes in the society. No leniency, as such, should be shown to the accused persons if they after going through the process of trial before a competent court are found guilty on the basis of evidence produced by the prosecution. 10. In this back ground of the matter 1 see, that the accused were rightly held guilty and convicted of the commission of offences under sections 447/427/34 PPC and I would accordingly on the acceptance of this appeal, set aside the judgment and order impugned of the learned Sessions Judge recorded in appeal on 9.5.1994 by restoring that of Magistrate 1st Class, Abbottabad dated 26.7.1993. The accused on conviction on the aforesaid charges shall undergo the following terms of sentences :-- Each of the accused shall be sentenced to 3 months R.I. with fine of Rs. 500/- under sections 447/34 PPC or one month R.I. in default. They are further convicted for the commission of offences under sections 427/34 PPC and sentenced (each), to one year R.I. with fine of Rs. 5,000/- or three months R. I. in default. The sentences (recorded on two counts) shall run consecutively. The accused are committed to custody. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1732 Present: SHAFI MUHAMMADI, J. MUHAMMAD TUFAIL-Appellant versus STATE-Respondent Crl. Appeal No. 191/1992, accepted on 13.4.1995. (i) Corroboration- -—Murder-Offence of-Conviction for-Challenge to-Nevertheless name of an accused appears in an F.I.R. or not, and whether identification parade in a case has been held or not but if there are convincing corroboratory pieces of evidence to establish role of an accused with certainty for causing fatal injuries to any deceased in murder case, then conviction and sentence must be fate of such accused. [Pp. 1737 & 1738] E (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —Ss. 302, 323/506-Murder-Offence of--Conviction for--Challenge to-Complainant had added certain things in his deposition which were not mentioned in F.I.R.—Motive was fully abandoned during proceedings as well as in investigation-No recovery was affected to from accused Jahangir-Use of sarya by accused Faryad appears to be after thought or an improved statement-Doctor did not mention in his report as to which injury was fatal to cause death-Pieces of evidence fully radiates that there was no certainty about fatal injuries which caused death to deceased-General impression given by eye-witness is that all three accused caused injuries-But who caused fatal injuries ? Prosecution is silent on this part-Hence appellant is entitled to benefit of doubt, and, therefore, this appeal can be allowed on this score alone—Appeal allowed. [Pp. 1735,1738 & 1739] A, B, C, D, F, G & H Mr. Ch. Iftikkar, Advocate for Appellant. Mr. Zaheer Ahmad Qureshi, Advocate for State. Dates of hearing 18, 21 and 27.7.1994. judgment On conclusion of the hearing of this appeal I had reserved the judgment on 26.7.1994 and then by a short order dated 11.8.1994 I allowed this appeal by setting aside the conviction and sentence of appellant Muhammad Tufail. I now proceed to record my reasons for the same. 2. The appellant, alongwith Faryad Ahmed and Muhammad Jahangir, was tried on a charge under section 302 PPC by the 1st Additional Sessions Judge Karachi (West) and on being found guilty, vide judgment dated 2nd August, 1992, was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs. 30,000/- ( in default thereof three years R.I). Other accused namely Muhammad Jahangir and Faryad Ahmed were given benefit of doubt by the learned A.D.J. and hence they were acquitted under section 265-H Cr.P.C. 3. The prosecution case high-lighted in the impugned judgment, the paper book and the F.I.R. consists of two versions particularly about lodging of the F.I.R. These two versions can be summarised as under: (a) On 1.1.1983 at about 3.30 p.m. complainant Sawardeen and deceased Muhammad Siddique were sitting on a "Thalia" (plateform) situated in New Saeedabad Naiabadi Karachi when appellant and other two accused came there. Appellant Muhammad Tufail said to deceased Muhammad Siddique that he was speaking ill against his daughter and had thus defamed her. The deceased replied in negative but the accused started inflicting "Danda blows" at Muhammad Siddique and abused him. The complainant tried to rescue Muhammad Siddique but they started beating him too with wooden sticks. Thus the complainant was also injured. The deceased had received injuries on his head, nose, feet and other parts of his body. The injured reached police station to lodge a report. The police wrote a non cog report at 1630 on 1.1.1983 being report No. 36 under section 323/502 PPC in the station diary. After lodging this report, the complainant said that he wanted to go to hospital for medical treatment. The said report was, later on incorporated as F.I.R. No. 1/83 after receiving information from Dr. Hassan on 2.1.1983 at 1020 hours that injured Muhammad Siddique had expired. It is thus evident from this version that only appellant Muhammad Tufail was specifically mentioned in the report but for the remaining two persons the complainant had used the words "other two accused". (b) The second version of the complainant came into light when he was examined in the court on 9.8.1984 wherein he stated that: "Accused Farvad was armed with Sarva. accused Tufail was armed with danda and Jahangir was empty handed. Accused Tufail spoke to the deceased Siddique that deceased was speaking ill about his daughter as such deceased defamed his daughter. The deceased did not reply but accused Faryad hit deceased with Sarya on the head of the deceased. Accused Jehangir and Tufail gave lathi blows to the deceased. I intervened to save Siddique. I received injuries on the head. Who caused me injury I cannot say. All the three accused caused me injury. I became unconscious. I then went to the police station Baldia Town. I lodged F.I.R. there. (Underlining is my own) 4. The difference between the two versions can be easily realised by every sensible person but notwithstanding the contradiction as underlined in the preceding para, the important question before this court was as to how the complainant could lodge the said report if he was unconscious. It could be presumed that the complainant had gained consciousness and then went to the police-station to lodge the report. But this presumption is fully shattered by the complainant himself in his cross-examination. Different pieces of evidence from his deposition can be referred in support of this reality which run as under : (i) "Police then sent me and injured Muhammad Siddique to Abbassi Shaheed Hospital " It means that accused Muhammad Siddique had also reached the police station before leaving for hospital or before his death. (ii) "I had given the names of all accused in my report. Police had read over contents of the report to me but the report which I had made was not written by the police .............................................. " It shows that the complainant had added certain things in his deposition which were not mentioned in the F.I.R. (iii) "It is correct to suggest that defamation of the girl was not reported to the police before the incident." It is noticeable that this motive was fully abandoned during the proceedings as well as in the investigaJ'jn. (iv) "It is incorrect to suggest that I had not mentioned in my police report that the accused Faryad had Sarya in his hand. I had mentioned to the police but it was not written by the police " The use of Sarya was not proved in the case. (v) "I became unconscious when I received injuries. I gained consciousness in the hospital. I regained consciousness at about 5.30 or 6 p.m. in the hospital...." If report was lodged after 6 p.m. then time mentioned in the F.I.R. was incorrect. (vi) The danda (stick) was brought by the father of accused Jahangir. It means no recovery was affected from accused Jahangir. I If the facts mentioned in the above quoted pieces of deposition of the complainant are treated to be true then the facts mentioned by the same complainant that he and the deceased reached P.S. first and lodged the report at 1630 hours are totally falsified. The reason is obvious. The report could be lodged after 1800 hours and not at 16.30 if the complainant had gained consciousness 6 p.m. Similarly recovery of danda (stick) was made from father of accused Jahangir and not from the accused himself. It shows doubtful recovery or defective investigation. The use of sarya by accused Faryad appears to be after thought or an improved statement. Hence it is evident that the prosecution case as narrated in the noncog report or in the cognizable report lodged after the death of deceased Muhammad Siddique was fully shattered by the complainant during his examination in the Court. 5. It is important to point out that the learned trial court was also not unaware of these conflicting pieces of evidence and therefore it observed that: "As far accused Muhammad Jehangir and Faryad Ahmed are concerned their names do not appear in the F.I.R. and no identification parade was held in this case, besides that there are contradictions regarding their weapon in F.I.R. and deposition of complainant, hence doubt is created if they were the companions of co-accused Muhammad Tufail." On the strength of these observations, the learned trial court acquitted to co-accused but did no give this benefit to the present appellant. 6. Thus a question arises on what piece of evidence the present appellant was convicted and sentenced if the complainant's statement had been treated un-believable in the cases of two co-accused persons. The prosecution in support of its case had examined following witnesses besides the complainant. (i) Fazal Ahmed (P.W.-2) claimed to be eye-witness but the learned trial court did not believe him and made the following observations about him. "Under the circumstances the version of P.W. Fazal Ahmed that he witnessed the incident cannot be accepted as correct. His evidence to the extent that he witnessed the incident, therefore, cannot be believed." (ii) Allah Jawaya (P.W.-3) stated in his deposition as under: "I did not see any body giving them injuries." (iii) Muhammad Suleman (P.W.-4) is a formal witness to identify dead body of Muhammad Siddique. (iv) Jabbar Hassan (P.W.-5) is an A.S.I. who recorded non-cog report at 1630 hours. (v) Ghulam Muhammad (P.W.-6) is a formal witness in whose presence blood was secured from the place of incident.] (vi) Ata Muhammad (P.W.-7) is a formal witness who identified dead body of the accused. (vii) Muhammad Riaz (P.W.-8) is a formal witness who had visited the place of ward after dead body was brought from the hospital. (viii)Abdul Rehman (P.W.-9) is a chance witness. (ix) Dr. Khalil Ansari (P.W-10) had carried postmortem of the deceased on 2.1.1983 at 4 a.m. (x) Basheer Ahmed Bhatti (P.W-11) is witness of arrest of accused/appellant Tufail. (xi) Rao Nawaz (P.W.-12) is 1.0 of the case after the matter was handed over to him for the purpose of investigation. (xii) Ali Gohar (P.W.-13) was the first I.O. who had done initial investigation before handing over the case to P.W.12. 7. The summary of evidence of all these witnesses leaves no doubt for me that the only witness who could be relied upon to convict the present appellant was complainant Swardin. But, admittedly the said witness was not relied upon regarding his statement about other two co-accused who were, thus, acquitted by the court. Hence the important question before this court is as to why he should be believed in the case of present appellant. It may be .necessary to point out that judgment of the learned trial court for acquitting the two accused was found in to be based on the following grounds: (i) Their names were not mentioned in the F.I.R. (ii) Their identification parade was not held and (iii) There were contradictions in the F.I.R. and deposition of complainant regarding the weapon used incident. I have no hesitation to hold that these grounds are neither sufficient to convict nor to acquit an accused. Nevertheless the name of accused appears in an F.I.R. or not, and whether identification parade in a case has been held or not but if there are convincing corroboratory pieces of evidence to establish the role of an accused with certainty for causing fatal injuries to any deceased in murder case, then conviction and sentence must be the fate of such accused. 8. There were several important fact-ors for discussion to decide the fate of present appeal but, instead of burdening this judgment with all those points, I would like to discuss only two points which touch the roots of this appeal. These two points can be summarised as urider : (a) If it was only the appellant who had reached the place of incident then it cannot be believed that he could injure the complainant as well as the deceased solely. And if there were three accused, as stated by the complainant, then the most important question for the trial court was to find out who had caused fatal injuries to the deceased. In this case it is astonishing that the doctor did not mention in his report as to which injury was fatal to cause death. F Regarding this aspect I would like to reproduce some pieces of evidence from the deposition of the doctor (P.W.10) which run as follows : (i) "I have not stated in my opinion that all the injuries collectively and/or individually any of them were sufficient to cause death in ordinary course of nature." (ii) It is correct that first I had replied that no injury individually was sufficient to cause death but when discussion was _held._wlAJJ^lJlg court the point registered with me and I replied that injuries No. 2. 3 and 4 were individually sufficient to cause death." (iii) It is correct that first I had given the probable time between injury and death as some 8 to 24 hours but later on, account of discussion by the court I said that I cannot say the time between injury and death. After consulting the postmortem report Ex. 22 I still say that I am unable to give the time probable which elapsed between injury and death. (iv) The correct position is that none of these injuries were sufficient individually to cause death in ordinary course of nature. These pieces of evidence fully radiate that there was no certainty about the fatal injuries which caused death to the deceased. It appears that the learned trial court <.,A also realised the consequences of this important factor and therefore, it did its best to get few replies from the said doctor by putting court questions. As a result of those questions, the doctor stated at one stage that injuries 2, 3 and 4 individually or collectively was/were dangerous. But, it is interesting to point out that the said doctor resiled from this statement in the last stage by saying that "the correct position is that none of these injuries were sufficient individually to cause death in ordinary course of nature. If it is presumed that injuries 2, 3 and 4 individually or collectively were dangerous and sufficient to cause death even than there is no evidence on record to put responsibility with certainty on the present appellant that it was he who had caused those injuries to the deceased. In my view even if it is certain that out of two accused one had caused fatal injuries to the deceased but if it is not certain as to who caused those injuries to the deceased then none of them would be convicted under the charge of murdering the deceased. Same is position in the present appeal. The general impression given by the eye-witness is that all the three accused caused injuries. But who caused fatal injuries ? The prosecution is silent on this part. Hence the present appellant is also entitled to benefit of doubt and, therefore, this appeal can be allowed on this score alone. (b) The second point for allowance of this appeal relate to the motive of murder. It is an admitted position that although there is mention of motive yet there is absence of proof of motive. Motive can play a role of double edged weapon but when the same is completely abandoned then it becomes necessary to scrutinize the credentials of the evidence of prosecution witnesses. In the present case there is not a single sentence in the deposition of any of the prosecution witnesses in support of the motive which was mentioned by the complainant at different stages. Hence I have no hesitation of hold that the prosecution had failed to prove its case beyond reasonable doubt against the appellant and therefore, conviction and sentence awarded by the learned trial court to the appellant was not based on sound appreciation of evidence. 9. An these were the reasons for passing a short orders as embodied in part 1 of the judgment. (K.K.F.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1740 Present: rasheed A. razvi, J. BASHIR OLANRELA ABATAIN-Appellant versus STATE-Respondent Spl. Crl. Jail Appeal No. 44 of 1994, partly accepted on 8-8-1996. Customs Act, 1969 (IV of 1969)-- —S. 156(1X8) read with S. 412 Cr.P.C.-6 Kg Heroin-Recovery of--Convic- tion for 6 years R. I.~Challenge to—Under provisions of S. 412 Cr.P.C. having pleaded guilty, appellant could not question judgment on merits- However, appellant could be considered only for purpose of reduction of sentence-There is nothing illegal or improper to sentence awarded to appellant, therefore, appeal absolutely merits no consideration, same is rejected-However, one part of sentence to be a little harsh i.e. amount of fine and imprisonment awarded in lieu thereof-Amount of fine is reduced from Rs. 100,000/- to Rs. 25.000/- and in default in payment of fine, appellant shall undergo imprisonment for 6 months more-Appeal partly accepted. [P. 1741] A & B Ch. Muhammad Iqbal, Advocate for Appellant. Mr. Roshan Issani, D.A.G. for State. Date of hearing 8.8.1996. judgment This Spl. Cr. Jail Appeal was filed by the appellant Bashir Olanerla Abatan, a foreign national, who had been convicted on his place of guilt by the Special Judge (Customs & Taxation) on 2.10.1994. The allegation against the appellant was that when he was leaving for Addis Ababa by Ethopian Airline on 17-9-1994 he was intercepted by Customs Authorities at the departure hall of Jinnah Terminal, Karachi Airport. His baggage comprised of 11 cardboard cartons containing 242 Starvac Vacuum Flasks. On search in presence of mashirs 6 kilograms of brown colored heroin powder was found from the cavities of these vacuum flasks. Appellant was arrested and after necessary formalities were completed he was produced for trial before the Court of Special Judge Customs & Taxation Karachi. The appellant was charged with the offence of having made an attempt to smuggle out of Pakistan 6 kgs. of heroin powder, an offence punishable under section 156 (1) (8) of the Customs Act of 1969. This charge was read out to him by the Judge on 2.10.1994. In reply to this charge, the appellant pleaded guilty and apart from his oral acceptance of the plea which he himself signed, he also moved an application in writing in his own hand in which also he having pleaded guilty to the charge requested the Court to show mercy and pass a lenient sentence against him in the name of Almighiy Allah. The Court considering the genuineness of the plea passed the sentence of 6 years R.I. coupled with a fine of Rs. 100,000/-. In case of default in payment of fine, the appellant was ordered to undergo further R.I. for 2 years. 2. From the Jail the appellant submitted this appeal, which is written on 3 pages on full-scaps paper entirely in his own hand-writing, which is also very fine and beautiful hand-writing. In this Memo of Appeal he had pleaded for mercy and explained how he committed this offence. The substance of his explanation was that he came to Pakistan through Wagha Border from the city of Amritsar with the purpose of doing business in the field of fashion accessories and other general oods which he wanted to sell in African Markets. He further stated in his Memo of Appeal that he had another partner in this business, namely Rahman Adegoke, who had given him the consignment and he was taking that consignment out of Pakistan when he was intercepted and heroin was recovered. He admits that heroin was recovered from that consignment but that it was his stupidity having accepted the consignment without knowing its contents. Further he pleaded for mercy in the memo of his appeal. 3. Under the provisions of Section 412 Cr.P.C. having pleaded guilty, the appellant could not question the judgment on merits. However, the appellant could be considered only for the purpose of reduction of the sentence. 4. I have heard the learned counsel for the appellant and the appellant himself was also given a chance to address the court. The appellant himself appears to be a literate person and is very fluent in English. He repeated the same plea which he has taken in his memo of appeal sent from jail. I have also heard the learned D.A.G. who vehemently opposed any concession to the appellant in his sentence. This is a clear case where an attempt to smuggle heroin out of Pakistan was made unsuccessful by the Customs Authorities. 5. After having considered the case from all angles I do not find anything illegal or improper to the sentence awarded to the appellant and, therefore, appeal absolutely merits no consideration, the same is rejected. However, one part of the sentence has been considered by me to be a little harsh i.e. the amount of fine and the imprisonment awarded in lieu thereof. The amount of fine is reduced from Rs. 100,000/- to Rs. 25,000/- (Rupees twenty five thousand only) and in default in payment of fine, it is ordered that the appellant shall undergo imprisonment for 6 months more. I have also kept in mind that the trial Court has given the benefit of Section 38 2-B Cr.P.C. to the appellant. With this modification in the sentence the appeal is dismissed. (M.S.N.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1742 (DB) Present: khalilur herman ramday and raja muhammad khurshid, JJ ABDUL KARIM-Appellant versus STATE-Respondent Criminal Appeal No. 68 of 1991 (M.R. No. 209 of 1991) and Criminal Revision No. 472 of 1994, decided on 6.3.1996. (i) Interested witnesses- —Murder and murderous assault-Offence of-Conviction for-Challenge to- -It is true that eye-witnesses are closely related to deceased-It is to be seen if they would like to implicate accused falsely and leave actual killer to escape un-punished-There is no chance for substitution of accused in this case-Held: Mere relationship of eye-witnesses with deceased cannot be considered sufficient to discredit their testimony particularly when they are corroborated by an injured witness and also by recovery of weapon of offence which has been found wedded with crime empty by ballistic expert-Held further: Prosecution has proved case against appellant beyond reasonable doubt. [Pp. 1745, 1746 & 1749] A, B & C (ii) Mitigating circumstance- —Murder and murderous assault—Offence of—Conviction for—Challenge to- -Question of sentence needs consideration-First part of motive appears to be far-fetched because nothing had happened for about 3% decades-It cannot be treated as an immediate cause for present occurrence-Second part of motive is similarly shrouded in mystery and immediate cause of occurrence remains uncovered and un-revealed-Sentence of death converted into sentence of imprisonment for life—Death not confirmed. [P. 1749] D M/s Muhammad Anwar Raja and Irfan Ahmad Saeed, Advocates, for Appellant. Syed Fazal Hussain Jaffery, Advocate, for State. Mr. Ghous Muhammad Chaudhry, Advocate for Complainant. Date of hearing: 6.3.1996. judgment R.M. Khurshid, J.--The appellant namely Abdul Karim was arraigned under section 302/307 PPC for commit .ii-ig the murder of Muhammad Gulzar deceased and murderous assault or- Ishrat Abbas for an occurrence, which took place at about 9.30 PM on 3.5.1y88 in the field owned by Muzaffar Shah and cultivated by the appellant Abdul Karim in the area of Police Station, Golra District Islamabad. 2. On trial the appellant was convicted under section 302 PPC and sentenced to death and a fine of Rs. 5.00Q/- or in default to undergo one year R.I. He was also ordered to pay compensation awaiting to Rs. 10,000/- or in default to further undergo RJ. for 2 years. He was also convicted under section 307 PPC for committing murderous assault upon Ishrat Abbas PW and was sentenced to 5 years R.I. and a fine of Rs. 3,000/- or in default to suffer six months R.I. The compensation of Rs. 2,000/- was directed to be paid to the injured PW or in default to undergo four months R.I. 3. The conviction and sentence aforementioned was made by Mr. Abdul Hamid Khan Kliatak, the then learned Additiqnal Sessions Judge, Islamabad vide his judgment dated 29.4.1991. The learned Trial Judge has made a reference under section 374 Cr.P.C. for the confirmation of death sentence awarded to the appellant namely Abdul Karim. 4. The convict Abdul Karim has filed this appeal against his conviction and sentence. The complainant Muhammad Sadiq filed Criminal Revision No. 472/94 for enhancing the sentence of fine under section 302 PPC from Rs. 5,000/- to Rs. 1,00,000/- and also to enhance the sentence of imprisonment from 5 years R.I to 10 years R,I. 5. The Murder Reference and the Criminal Revision are proposed to be decided vide this judgment. 6. The brief facts are that Muhammad Sadiq made a statement Ex. PG before Khurshid All S. I at, 10.30 PM at the spot in which he contended hat he was mployed at POP Wa'fi Cantt. and was resident of village Jori. He used to attend his duty in the morning and return to home at 4.00 PM after the working hours were over On the day of occurrence he came to the house of Bashir Ahmad resident of quarter No. 15, Wah Cantt in order to attend an Iftar Party. He attended the party and after taking his meals he reached his home at about 9.30 PM. He reached to the Bathik of his paternal uncle Karam Buksh as there was gathering of the people from his brotherhood. On reaching there, he learnt that there was some quarrel between the people of his brotherhood with the people of "Karal" brother­ ood. He came to know that some persons were injured from both sides. His paternal uncle Sultan Ahmad went out to urinate towards southern fields. After urination he reached near the field of Muzaffar Shah which was under the cultivation of appellant Abdul Karim, who raised a lalkara that he would teach a lesson for passing from his field. On hearing the lalkara the complainant alongwith his maternal uncle Gulzar deceased and Ishrat Abbas injured PW proceeded towards Abdul Karim appellant, who was armed with a single barrel 12 bore gun. The appellant fired from his gun at the deceased Muhammad Gulzar thereby causing pellet, injuries on his left arm and chest. Some of the pellets caused injury to Ishrat Abbas PW near his scrotum. The deceased fell on the ground on receiving- aforesaid injuries. The appellant made an attempt to re-load his gun. but was over powered by Muhammad Sadiq complainant, who managed to snatch the gun from him. The complainant and other persons present there namely Abdul Rashid, Muhammad Jan, Sadaqat Mahmood and Muhammad Hanif all residents of the village got attentative towards the deceased as the latter was seriously injured. The appellant taking advantage of the situation managed to escape. 7. The bone of contention had arisen about 35/40 years back when the paternal grand mother of the appellant Abdul Karim was murdered by the elder brother of the father of the complainant namely Raja Muhammad Akram, Ali Ahmad and Muhammad Ishaq. All the aforenamed three offenders were acquitted. Secondly there was some quarrel between the two brotherhoods in the preceding evening for passing over the fields of each other, in which some persons were injured from both sides. The appellant ad murdered the deceased and committed murderous assault upon Ishrat Abbas PW to take revenge of the aforesaid two incidents. The police had eached the spot after learning the quarrel whereupon statement Ex. PG was made by the complainant at 10.30 PM before SI. Khurshid Ali PW-13. He also produced 12 bore gun which he had snatched from Abdul Karim appellant. The formal FIR Ex. PG/1 was brought on record, which was registered at the police station on the same day at 11.15 PM. 8. The prosecution had examined the complainant Muhammad Sadiq as PW-7. He is related to the deceased being a son of sister. He had lodged the report as an eye witness. The other eye witnesses namely Abdul Rashid, a real nephew of the deceased being his brother's son, was but in the witness box as PW-8. The injured PW namely Ishrat Abbas was examined as PW-9 in support of the prosecution case. The remaining eye witnesses namely Muhammad Jan, Sadaqat Mahmood and Muhammad Hanif were given up. 9. Apart from the ocular account of occurrence, the police had collected the blood stained earth from the spot on 4.5.1988 vide memo Ex. PF. The crime empty P8 was taken into possession on the same day vide memo Ex. PM in the presence of Khyzar Hayat constable PW-5 and Khurshid Ali S.I. PW-13. The third witness namely Muhammad Razzaq was however, given up. The 12 bore gun P7 snatched from the accused by the complainant was produced by him before Khurshid Ali S.I. aforesaid who took it into possession, vide, memo Ex. PL attested by Muhammad Sadiq complainant and Muhammad Gulistan given up PW. The gun P7 was a licenced gun of appellant Abdul Karim and its licence P9 was taken into possession vide memo Ex. PJ on 6.5.1988. 10. The crime empty and the gun were sent for examination to Forensic Expert through Khyzar Hayat PW-5. The report of Forensic Expert Ex. PR showed that the crime empty matched with the weapon of offence i.e. 12 bore gun used by the appellant to commit the occurrence. The report of the Chemical Examiner and Serologist indicated that blood stained earth was stained with human blood. 11. The accused was examined under section 342 Cr.P.C. and he took up the plea that the complainant side was aggressor as they had caused injuries to Muhammad Azim and others. During melee Abdul Rashid from the complainant side fired at Muhammad Azim, and others which hit Muhammad Gulzar deceased and Ishrat Abbas injured PW. The police party arrived at the spot and joined hands with the complainant party. The injured persons from the accused side were also got examined, but their case was not registered as the police had colluded with the complaint party. The accused party had therefore, instituted a complainant Ex. DE through Muhammad Azim against Sultan Ahmad, Karam Bukhsh, Abdul Rashid, Muhammad Jan, Sadaqat Mahmood, Nasib Akhtar, Noor Elahi and Muhammad Hanif under section 307/325/148/149 PPC, which was also pending in the same court. It was, therefore, contended that in fact the complainant party was the aggressor and due to their own firing the deceased was killed whereas Ishrat Abbas was injured. 12. We have heard the arguments of the learned counsel for the parties. It is to be seen if the prosecution has been able to prove its case beyond any reasonable doubt. 13. The p osecution has examined eye witnesses, medical evidence and witnesses of recovery relating to the weapon of offence. First we discuss the ocular account of occurrence which consists of three witnesses namely Muhammad Sadiq complainant (PW-7), Abdul Rashid (PW-8) and Ishrat Abbas (PW-9)/ injured witness. The first objection taken by the appellant is that these witnesses are related to the deceased and as such would be considered as interested witnesses. Similarly it was alleged that they were inimical to the accused party because of the reasons given in the motive. It was, therefore, urged that the evidence of these witnesses was of no use to the prosecution. The learned counsel from the other side contended that though the witnesses were related, but their evidence could not be discarded as they were also natural to see the occurrence. It was further, contended that they were supported by the recovery of weapon of offence i.e. 12 bore gun P7, which was found wedded with the crime empty picked up from the spot. The medical evidence also supported the occurrence narrated by the eye witnesses and therefore, their could be no reason to condemn them only because they were related to the deceased. 14. It is true that Muhammad Sadiq (PW-7) was the sister's son of the deceased and Abdul Rashid PW-8 was a nephew being brother's son of the deceased. As such they were closely related to him. However, it is to be seen if they would like to implicate the accused falsely in this case and would leave the actual killer to escape un-punished. The natural instinct on their part would be that real culprit, who had killed the deceased should be brought to book. Therefore, there is no chance for substitution of the accused in this case. Hence the testimony of these witnesses cannot be discarded only because they are closely related to the deceased. A point was raised that Muhammad Sadiq PW-7 was a chance witness as he was employed in POF Wah Cantt and could not be present in the village to see the occurrence. The witness has give his explanation for his presence in the village as he usually returns every day at 4.00 PM by bus. On the day of occurrence he returned from the place of his duty to his village at about 9.30 PM because his friend Bashir Ahmad PW had invited him to " Iftari' at his house in Wah. This part of his statement is corroborated by Bashir Ahmad PW-15, who stated that Muhammad Sadiq PW had attended Iftari at his house and remained with him till 8.15 PM and then returned to his village by a Wagon. The aforesaid witness has no animus against the accused so as to state falsely against him. Though he is employed in the same office, but that would not make him interested witness nor it will be unusual if he had given Iftar Party to the complainant as colleague So there can be no possibility to support the allegation that the complainant was chance witness. 15. Like-wise the presence of Abdul Rashid PW-8 cannot be doubted as he was also preset at the Bet ink of Karim Bukhsh after Iftari. He was also involved in the occurrence relating to the motive, which took place at 6.30 PM in which both sides had used sotis and resorted to brick batting against each other whereby some persons from both aides sustained injuries. Some persons from the complainant side were waiting for a suzuki van for removing the injured to the hospital and informing the police. In the meantime at about 9.30 PM the presence occurrence took place when the uncle of the complainant Sultan went out for urination and was confronted by the accused at the place of occurrence. The witness was also attracted to the spot and had seen the occurrence as deposed by him, in his statement as PW-8. His presence therefore, cannot be doubted under the situation. The next eye witness namely Ishrat Abbas PW-9 sustained injuries during the main occurrence at the hands of the appellant/ convict and-therefore, his physical presence cannot be excluded. The injuries on his person fired from the gun P7 used by the accused/convict is sufficient corroboration to his ocular account of occurrence and also to the remaining two witnesses. In the situation, the mere relationship of the eye witnesses with the deceased cannot be considered sufficient to discredit their testimony particularly when they are corroborated by an injured witness and also by the recovery of weapon of offence which has been found wedded with the crime empty by the ballistic expert. The injuries on the person of the deceased were noticed by Dr. Hamid-ud-Din (PW-1) as under: EXTERNAL INJURIES (1) Six wounds of entry each measuring (i) c.m in diameter in an are of 10 x 8 c.m in anterior and outer upper aspect of chest 3 c.m outer to nipple. There was blackening around the wound margins, which was due to blood clot. (2) Two wounds of entry in front of left upper arm measuring 1 c.m in diameter adjacent to each other about 15 c.m from tip of acromian. (3) Three wounds of entry in front of left arm 6 c.m below injury No. 2 measuring 1 c.m. in diameter around the wound margin. WOUND OF EXIT In chest four in number on the back of left side of 10 x 7 c.m. (1) 2 c.m. x 1 c.m situated superiorly about 12 c.m from the inferior angle of scapula. (2) 1 x 08 c.m inferior to injury No, 1 about 13 c.m. from inferior angle of scapula. (3) 1 x 08 c.m still inferior and lateral about 15 c.m from inferior angle of scapula. (4) 1 c.m x 3.8 c.m situated to above wound 6 c.m from inferior angle of scapula. According to the opinion of the Medical Officer the deceased succumbed to the injury to the chest resulting in massive haemorrhage and instant shock causing damage to vital organs (Lungs). This injury was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and caused by firearm. The time which elapsed between the injury and death was about half an hour and between death and post mortem 12 to 24 hours. The post mortem report was Ex. PA and sketch of the injuries was Ex. P.A/1. 16. The injured was examined by Dr. Muhammad Aslam Khan (PW-11) who had observed the following injuries on his person; "Circular wound left scrotum (upper part) with moderate swelling of scrotum. No surrounding tatooing or burning seen. There was related tear of Shalwar (multiple holes). No exit wound seen." Since the doctor could not found exit wound, therefore, he referred the matter to Radiologist, and Surgeon. The Radiologist was examined as PW-14, as he prepared the X-Ray film Ex PQ pertaining to Ishrat Abbas. The doctor found a solitary bullet in the right ingunal region. 17. It is clear from the medical evidence that Ishrat Abbas was present and had received pellet injury during the occurrence. A perusal of injury No. 1 on the person of the deceased shows blackening around the wound margins, due to blood clot. It shows that injury was caused from the close range. Therefore, the objection from the defence side would be of no avail regarding the identity of the assailant. If the fire was made from such a close range, then in a moon-lit night the assailant could be easily identified not only from his physical appearance, but also from his voice as he was shouting lalkara. In such a situation, the plea regarding the identity of the assailant is of no use to the appellant/convict who was present at the spot to commit the occurrence by causing lalkara and using his licenced gun P7. FIR was also promptly lodged, which is a further corroborative circumstance in favour of prosecution story. 18. After discussing the ocular account of occurrence in the light of medical evidence, we consider the question of motive in this case. The motive has also two parts. The first part relates to the murder of Mst. Irm Noor alias Ram Noor about 40 years ago. She was the paternal grand mother of the appellant/convict. Muhammad Akram, Ali Ahmad and Muhammad Ishaq were challaned and acquitted. They were the relatives of the complainant side. The second part of the motive was that on 3.5.1988 Abdul Rashid PW objected to the passing of niece of the accused from his fields while she was on her way to fetch the water. This objection led to the quarrel in the evening on 3.5.1988 at 6.00 P.M. due to which the persons from both sides were injured. 19. The first part of the motive relates to an occurrence, which took place about four decades back and thereafter nothing substantial happened, till 3.5.1988 i.e. till the unfortunate night had fallen. The trouble started towards the evening time, which ultimately resulted into the murder at about 9.30 PM. According to the defence there was single occurrence which had taken place at 'Taraveh wela' in which the complainant side had committed aggression and had caused injuries to the appellant/accused and is party-men for which criminal complaint Ex. DE was lodged by Muhammad Azim under section 307/325/148/149 PPG against Sultan an Ahmad and 7 others. It was therefore, submitted that during the melee Abdul Rashid fired a shot at the aforesaid complainant namely Muhammad Azim and others which hit Muhammad Gulzar deceased and Ishrat Abbas who sustained injuries. 20. A question would arise whether there could be possibility of one or two occurrences. In this regard, the prosecution has led a specific and positive evidence that the first occurrence had taken place at 6.30 PM followed by the second occurrence at 9.30 PM. The plea of the defence that there was only one occurrence stands negated because the gun used for killing the deceased and causing injuries to Ishrat Abbas PW belonged to the appellant/convict for which he holds the licence. It was snatched from him as e wanted to re-load it but he could not do so being over powered. The same was produced before the police by Muhammad Sadiq complainant after snatching the same from the accused at the time of occurrence. It was not probable that Abdul Rashid would spare the other side of fatal injuries, but would kill his own man and will cause injury to the other fellow by making shot from his gun. The complainant was not in a position to produce any such gun used by Abdul Rashid, but the prosecution produced the gun belonging to the appellant/convict which also matched the crime empty thereby providing scientific corroboration that it was used during the occurrence. In such a way it can be safely said that the story of aggression advanced by the defence is neither probable nor convincing so as to create any doubt in the prosecution. 21. In view of our above discussion, we come to the ultimate conclusion that the prosecution has been successful to prove its case beyond any reasonable doubt against the appellant/accused. The conviction under section 302 PPC for committing the murder of Muhammad Gulzar and under section 307 PPC for committing murderous assault upon Ishrat Abbas is upheld. 22. The question of sentence needs consideration. The first part of the motive appears to be far-fetched because nothing had happened for about 3h decades. Hence it could not be treated as an immediate cause for the present occurrence. The second part of the motive is similarly shrouded in mystery as the immediate cause of the occurrence remains un-covered, and un-revealed. The sentence of death under section 302 PPC awarded to the appellant/convict is therefore, converted to sentence of imprisonment for life. The sentence under section 307 PPC awarded to the appellant/convict for injuring Ishrat Abbas PW is maintained. The death sentence is accordingly not confirmed. Murder Reference No. 209/91 is decided accordingly. 23. The appeal is dismissed with the above modification in sentence. The sentence of imprisonment for life under section 302 PPC and sentence of 5 years R.I. under Section 307 PPC shall run concurrently. The benefit of section 382-B Cr.P.C. is extended to the appellant. 24. Criminal Revision No. 472/94 was filed by the complainant for enhancing the fine from Rs. 5,000/- to rupees one lac. It was also to be heard alongwith the present appeal. We called upon the learned counsel for the appellant, who accepted the notice in that Revision. Keeping in view the circumstances of the case, it would be just and proper if the fine is enhanced form Rs. 5,000/- to Rs. 25,000/-. We order accordingly. In default of payment of fine, the appellant shall suffer further R.I for six months as the sentence of two years is not warranted by law. The fine of Rs. 25,000/- if realized shall be paid as compensation to the heirs of the deceased in addition to the compensation of Rs. 10,000/- already awarded by the trial Court. The revision petition is accepted partly to the extent of enhancement of fine from Rs. 5,000/- to Rs. 25,000/- for sentence under section 302 PPC, but is dismissed in espect of prayer for enhancement of sentence from 5 years R.I to 10 years, R.I. upon conviction of appellant under section 307 PPC. The revision petition is accordingly decided. (ZB) Orders accordingly.

PLJ CRC1750 [Multan Bench] PLJ CRC1750 [ Multan Bench] Present: riaz hussain, J, Mst. SHERIFAN BEGUM-Petitioner versus STATE--Respondent Crl. Misc. No. 563/B/1995, accepted on 3.7.1995. Bail before Arrest— —-S. 498 Cr.P.C.--Bail before arrest-Grant of-Prayer for--Otfence U/Ss. 302/109/34 PPC--No overt act had been attributed to pet.i i ioner--Her mere presence in courtyard did not necessarily mean that sht> contributed to death of deceased—Petitioner is a woman and her case falls within proviso 1 of section 497 Cr.P.C.-Interim bail confirmed. [P. 1750] A & B Mr. Abdul Aziz Khan Niazi, Advocate, for Petitioner. Mr. Islam, Advocate, for Complainant. Mr. Fayyaz-ud-Din, Advocate for State. Date of hearing: 3.7.1996. order This is an application for bail before arrest moved on behalf of the petitioner in a case F.I.R. No. 89 dated 13.3.1995 for the offences under Sections 302, 109/34 PPC, registered at Police Station Sadar Dunyapur, District Lodhran. 2. Succinctly the prosecution case is that when Muhammad Saleem was found dead in the room, the petitioner was present in the court-yard of that house. 3. Arguments heard. Record perused. 4. No overt act had been attributed to the petitioner. Her mere presence in the court-yard did not necessarily mean that she contributed to the death of deceased Muhammad Saleem. The petitioner is a woman and her case falls within the proviso 1 of Section 497 Cr.P.C. 5. In view of above, the interim bail already granted to the petitioner B is hereby confirmed. (M.S.M) Interim bail confirmed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1752 (DB) [D.I. Khan Bench] Present: qazi muhammad farooq and M. shakirullah jan, JJ. MASHAL KHAN and another-Appellants versus STATE-Respondent Criminal Appeal No. 4 of 1994, accepted on 3.10.1995. (i) Pakistan Penal Code, 1860 (Act XLV of I860)- —Sections 302/307/148/149 PPC--Conviction for--Challenge to--Delay in lodging F.I.R.--F.I.R. was recorded after preliminary investigation-House of complainant party is situated at a distance of two or two and a half miles from police post but none of companions of deceased cared to go to police post to set machinery of law in motion against culprits-F.I.R was recorded by ASI in complainant's house at 11.30 P.M.-There was thus a delay of at least three hours in lodging F.I.R for which no explanation muchless plausible was given in F.I.R-Obvious that follows is that F.I.R as lodged after consultation and deliberations and complainant party had ample time at its disposal to fabricate a story-F.I.R. was recorded after preliminary investigation and as such its authenticity was questionable. . [Pp. 1756 & 1757] A & B (ii) Pakistan Penal Code, 1860 (Act XLV of 1860)-- —Sections 302/307/148/149 PPC-Conviction for--Challenge to--Evidence-- Appreciation of-Both eye witnesses are not natural and probable witnesses for simple reason that their presence near water tank at crucial time does not appeal to reason-There failure to go to police post to lodge F.I.R. also goes a long way to suggest that they were not present at spot- They also modified and improved prosecution story set up in F.I.R.- Appeal accepted. [P. 1757] C Mr. Dost Muhammad Khan, Advocate, for Appellant. Mr. Ejaz Muhammad Khan, A.A.G. for State. Mr. Muhammad Iqbal Khan Kundi, Advocate, for Complainant. Date of hearing: 3.10.1995. judgment Qazi Muhammad Farooq, J.--On 4.6.1985 an incident of firing took place in village Samandi, Tehsil and District Lakki, in which one person lost his life and two sustained fire-arm injuries. In the ensuing F.I.R. was many as nine persons were nominated as the accused of whom two, namely, Mumtaz Khan and Dil Jan are still fugitives from Law. The remaining accused, of whom Sher All Khan has died, were arrested from time to time and tried by the learned Sessions Judge, LakM for offence under sections 302/307/148/149 PPC. The learned trial Judge by his judgment dated 24.1.1994 acquitted four out of the lot, namely, Abbas Khan, Sattar Khan, Amir Jan and Aslam Khan but found Mashal Khan, aged about 37/38 years, and his father Muhammad Nawaz Khan, aged about 52/53 years, guilty of committing the murder of Izzat Khan launching murderous assault on Bahadur Khan and Gulnawaz and consequently convicted them under Sections 302/34 PPC and sentenced them to imprisonment for life and a fine of Rs. 50,000/- each or three years S.I, each in default of payment of fine. A direction was also given to the effect that half of the fine, on realization, should be paid to the legal heirs of the deceased as compensation under Section 544-A Cr.P.C. The benefit of Section 382-B Cr.P.C. was also extended. 2. The convicts have filed the appeal in hand while the complainant Mashal Khan has filed a Criminal Revision (No. 1/94) against the acquittal of the aforementioned four accused and for enhancement of the sentences awarded to the appellants. We propose to dispose of both the matters by this single judgment. 3. The occurrence had taken place during the month of Ramzan at 'Aftar' time near a water tank situate in village Samandi at a distance of about two miles from Police Post Abbasa. The F.I.R. was lodged by Mashal Khan, brother of the deceased, in his house at 11.30 P.M. which was recorded by Muhammad Ayaz Khan A.S.I. Police Post Abbasa (PW. 5) in the shape of a murasila on the basis of which a formal F.I.R. was drawn up at Police Station Dadiwala on 5,6.1985. 4. The facts of the case as highlighted in the murasila are that on the eventful day shortly before Aftar time the complainant Mashal Khan and his brother Izzat Khan deceased and nephew Masood Khan were present near the Water Tank and the deceased being a Valveman of the Public Health Engineering Department was opening the valve for supply of water to village Gullapa. Taking exception, Sher AM Khan accused asked the deceased to desist from opening the valve of village Gullapa and disturbing the supply of water to village Samandi on which an altercation took place between them which led to exchange of abuses. Sher Ali Khan commanded his brother Muhammad Nawaz Khan and Mashal Khan, who were present at the spot armed with topaks, to kill Izzat Khan on which Muhammad Nawaz fired a shot at the deceased bat missed the target. Thereafter Mashal Khan fired a shot at the deceased effectively. The complainant and his nephew Masood Khan escorted the injured to their house and immediately thereafter Amir Jan, Mumtaz, Aslam Khan, Abbas Khan, Dil Jan and Sattar Khan started firing which continued for a long time as a result of which Bahadur Khan and Gulnawaz sustained injuries. The deceased succumbed to his injuries after half an hour. There was no previous enmity between the parties. 5. Autopsy on the dead body of the deceased was held by Doctor Hidayatullah Khan (PW. 7) on 5.6.1985 who found the following: EXTERNAL 1. One fire-arm inlet wound 1/8" x 1/8" in the enguinal region mid-way between public bone and illiac crest. 2. One fire-arm exit wound 1" x 1" on the right buttock 1" away from Ischium. INTERNAL Abdomen, walls, peritoneum, large intestines and urinary bladder were injured while right iliac bone was fractured. In his opinion, the death had occurred as a result of injury to the pelvic vessels (iliac and femiral) bleeding and shock. Probable time between injury and death was one and a half hour while between death and post­ mortem examination 14 to 16 hours. 6. The two injured were sent to the hospital on the very day of the occurrence where they were medically examined by the same Doctor who found the following injuries on the person of Bahadur Khan:- WOUNDS 1. One fire arm inlet wound on the back of the right palm 1/8" x 1/8". 2. One fire arm outlet wound in centre of the front of the right palm 1/7" x 1/7" 3. One fire arm inlet wound 1/8" X 1/8" on the outerside of the right hip. 4. One fire arm inlet wound on the outer side of the middle of the right thigh. One fire-arm exit wound 1/7" x 1/7" on the middle of he inner side of the right thigh. 5. One fire-arm inlet wound on t e middle of the inner side of the left thigh 1/8" x 1/8". 6. One fire-arm exit wound 1/7" x 1/7" on the outer side of the middle of the left thigh 1/8" x 1/8". Probable duration of the injuries was opined as 6 to 8 hours while kind of weapon used was declared as fire-arm. 7. The medical examination of Gul Nawaz disclosed the following injuries: - WOUNDS 1. One fire-arm inlet wound in the left anti-axillary line in 10th intercostal space 1/8" x 1/8". 2. X-ray shows a pellet in the abdomen. Nature of injury was held a s grievous, probable duration of injury within 6 to 8 hours while the kind of weapon used was opined as fire-arm. 8. To prove its case, the prosecution examined thirteen witnesses, namely, Asmatullah Khan S.H.O. (P.W. 1), Muhammad Yousuf HC (PW. 2), Muhammad Yousaf IHC ((PW. 3), Sardar Nawaz Moharrir (PW. 4), Muhammad Ayaz S.H.O. (PW. 5), Muhamnmd Nawaz (PW. 6), Dr. Hidayatullah Khan (PW. 7), Sahib Noor (PW. &;, Nasrullah FC (PW. 9), Mashal Khan (PW. 10), Masood Khan (PW. 11), Gui Sher Khan ASI (PW. 12) and Farooq Ahmad Jan SDPO (PW. 13). Of them while Mashal Khan and Masood Khan furnished ocular evidence and Muhammad Ayaz furnished details of the investigate n carried out by him Farooq Ahmad Jan deposed about the investigation conducted by him in regard to the plea of alibi taken by the appellant Mashal and the rest gave vidence of ormal nature. After the close of the prosecution evidence the request made by the accused in writing for recording the statements of three persons as Court witnesses was granted and the statements of Ala-ud-Din (CW. 1) and the two injured Bahadur Khan (CW. 2) and Gul Nawaz (CW. 3) were recorded. 9. The appellants and their acquitted co-accused pleaded innocence when examined under Section 342 Cr.P.C. and attributed their involvement in the case to false implication. However, they neither produced any evidence in defence nor examined themselves on oath under Section 340(2) Cr.P.C. 10. The appellants were convicted by the learned trial Court on the strength of the ocular evidence furnished by the complainant Mashal Khan and his nephew Masood Khan and the corroborative evidence consisting of the post-mortem report and their abscondence. The acquitted co-accused of the appellants were held not guilty for the reason that they were not charged either by Mashal Khan and Masood Khan or by the two injured witnesses Bahadur Khan and Gul Nawaz. 11. It was contended by the learned counsel for the appellants that the prosecution and failed to prove its case beyond any reasonable doubt in that there was inordinate and unexplained delay of more than three hours in lodging the F.I.R.; that the F.l.R. was lodged on the spot after consultations and preliminary investigation; that the prosecution story besides being queer was incompatible with the site plan; that the ocular evidence was highly blemished as the complainant and his nephew were not only closely related to the deceased but were also trumped up witnesses; that there was no evidence on record to substantiate the assertion that the deceased was employed by the Public Health Department as a Vaiveman, that the plea of alibi of the appellant Mashal Khan was fully established; that the two injured witnesses Bahadur Khan and Gul Nawaz Khan hand belied the prosecution version but the impact of their testimony was ignored by the learned trial Court; that the eye-witnesses had made improvements at the trial to bring the prosecution story in iine with the site plan; that the deceased had succumbed to his injuries after sufficient time but had not made an oral dying declaration; the abscondence by itself was not sufficient for conviction and that the investigation was not above board. 12. The learned Assistant Advocate General supported the trial Court's judgment. His stand point was that there was no previous enmity between the parties, therefore, the delay in lodging the F.I.R. was immaterial, the eye witnesses were worthy of credence and their testimony was corroborated by the abscondence of the appellants and the defects in their statements pointed out by the learned counsel for the appellants were too trivial to reflect on their veracity. 13. The learned counsel for the petitioner in the criminal revision contended that the grounds of acquittal of Abbas Khan etc. were fanciful because they too had remained absconders for a noticeable period. 14. We tend to agree with the learned counsel for the appellants that the prosecution story is too odd to stand to reason. The occurrence had taken place in the month of Ramzan a little before A/tor time. At that time oth the parties were supposed to be present in their houses and not at the ; water tank particularly when it is not the prosecution case that they were making ablution. There is also nothing on the record to show that the deceased was a Vaiveman and used to open to valve meant for supply of water to village Gulapa at Aftar time. According to the site plan the Valve and the water tank are 219 paces apart, therefore, even if the deceased is believed to be a Vaiveman and the presence of the parties at the water tank is presumed the occurrence did not take place in the manner described in the F.I.R. and for this very reason the eye witnesses made a modification in the prosecution story at the trial that after the exchange of hot words between the deceased and Sher Ali Khan they and the deceased had set cut for their .^ house and while they were going to their house the deceased was fired at by the appellants on the exhortation of Sher Ali Khan. 16 The house of the complainant party is situated at a distance of two or two and a halt" miles from Police Post Abbasa but none of the companions of the deceased cared to go to the Police Post to set the machinery of law in motion against the culprits. The F.I.R. was recorded by Muhammad Ayaz Khan ASI in the he complainant's house at 11.30 P.M. Theie was thus a delay of at least three hours in lodging the F.I.R. for which no explanation muchless plausible was given in the F.I.R. The obvious that follows is that the F.I.R. was lodged after consultations and deliberations and the complainant party had ample time at its disposal to fabricate a story. No doubt there is no previous enmity between the parties but this circumstance cannot make the F.I.R. sacrosanct in view of the odd nature of the prosecution story. It is in the statement of Muhammad Ayaz Khan that on hearing the reports of Fire-arms in the Police Post he had left for the village of the complainant party, therefore, we see no reason to disagree with the learned counsel for the appellants on the point that the F.I.R. was recorded after preliminary investigation and as such its authenticity was questionable. 16. Coming to the ocular evidence we find that it does not inspire confidence. Both the eye-witnesses are not natural and probable witnesses for the simple reason that their presence near the Water tank at the crucial time does not appeal to reason. Their failure to go to the Police Post Abbasa to lodge the report also goes a long way to suggest that they were not present at the spot. They also modified and improved the prosecution story set up in the F.I.R. by stating that the occurrence had taken place while they were going to their house and after leaving the deceased in an injured condition in the house they had come out and thereafter the accused other than the appellants had started firing. The first modification was made by them with utmost facility in order to synchronize the prosecution story with the site plan but when Masood Khan realised that the deceased was hit on the front side of his body he made another improvement that while they were going to their house after exchange of hot words between the deceased and Sher Ali Khan the latter raised a Lakara on which they turned around and then the deceased was fired at by the appellants. Their statements do not ring true intrinsically, therefore, no corroborative evidence howsoever strong it may be can make them worthy of credence. 17. The plea of alibi taken by Mashal Khan appellant has no substance inasmuch as the statement, of Farooq Ahamd Jan Assistant Director Anti-Corruption (PW. 3) makes it manifest that the entry in the aily Diary of SPL Dara Tang on which it was based was made by means of interpolation. 18. In so far as the abscondence of the appellants is concerned it is meaningless because it can neither remove the defects of the oral evidence nor is by itself sufficient to justify conviction. 19. The grounds of acquittal of the respondents Abbas Khan etc. cannot be called fanciful or perverse. They were neither charged by the eye witnesses nor Bahadur Khan and Gul Nawaz who have attributed their plight to cross-firing between the parties. There is thus no substance in the revision petition. For the foregoing reasons this appeal is accepted, the conviction and sentences of the appellants are set aside and they are acquitted of the charge levelled against them. They are in custody and be set at liberty forthwith if not required in any other case. Their acquittal shall have no bearing on the merits of the case "f their absconding co-accused. The Criminal Revision stands dismissed. (K.A.B.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1758 Present: jawaid nawaz khan, J. ATLAS KHAN-Petitioner versus STATE--Respondent Cr. M.B.A. No. 270 of 1996, dismissed on 17.7.1996. PLJ Bail-- —-S. 497 Cr.P.C.--Bail--Grant of-Prayer for-Offence under section 302 P.P.C.-Petitioner had seen his sister in-law with his brother, in an objectionable position, therefore he had acted under the sting of grave and sudden provocation and killed both of them--Case of petitioner whether falls under clause (c) of S. 302 PPC--Question of-Reasonable grounds do exist for believing that petitioner is connected with offence charged with and as such not entitled to be extended benefit of bail-­ Petition dismissed. [P. 1761] A Muhammad Tariq Afridi, Advocate, for Petitioner. Fazal Muhammad Khan, Advocate, for State. Date of hearing: 17.7.1996. judgment The petitioner, Atlas Khan, stands charged for having killed his real brother Shamshad and sister-in-law Mst. Nizakat, wife of his other brother Jehanzeb, vide : F.I.R. No. 713 lodged by his father in police station, University Town, Peshawar U/S. 302 P P.C. on 25.7.1995. 2. After having failed to procure bail from the lower Courts the petitioner has come to this Court for the redress of his grievance and has prayed that he be released on bail till the decision of the case. The learned counsel for the petitioner submitted that since the petitioner had seen his sister-in-law (wife of his other brother namely Jehanzeb) with his brother, in an objectionable position, therefore, he had acted under the sting of grave and sudden provocation and killed both of them. According to him, the case of the petitioner would, therefore, fall under clause (c) of Section 302 PPC and the petitioner would be entitled to be released on bail. He further alleged that in a similar case titled Alt Muhammad vs. All Muhammad and another reported as PLJ 1996 SC 831 PLD 1996 Supreme Court 274 the Honourable Supreme Court had convicted the accused-husband for a period of only two years. It was held in that case:- "30. I can now return to the facts of this case. This was not a case of a mental condition described in picturesque, if inaccurate language, as the Othello syndrome which is defined as morbid jealousy for which there is no cause. For the reasons given by the learned Judge in the High Court, which are based upon those stated by Justice Shafiur Rehman, as Chairman, of the Supreme Appellate Court, in Muhammad Hanif case 1992 SCMR 2047, the Courts below were entitled to accept the truth of the story in toto given by the accused. According to that story the deceased had intruded into the accused's home - his castle - at the unearthly mid-night hour, that was invasion of his property and privacy and was criminal trespass. As if that was no enough, the deceased was found by the accused sleeping with his wife. In these facts, the accused was, in my opinion, entitled to invoke the defence of grave and sudden provocation; he was also entitled to invoke the defence of self-defence base on verse 34 of Sura AI-Nisa as interpreted by Justice Shafiur Rehman, J. in Muhammad Hanif case. In such cases, there is no duty to retreat. 31. It appears however that in addition to the grounds stated in Muhammad Hanif case, the accused had also exceeded his right of self-defence, in that he had overpowered the deceased man by putting a 'Chaddar' around his neck but had pressed it so hard as to strangulate him to death. His case, therefore, clearly fall under clause (c) of Section 302. It must follow, therefore, that the learned Judge in the High Court was not right in holding that the accused had committed no offence and was not liable to any punishment. 32. I would, therefore, convict the accused under section 302, clause (c) of the P.P.C. 33. As regards the question of sentence, the accused was arrested on 3.11.1990 and he remained in jail till 13.12. 1992 when he was acquitted by the High Court's judgment of that date. In the circumstances, I am of the opinion that the sentence of imprisonment that the accused has already suffered will serve the ends of justice." 4. On the other hand, the learned Additional Advocate General submitted that the petitioner has been charged, by his real father for double murder i.e., for having killed his brother and Mst. Nazakat, wife of his other brother namely Jehanzeb, in the promptly lodged F.I.R. and the prosecution version is fully supported by the P.Ws. who are closely related to the petitioner including his mother and brother, wife apart. In the circumstances, according to him, reasonable grounds do exist for believing that the petitioner has committed the offence charged with. He further stated that it was inconceivable that a father would charge his son falsely for committing double murder. He further stated that the contention of the learned counsel for the petitioner that his case falls under clause (c) of section 302 PPC is premature as it would be seen during the course of trial as to whether the case of the petitioner, in actual fact, falls U/S 302 PPC clause (c) PPC or U/S 302 clause (a) or (b) P.P.C. Beside this, he contended that the case of the petitioner apparently falls U/S 302(b) PPC. In support of his contention, he placed reliance on case titled Abdul Hague vs. The State reported as PLD 1996 Supreme Court 1 wherein a Full Bench of the Supreme (consisting of 5 Honourable Judges) have held:- "56. In the instant case there are very peculiar facts and circumstances, Muhammad Shafique was on trial on charge of murder of/father of the appellant. Muhammad/ Shafique used to attend the hearing of the case in custody and appellant Abdul Haque as complainant in that case also used to attend hearings coming armed with pistol. Plea of Abdul Haque that he fired shots at Muhammad Shafique in the Court room on the day of judgment for the reasons that before announcement of judgment Muhammad Shafique abused Abdul Haque in Pushto in respect of his wife and wives of his tribe while passing in front of him and on that account Abdul Haque took out pistol and fired at. him. This version is sufficiently substantiated by two eye witnesses P.W. 4, Yar Muhammad, and P.W. 9, Muhammad Aziz who have admitted in their cross examination that M. Shafique did say something in Pushto which was not understood by them as they were not conversant with that language. In the old law before amendment the appellant could have got away with lighter sentence provided in section 304, P.P.C. In such circumstances, appellant in his case cannot and should not be punished with Qisas, secondly, proof as demanded under section 304 PPC for qatle amd is not vailable because the appellant has not made confession of qatle amd as such before the trial Court. True that there is admission of firing by the appellant at the deceased but that admission is to be read not in isolation of but in conjunction with his specific plea that he was provoked by abuses in respect of his wife and wives of his tribe uttered by the deceased which he could not tolerate. Thirdly, witnesses produced in the trial Court in support of the charge do not fulfil the requirements of Article 17 of the Qanun-e-Shahadat. For such reasons it can be said that Section 302(b), PPC will apply in this case and the appellant cannot be punished by way of tazir. Under the said provision, power given to the Court is only to punish with death or imprisonment for life as tazir and nothing less than that. We have also taken into consideration the fact that deceased Muhammad Shafique, when fired upon, was in custody and in hand cuffs and therefore, helpless and unable to save himself. We have also considered the fact that the appellant is Pathan and as such traditionally very sensitive about anything derogatory stated about his women folk and is expected to react very quickly on account of provocation. In the circumstances, we consider that plea of grave and sudden provocation on account of abusive language can be treated as mitigating circumstance in awarding sentence under tazir even if this plea is such is not available and does not get any protection in the new amended law. 57. For such peculiar facts and reasons as stated above, we dismiss this appeal with modification to the extent that the appellant is convicted under section 302 (b) and is sentenced to imprisonment for life." 5. After going through the record of the case and the case law relied upon by the learned counsel for the parties and without dilating upon the merits of the case, at this stage, lest it may prejudice the judicial mind of the learned trial Court, I am of the considered view that reasonable grounds do exist for believing that the petitioner is connected with the offence charged with and as such not entitled to be extended the benefit of bail. 6. This bail petition is without any substance and therefore, dismissed. (K.A.B.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1762 (DB) Present: S. ibne ali and QAZl M. farooq, JJ. Mst. ZAFRAN-Appellant versus STATE-Respondent Cr. A. No. 12 of 1991, accepted on 16.5.1993. Qanun-e-Shahadat Order, 1984-- —-Art. 43-Joint trial-Confession of one accused-Whether can taken as proof about guilt of co-accused-Question of-Circumstantial evidence howsoever strong it may be, cannot take place of a proof-How on earth one can be convicted on solitary piece of circumstantial evidence in shape of retracted confession of co-accused in absence of any other strong piece of corroboratory evidence direct or circumstantial—To convict a person on such evidence alone is not only against spirit of law but also against law laid down by superior courts-Appeal accepted. [P. 1767] A Mr. Dost Muhammad Khan, Adv. for Appellant. Mr. Ejaz Muhammad Khan, A.A.G for State. Date of hearing: 16.5.1993. judgment S. Ibne Ali, J.--The accused-appellant Mst. Zafrana was tried, found guilty, convicted u/s 302/109 PPC and sentenced to life imprisonment with a fine of Rs. 5,000/- or in default to suffer one year R.I. by the trial Court vide its judgment dated 26.5.1991. She has now challenged her conviction and sentence before this Court by filing the appeal in hand. 2. The prosecution story briefly stated is that Sher Muhammad (deceased) husband of Mst. Zafrana appellant was shot dead on the night in between 9/10th of May, 1988 in the fields of Khan Haji Gul situated within the limits of P.S. Saddar Bannu. The report about the occurrence was lodged by the convict-appellant on 10.5.1988 at 9.00 hours in the shape of a Murasila Ex. P.A. which was incorporated into F.I.R. No. 163 in P.S. Saddar Bannu on the same day, wherein she stated that the deceased was her husband and she had given birth to four sons and a daughter from him. She further alleged that on account of ailment she had been living in her parents house in village Beri Khel Mandan for treatment of the last about two months, where she was informed by one Muhammad Ali about the killing of her husband Sher Muhammad deceased. She at that time charged in the FIR Mir Kaboot and Mir Laiq for the murder of her husband. Motive for the offence as alleged by her in the FIR was a dispute over some landed property between the deceased and the accused Mir Kaboot and Mir Laiq. 3. During the course of investigation it was disclosed that the complainant had falsely implicated Mir Laiq and Mir Kaboot in the case and she had illicit connection with Elam Jan accused and in order to clear their way, they in consultation with each other have done away with the deceased. It is pertinent to note that Elam Jan accused has also been convicted and sentenced to imprisonment for life by the trial Court in a joint trial with Mst. Zafrana convict-appellant, but he is not appellant before us. 4. The co-accused Elam Jan made a confession before the Magistrate, wherein he stated that at the instance of the appellant he has killed the deceased. After the confession statement of Elam Jan co-accused the 1.0. arrested Mst. Zafrana the appellant and challaned her in the present case. 5. The convict-appellant Mst, Zafrana and her co-accused were produced before the trial Court, where they did not plead guilty to the charge and claimed trial. 6. In order to prove its case the prosecution in all examined 8 witnesses. 7. P.W. 1 Mahmood Khan ASI on receipt of Murasila Ex. P.A. has registered the case vide FIR Ex. P.A. 1/1. 8. P. W. 2 Ghulam Mustafa Head Constable is a formal witness to the recovery memos Ex. P.C, Ex. P.D., Ex. P.E., Ex. P.P. and Ex. P.G., whereby various articles were taken into possession by the I.O. during the spot inspection. 9. P.W. Ghulam Qasim ASI has stated that he was on Gasht on 10.5.1988 and in the meanwhile Mst, Zafrana met him and reported the matter, which he reduced into Murasila Ex. P.A. and sent the same to P.S. Saddar Bannu for registration of a case. Thereafter he proceeded to the spot, prepared injury sheet and inquest report of the deceased. He also secured blood stained earth from the spot and sealed the same into a parcel vide recovery memo Ex. P.C. He also took into possession blood stained leaves of bushes vide recovery memo Ex. P.D. He took into possession a 12 bore empty vide memo Ex. P. 1 /1. a phial containing pellets vide memo Ex. P. 5., a blood stained shirt Ex. P. 6 and a blood stained Jacket Ex. P. 7 belonging to the deceased brought by the constable from the hospital vide recovery emo x. P.G. He fulfilled all the formalities of investigation and arrested accused Elam Jan on 13.5.1988 and the convict-appellant Mst. Zafrana on 15.5.1988. He also recorded the statements of P.Ws. u/S. 161 Cr.P.C. Accused Mir boot and Mir Laiq, charged in the FIR by Mst. Zafrana were discharged u/s 169 Cr.P.C. Accused Elam Jan was produced before Jehangir Khan, MIC. Bannu, who recorded his confessional statement on 15.5.1988, which is Ex. P.Q. on the record. 10. P.W. 4 Jehangir Khan MIC. has recorded the confessional statement of accused Elam Jan as stated earlier. 11. P.W. 5 Haq Bayaz has stated that during the days of occurrence he was Chowkidar in Torka Bazar, while the deceased Sher Muhammad was water career in the said Bazar and on the night of occurrence at about 9/930 P.M. he had seen the deceased in the company of Elam Jan accused in th« hotel of one Daraz Khan while they were taking tea. Thereafter the accused nd the deceased smoked Charas outside the hotel and then both of them went to the hotel of one Mazullah Khan situated at a distan e of about 10 paces from the shop of Daraz Khan. He stated that he has also seen the deceased and the accused in the hotel of Mazullah han at about 10.30 P.M. and at about 11.00 P.M. he heard the report of fire shot and on the next morning he learnt that Sher Muhammad was lying dead in a vial. In his cross examination he stated that he has got no relation with the discharged accused Mir Kaboot and Mir Laiq. Besides it no material question was put to him in the cross examination. 12. P.W. 6 Jamal Ahmad is the marginal witness to the recovery memo Ex. P.O. 1/1 vide which the I.O. took into possession the crime pistol Ex. P. 8 allegedly recovered at the pointation of accused Elam Jan. 13. Abdur Rahim Khan the then SHO P.S. Saddar Bannu appeared as P.W. 7 and stated in detail the whole proceedings, which he has conducted during the investigation of the case and denied the suggestions put to him during his cross examination. 14. P.W. 8 Dr. Hafizullah Khan, the then Medical Officer D.H.Q. Hospital Bannu conducted autopsy on the dead body of Sher Muhammad deceased on 10.5.88 at 10.15 A.M. and found the following on external examination:- "1. An entry wound 1" x 1" on the back at the level of 4th thoracic spine one inch on the right side of spine. 2. A bruise 1" x 1" on the right side of forehead. 3. A bruise 1" x 1.2" on the bridge nose. Internal Examination. 3rd thoracic vertebral process is fractured. 3rd rib on the back fractured Pleasurae damaged on right side. Trachea is damaged. Right lung damaged. Main aorta damaged alongwith the main lungs blood-vessels. Stomach healthy". Death in his opinion was caused due to injuries to vital organs like Aorta, pulmonary vessels and lungs, which led to profuse haemorrhage. Probable time between injuries and death was opined to be 15 to 30 minutes and the time between death and P.M. examination 10 to 15 hours. 15. We have heard the learned counsel for the appellant and learned Asstt. A.G. for the State. 16. At the very outset the learned counsel for the appellant submitted that the only evidence against the appellant is the confessional statement of co-convicted accused Elam Jan and there is no other evidence ocular or circumstantial against her. He further submitted that even the confessional statement of the co-accused Elam Jan is not admissible in evidence because it has been recorded on Oath. He further submitted that even the case of the co-convicted accused Elam Jan, who has not appealed against his conviction is full of doubts and he has been convicted by the trial Court on surmises and conjectures. (We have also taken suo motu notice of the case and have issued notice to the State for examining the record against the co-convicted accused Elam Jan separately). The learned counsel submitted that even the weapon of offence which has been recovered from the possession of the co-convicted accused is also not proved. He referred to the statement of Jamal Ahmad CP.W. 6), who denied the recovery of the pistol Ex. P. 8 from the possession of the co-accused and stated that he saw the pistol in the hand of the SHO at the time of recovery and it was not recovered from the possession of anybody else in his presence. He stated that he is serving as Instructor in Govt. College of Education Ghoriwala for the last 26 years. He stated that he did not enter the house nor he saw the recovery from the possession of the co-accused and he signed the memo Ex. P. 1/1 under the pressure of the SHO. 17. From the perusal of the FIR it is clear that it was Mst. Zafrana the appellant who first lodged the report wherein she charged Mir Laiq son of Mir Kaboot and Mir Kaboot son of Sher Khan for the murder of her deceased husband. She gave the motive that there was a dispute between the two accused and the deceased over a landed property. Later on after investigating the case the I.O came to the conclusion that the two persons charged by the appellant in the FIR were innocent and the murder has been committed by the co-convicted accused at the instigation of the present appellant. As stated above co-accused Elam Jan was arrested and the police was successful to procure the confessional statement from the co-accused wherein he had admitted that the murder was committed by him at the instance of the appellant. Even in her statement u/S. 342 Cr.P.C. the appellant stated that the actual murderers are Mir Kaboot and Mir Laiq the step brothers of the deceased just to grab the property of her husband. She further stated in her statement that due to the influence of an M.P.A. of Illaqa the I.O. exonerated the real culprits from the case and involved her and the co-accused in the case. She further stated that the co-accused in the case. She further stated that the co-accused is more than 50 years of age, whom she had never seen nor she had any illicit relation with him. 18. The learned trial Court in para 19 of the judgment has stated as follows:- "The evidence produced by prosecution and the confession of accused Elam Jan are sufficient piece of evidence in order to establish that accused Elam Jan and Mst. Zafrana were carrying on illicit relation with each other. Though accused Mst. Zafrana was the legally wedded wife of deceased Sher Muhammad but in order to fulfil their illegal lust both the accused Elam Jan and Mst. Zafrana have arranged for the murder of deceased as he being the husband of Mst. Zafrana was material hurdle for them in prosecution of their illicit relation. This motive of instant occurrence advanced by prosecution which persuaded both the accused to arrange the murder of deceased, is not only corroborated from the circumstances of case but it has also got support from the retracted confessional statement of accused Elam Jan which is volunteer and true one. Any how, as I have discussed above that there is no direct evidence in the instant case and the prosecution has come forthwith the retracted confession of accused Elam Jan which is further corroborated through the circumstantial evidence, therefore, under the Law we have to accept the said confession as it is. While going through the confession of accused Elam Jan, it appears that at the time of commission of murder of deceased by him, he was fully under the influence of accused Mst. Zafrana not only on account of his illicit liaison with her but he was also compelled by her under a threat that if he shall not commit the murder of her husband Sher Muhammad she will charge him for Zina. If this part of confession of accused Elam Jan is to be considered with reference to the external circumstances of instant case, it appears that accused Elam Jan was totally in the hand of lady accused Mst. Zafrana, who has become so blind in her illegitimate relation with her paramour, the co-accused Elam Jan that she was bent upon to dispose of her own husband once for ever." 19. From the perusal of the above para which has been reproduced from the judgment of the trial Court it is clear that the appellant has been convicted on the retracted confession of the co-convicted accused and there is no other evidence against her. 20. The evidentiary value of confession qua its maker and others, mentioned in such confession will be clear from Article 43 of Qanun-e- Shahadat Order 1984 which is reproduced below: - "43. Consideration of proved confession affecting person making it and others jointly under trial for same offence.-- When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved:- (a) such confession shall be proof against the person; making it; and (b) the Court may take into consideration such confession as circumstantial evidence against such other person." From plain reading of the above quoted Article it is clear that the confession against its maker will be taken as a proof, if it is proved and against other person the Court may take it into consideration as circumstantial evidence. The confession of co-convicted accused appears to be not proved on the one hand and on the other the Court may consider it as circumstantial evidence against the co-accused if otherwise proved and no further. In any case it is a well known principle of criminal jurisprudence that circumstantial evidence howsoever strong it may be, cannot take the place of a proof. How on earth one can be convicted on solitary piece of circumstantial evidence in the shape of retracted confession of co-accused in the absence of any other strong piece of corroboratory evidence direct or circumstantial, which is totally lacking in this case. To convict a person on such evidence alone is not only against the sprit of law but also against the law laid down by the Superior Courts. 21. For the foregoing reasons the appeal of the appellant is accepted. The conviction and sentence of the appellant is set aside and she is acquitted of the charge levelled against her. She shall be set at liberty forthwith if not wanted in any other criminal case. Herein above are reasons for our earlier short order. (K.A.B.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) (DB) 1768 Present: S. ibne Ail, and qazi M, farooq, J. CLAM JAN-Appellant versus STATE-Respondent Cr. Appeal No. 9 of 1993, accepted on 18.5.1993. (i) Recovery-- —Recovery-Weapon of offence-Pistol and empty were sent to export after a delay of two months which has not been properly explained by I.O.- Appeal accepted. [P 1774] C (ii) Retracted Confession- —Retracted confession-Evidentiary value of-Conviction can be based on a retracted confession provided it is proved to be voluntary and secondly it is corroborated by independent evidence either direct or circumstantial-­ Confessional statement is neither voluntary 7 nor admissible in evidence as it has been recorded on oath. [P. 1771 & 1774] A & B Mr. Dost Muhammad Khan, Advocate for Appellant. Mr. Ejaz Muhammad Khan, A.A.G. for State. Date of hearing: 18.5.93. judgment S. Ibne Ali, J.--The accused-appellant Elam Jan was tried and convicted u/S. 302 PPC and sentenced to life imprisonment with a fine of Rs. 20,000/- or in default to undergo further 3 years R.I. The appellant was further convicted u/S. 13 A.O. and sentenced to 6 months R.I. with a fine of Rs. l.OOO/- or in default thereof to undergo one month's R.I. Both the sentences were however ordered to run concurrently, by the learned trial Court vide its judgment dated 26.5.1991. 2. On 16.5.1993 the appeal of his co-convicted appellant (Cr. A. No. 12/91) Mst. Zafrana came up for hearing before us. After hearing the learned counsel for the parties and scrutiny of the evidence it came to light that it was a case of no evidence and she was ultimately acquitted vide our detailed ! judgment dated 16.5.1993. Since the conviction of both the accused namely Mst. Zafrana and Elam Jan was based on no evidence, therefore, we gave a suo motu notice to the State and directed Mr. Dost Muhammad Khan Advocate to assist the Court in the matter Meanwhile Elam Jan accusedappellant also sent a Jail Cr. A. No. 9/93 through Jail authorities seeking condonation of delay in filing the appeal. In the interest of justice we condoned the delay and heard the appeal on merits. 3. The prosecution story briefly stated is that Sher Muhammad deceased husband of Mst. Zafrana acquitted accused was shot dead on the night in between 9/10th May, 1988 in the fields of Khan Haji Gul situated within the limits of P.S. Saddar Bannu. The report about the occurrence was lodged by the co-acquitted accused Mst. Zafrana on 10.5.88 at 9.00 hours in the shape of&Murasila Ex. P.A. which was incorporated into F.I.R. No. 163 in P.S. Saddar Bannu on the same day, wherein she stated that the deceased was her husband and she had given birth to four sons and a daughter from the wedlock with the deceased Sher Muhammad. She further stated that on account of illness she had been living in her parents house in village Beri Khel Mondan for treatment for the last about two months, where she was informed by one Muhammad Ali about the murder of her husband Sher Muhammad Ali about the murder of her husband Sher Muhammad deceased. She at that time charged in the FIR Mir Kaboot and Mir Laiq for the murder of her husband. Motive for the offence as alleged by her in the FIR was a dispute over some landed property between the deceased and the accused Mr. Kaboot and Mir Laiq. 4. During the course of investigation it was disclosed that the complainant had falsely charged Mir Laiq and Mir Kaboot in the case and she had illicit liaison with Elam Jan accused and in order to clear their way, they in consultation with each other have done away with the deceased. 5. Elam Jan made a confessional statement before the Magistrate in which he admitted to have committed the murder of the deceased Sher Muhammad at the instance of co-accused Mst. Zafrana. In his statement before the Court he retracted from his confessional statement and stated that the same was extracted from him by the police under duress and coercion in the course of torture. 6. In support of its case the prosecution produced as many as 8 witnesses. 7. P.Ws. 1, 2, 3, 4 and 6 are the official witnesses. They have st ted in detail the proceedings, which they have conducted having investigation. 8. P.W. 5 Haq Bayaz was the Chowkidar of Torka Bazar. He stated that the deceased Sher Muhammad was water carrier in the said Bazar and on the night of occurrence at about 9/9.30 he had seen the deceased in the company of Elam Jan accused in the hotel of one Daraz Khan while they were taking tea. Thereafter the accused and the deceased smoked Charas outside the hotel and then both of them went to the hotel of one Mazullah Khan situated at a distance of about 10 paces from the shop of Daraz Khan. e stated that he has also seen the deceased and the accused in the hotel of azullah Khan at about 10.30 P.M. and at about 11.00 P.M. he heard the report of fire shot and on the next morning h?- learnt that Sher Muhammad was lying dead in a vial. In the cross examination he stated that he has got no relation with the discharged accused Mir Kaboot and Mir Laiq. Beside it, no material question was put to him in the cross examination. 9. Abdur Rahim Khan SHO (P.W. 7) investigated the case, arrested Mir Kaboot the discharged accused and Elam Jan appellant on 13.5.88. He also arrested Mst. Zafrana on 15.5.88. He prepared the sit plan Ex. P.Q ½ showing the house wherefrom the weapon of offence (pistol Ex. P.8) was recovered, which was taken into possession vide memo Ex. P.O. 1/1. He produced Elam Jan appellant before the Magistrate for recording his confessional statement. The confessional statement is Ex. P.Q. It was duly recorded by the Magistrate (P.W.4). The pistol Ex. P. 8 was sent to the fire arm expert for opinion and report, which is Ex. P.R 1/2. The result of the Chemical Examiner in respect of blood stained earth and clothes of the deceased is Ex. P.R 1/1. The witnesses were also examined by this witness u/S. 161 Cr.P.C. and after completion of the investigation submitted complete challan against the accused in Court. He stated that Mir Kaboot Khan and Mir Laiq Khan charged in the FIR by Mst. Zafrana were discharged u/S. 169 Cr. P.C. 10. The prosecution also examined Jehangir Khan MIC (P.W. 4), who had recorded confessional statement of Elam Jan appellant on 15.5.1988, which is Ex. P.Q. According to this witness he observed all the egal formalities before recording the confessional statement of the appellant. He also read over the confessional statement to the appellant, which bears he thumb impression of the appellant. The certificate to the confessional statement is also in the hand writing of the Magistrate, which is Ex. P.Q. 1/1. 11. After recording evidence of the prosecution witnesses the appellant was examined u/S. 342 Cr.P.C. He denied the charged leveled against him and retracted from his confessional statement. He stated that the discharged accused namely Mir Kaboot and Mir Laiq were the step brothers of the deceased and very important political personalities including an MPA prevailed upon the police to save the skin of Mir Kaboot, they are strong supporters, got diverted the course of investigation and falsely involved the appellant. He further stated that he was arrested by the I.O. a day prior to the date of arrest shown in the arrest card and during his confinement he was maliciously tortured as a result of which he developed the signs of omitting, tenderness and fewer and when his condition became worst he was shifted to casualty of Civil Hospital Bannu, where the was kept for two days under observation and treatment. When he came into senses he was again shifted to the police custody and under pressure of the police the confessional statement was procured from him. He pleaded innocence. He also denied the recovery of pistol at his instance, which is according to the appellant a dishonest fabrication by Abdur Rahim Khan SHO. He also denied the recovery of empty of 12 bore from the spot. He further stated that he is more than 50 years of age and he is impotent. He stated that he asked the I.O. for his medical examination but with no result. He denied to have any relations with Mst. Zafrana. He did not wish to produce defence evidence or to give statement on Oath in his defence u/S. 340 (2) Cr. P.C. 12. We have Mr. Dost Muhammad Khan, Advocate learned counsel for the appellant, who was appointed by the State at State expenses and learned Asstt. Advocate General on behalf of the State. Record has been perused. 13. The prosecution has pressed into service the following circumstantial evidence against the appellant :-- 1. Confession of the appellant, which is retracted. 2. Recovery of empty of 12 bore. 3. Recovery of crime pistol at the instance of the appellant. 4. Finally the last seen evidence in the company of Sher Muhammad deceased. 14. We have already acquitted Mst. Zafrana co-accused from the charge of the murder of Sher Muhammad deceased husband of the lady coaccused by observing that no legal evidence was available against her for her conviction. While examining the record in the case of the acquitted lady accused Mst. Zafrana we found that the case against the present appellant, who had not appealed against conviction was also very weak and no conviction could be based on that evidence, therefore, we issued a suo motu notice to the State for examining the record. We also issued a notice to the Jail Authorities to produce the appellant before us. When the appellant was produced before us he filed appeal against this conviction with an application for condonation of delay. As stated earlier the delay was condoned. He submitted before us that he is a poor man and could not afford the services of a counsel and for this reason and the reason that he was warned by the police that if he files an appeal against his conviction it will be enhanced and he will be given death sentence, therefore, he did not file appeal in time. 15. Now coming to the confessional statement of the appellant, which has now been retracted by him, we observe that conviction can be based on a retracted confession provided it is proved to be voluntary and secondly it is corroborated by independent evidence either direct or circumstantial. In the light of the above we have found out that the confessional statement of the appellant is not voluntary, because from the record it has been proved that he was tortured by the police as a result of which he had developed the signs of omitting, tenderness and had fever and therefore, he was shifted to the Casualty Department of Civil Hospital Bannu, where he remained under treatment for many hours. Appellant in his statement u/S. 342 Cr.P.C. had explained all what had happened to him and he had also referred to the medical report and brought on file a copy of the report, which is Ex. D. 2. In such circumstances, it is difficult to say that the confessional statement of the accused was voluntary, in the first instance two persons were charged in the FIR namely Mir Kaboot Khan and Mir Laiq step brothers of the deceased by Mst. Zafrana widow of the deceased. According to the appellant they were let off by the police at the instance of an MPA and the influential persons of the area and they falsely involved the appellant and Mst. Zafrana. 16. The learned counsel for the appellant took us through the order which was passed by the Magistrate u/S. 169 Cr.P.C. while discharging accused Mir Kaboot and Mir Laiq. He had only initialled the report of the Investigating Officer. This order of the Magistrate is not at all a judicial or speaking order. All it would show is that the !.O. was only to favour accused Mir Kaboot and Mir Laiq and nothing else to give a good clue to the murder of the deceased. In the absence of any plausible evidence, we are constrained to hold that the appellant just made a scapegoat and the story of illicit relations between the acquitted accused Mst. Zafrana and the appellant was manufactured to make out a case against the accused on the so-called weak type of evidence. 17. While looking for the corroboration, the prosecution has relied on the recovery of the pistol (weapon of offence at the instance of the appellant). In order to see whether the recovery of the pistol Ex. P. 8 was enuine or not, we examined the statement of Jamal Ahmad (P.W. 6). He was serving as Instructor in Govt. College of Education Ghoriwala, for the last 26 years. He denied the recovery of the pistol Ex. P. 8 from the house at the instance of the appellant. He stated that he had seen the pistol in the hand of the SHO and was not recovered from the possession of anybody else in his presence. He also stated that he did not nter the house wherefrom the pistol was allegedly recovered. He stated that he had seen it in the hand of SHO only. He further stated that the memo was signed under the pressure of the SHO as he threatened the witness for the use of third degree method, if the witness did not act in accordance with his instructions. The learned counsel submitted that the site plan of the house wherefrom the weapon of offence (pistol) was recovered does not show as to whom the house belongs. The points where the police and the witnesses were present are also not shown in the site plan and it is also silent about the inhabitants of the house nor anybody has been cited as a witness from the house. Nothing has been brought on record to show as to how the appellant got access to the house especially in the absence of any relationship with any of the inmate of the house. The appellant was represented by a pauper counsel and when Jehangir Khan Magistrate was examined on 12.5.90, the counsel of the acquitted lady accused was not present. Her counsel had applied for adjournment of the case. A reference to the evidence on record will show that P.Ws. 1 and 2 were examined in the absence of the counsel of the appellant as at that time no pauper counsel was engaged for him. The pauper counsel was appointed on 17.3.90. It is also a matter of record that the crime empty was recovered from the spot on 10.5.88 but it was not kept in safe custody in 'Muhafiz Khana" properly sealed. The pistol was recovered on 14.5.88 and after a period of two months the pistol and the empty were sent to the fire arm expert from the police 'Malkhana'. The delay caused in sending the weapon of offence is therefore fatal and no reliance in these circumstances can be placed on the opinion of the expert. 18. The confessional statement of the appellant was recorded on oath, which is inadmissible in evidence. The recovery of the pistol was made on 14.5.88 and thereafter in confessional statement of the appellant no mention is made that the pistol was recovered at his instance from the place as shown by the I.O. in the site plan. It has been said in the confessional statement that the pistol was purchased by the appellant for Rs. 400/-, but the police failed to trace out the person from whom it was purchased. It was the duty of the Investigating Officer to have traced out whether the appellant purchased it from a dealer or from any other person. The prosecution case is that the acquitted lady accused and the appellant were committing sexual intercourse with each other but the learned trial Court came to the conclusion that this charge has not at all been proved against both the accused. Thus the main charge was that the appellant and the acquitted accused had developed illicit relations and in order to remove the hurdle in their way they murdered the deceased. This charge was however, not proved. One therefore, wonders as to on what other hypothesis the appellant can be held responsible for the murder of the deceased. 19. P.W. 5 Haqbayaz had allegedly seen the deceased and the appellant in each other's company before the occurrence. His statement was recorded on 11.5.88. Ghulam Qasim Investigating Officer, first went to the spot and remained there till evening. According to this witness very curiously, the I.O. did not examine P.W.5 before proceeding to the spot nor the witness utter a single word to him that until after his completion of the spot inspection. This casts doubt on the integrity of P.W. 5 that he was a truthful witness. In cross examination the witness stated that he was not examined by tise police. It is also In the prosecution story that the appellant and the deceased were seen in ;.ht Hotel of Mazullah and Daraz Khan, but their statements have no; been recorded in order to show that they had seen the appellant, and the deceased together at a particular time before the occurrence These two persons v yre the most crucial witnesses and ought to ave been examined. The record shows that the Hotel where the appellant and the deceased were llegedly seen together is at a sufficient distance from the place where the dead body of the deceased was lying. In order to rely on such evidence it must be proved that the accused was last seen in the company of the deceased at a short distance from the place of occurrence immediately before the commission of the offence. The learned counsel submitted that the distance between the Hotel where the deceased and the appellant were allegedly seen and the Banana Orchard, where the dead body was recovered is 2/3 miles. The learned State counsel was unable to contradict it. 18. From the above facts it is evident that no case is made out against the appellant. The confessional statement is neither voluntary nor admissible in evidence as it has been recorded on oath. The recovery of weapon of offence is highly doubtful. Moreover it was not kept in safe custody by the I.O. The pistol and the empty were sent to the expert after a delay of two months which has not been properly explained by the I.O. Finally the last seen evidence is not worth credence. For the above reasons, the instant appeal is accepted, the conviction and sentence of the appellant is set aside. He is acquitted of the charge levelled against him and he shall be released forthwith if not wanted in any other case. Hereinabove are the reasons for our earlier short order. (K.A.B.) Appeal accepted

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 1774 [DB] Present : mian muhammad ajmal and zeenat khan, JJ. GHULAM QASIM-Appellant versus STATE-Respondent Cr. Appeal No. of 1994, accepted on 13.5.1996. Suppression of Terrorist Activities Act, 1975 (XV of 1975)-- —-Ss. 4 and 5-Special Court--Jurisdiction of-S. 4. provides that the scheduled offences specified in schedule of Act are exclusively triable by a Special Court-Material available with prosecution reflected that Kalashinkov was used as weapon of offence, accused thus committed scheduled offences which were triable by Special Court-Under S. 5 officer incharge of police station after completion of investigation had to submit challan before Special Court who could only take cognizance of case-Appeal accepted. [P. 1775 & 1776] A & B Mr. S. Zafar Abbas Zaidi, Advocate and Mr Dast Muhammad Khan, Advocate for Appellant. Mr. Muhammad Khan Khakwani, Advocate, for State. Mr. Faridullah Khan, Advocate for Complainant. Date of hearing: 13.5.1996. judgment Mian Muhammad Ajmal, J.--The appellant was convicted in case FIR No. 223 dated 13.6.1991, P.S Mandan, Tehsil and District Bannu by the learned Sessions Judge, Bannu vide his judgment dated 28.8.1994 and sentenced him to life imprisonment under sections 302/149 PPC, to 7 years R.I with a fine of Rs. 10,000/- or in default of payment thereto to suffer one year S.I under section 324/149 PPC, to 7 years R.I and to pay Arsh equal to 1/5 of the half Diyat under section 334 PPC read with 337 PPC and to 3 years R. I under section 320/149 PPC. All the substantial sentences were to run concurrently while the sentence in default of fine was to run consecutively after substantive sentences. The benefit of section 382-B Cr.P.C was also given to the appellant. 2. At the very outset learned counsel for the appellant submitted that in view of the statement of injured Shameet Khan and Sher Bahadur recorded under section 161 Cr.P.C on the same very day to the effect that the accused party fired a the complainant and others with their Kalashnikovs causing the death of Mumboot Khan and injuring him, Gul Shah Keyaz and Muhammad Nawaz, they committed the scheduled offences within the meaning of section 4 of Suppression of Terrorist Activities Act, 1975 and as such were exclusively triable by Special Court constituted under the Act ibid and the trial conducted by the Sessions Judge was without jurisdiction. Reliance was placed on 1994 SCMR 717 and unreported Judgments of this court in Criminal Appeal No. 20 of 1992 (Muhammad Ayub and others vs. The State) decided on 20.3.1995 and Criminal Appeal No. 24 of 1992 (Nasib Khan versus The State) decided on 3.11.1994. Learned counsel for the State assisted by learned counsel for the complainant could not substantially controvert the proposition. 3. Section 4 of the Act ibid provides that the scheduled offences specified in the Schedule of the Act ibid are exclusively triable by a Special Court. For convenience sake the paragraphs of the schedule relevant for this case are reproduced below :-- "(ii) (a) section 302 or section 307, if committed in the course of the same transaction in which an offence-specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence. (c) any offence punishable under the Arms Act, 1878 (XI of 1878), or any offence punishable under any of the following sections or the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No. XX of 1965), namely, sections 8,9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; "or a light of heavy automatic or semi-automatic weapon such as Kalashinkov, a G-III rifle or any other type of assault rifle." In view of the above it is evident that in this case the offence specified in paragraphs (ii) (a) and (c) have been committed in the same transaction and in combination with each other. 4. Perusal of the record show that an injured witness namely Shahmeet Khan and Sher Bahadur in their statements recorded under section 161 Cr.P.C. stated that accused were armed with Kalashinkovs with which they fired at the complainant party, causing death of the complainant and injuring the other three. Since before the submission of the challan, the material available with the prosecution reflected that Kalashinkov was used as weapon of offence, the accused thus committed the scheduled offence which were triable by the Special Court. Under section 5 of the Act the officer incharge of the police station after completion of investigation had to submit the challan before the Special Court who could only take cognizance of the case. In this aspect the observations made in case of Allah Din and others vs. The State (1994 SCMR 717) can be conveniently quoted : "We are in agreement with view expressed in the reported judgment mentioned above, and further observe that question of jurisdiction can be determined on the basis of F.I.R. and other material which is produced by the prosecution at the time of presentation of the challan. On the basis of that material the Court has to decide whether cognizance is to be taken or not. In the instant case incident is seen by six eye-witnesses and on our query whether eye­ itnesses have supported the allegation in FIR about use of Kalashinkov like weapon, learned counsel of the petitioners replied in the affirmative. In the circumstances material available with prosecution in this case is sufficient to justify invocation of jurisdiction by the Special Court. Other contentions raised by the learned counsel for the petitioners as mentioned above, can be properly appreciated only when evidence is recorded in the trial Court and itnesses are cross-examined. When that stage comes, the law will take its own course and it is open to the parties to take steps as are permitted by the law. For the present we are of the view that no flaw or legal infirmity is pointed out in the judgment of the High Court warranting interference. Leave is refused nd the petition being devoid of merits, is hereby dismissed." This judgment has been followed by this Court in Cr. A. No. 24/92 and Cr. A. No. 20/92, where the impugned judgments of the Sessions Judges were set aside and the cases were remanded the Special Court for retrial in accordance with law. Consequently we, ccept this appeal, set aside the impugned judgment of the Sessions Judge Bannu, whereby he convicted and sentenced the appellant and direct the prosecution to submit the challan before the Special Court within a week and produce the appellant as under trial prisoner before the Special Court constituted under the Act, ibid for trial de novo in accordance with law. Th| record of the case be immediately sent to the concerned quarters. (K.A.B.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 1777 (DB) Present: muhammad raza and M. shakirullah jan, JJ. MUSHTAQ AHMAD-Appellant versus STATE-Respondent Crl. Appeal No. 15 of 1993, dismissed on 13.6.1994 Pakistan Penal Code, 1860 (Act XLV of 1860)-- —-S. 304-Murder-Offence of-Conviction for-Challenge to-Appellant who gave statement u/S. 342 Cr.P.C. and also examined himself as DW.l gave a lengthy statement admitting about all relevant facts except commission of offence-Held : Version given by appellant in respect of manner of firing with which deceased was hit does not fit in the circumstances of case-Site, location and direction of injury in such way do not support version of accused rather it cannot be explained on any other hypothesis that deceased was fired upon by somebody else and in facts of case it could be only accused and none else-Held further : Conviction of appellant is maintained-Appeal dismissed. [Pp. 1781 & 1782] A & B Mr. Dos? Muhammad Khan, Advocate for Appellant. Mr. LatifKhan, Advocate for State. Mr. S. Zafar Abbas Zaidi, Advocate for Complainant. Date of hearing: 13.6.1994. judgment Mian Shakirullah Jan, J.--By this single judgment we propose to dispose of Cr.A. No. 15 of 1993, whereby Mushtaq Ahmad appellant has challenged his conviction under section 304 Part-I PPC and sentence of 10 years' R.I. alongwith a fine of Rs. 30,0007- or in default of payment of fine to undergo further two years' S.I. and Cr. R. No. 5/93, in which Baud Khan, brother of the deceased has prayed for enhancement of the sentence of the convict-respondent to the normal penal!,;/ u/S. 302 PPC or in the event of construing the convict's acquittal u/S. 302 PPC, may set aside the conviction u/S. 302 Part-I PPC and remand the cases from the stage of the statement of accused onward for recording the conviction u/S. 302 PPC, and further to determine the amount of compensation separately and for its payment to the legal heirs of the dead in accordance with law. 2. The facts of the case which set up the prosecution machinery in motion are that on 2.12.1989 at 11.20 A.M Muhammad Ayaz Khan, IHC alongwith police posed was on duty inside Government Commerce College, Bannu for B.Com examination sitting outside the examination Hall. Meanwhile he heard the report of fire shot from the Canteen side and rushed towards the Canteen and saw the injured lying there and his brother Baud Khan, Lecturer was also present with him. Accused Mushtaq Ahmad was present there duly armed with 30 bore Pistol, who was arrested and the Pistol was also taken into possession. Mohabat Khan deceased who was then in injured condition reported the matter to Muhammad Ayaz in the Canteen situated in Commerce College, Bannu that on the of occurrence he alongwith his brother Baud Khan Lecturer, Commerce College, Bannu went to the Canteen for taking tea at 11.20 AM. On their arrival to the Canteen, Musthaq Ahmad who was already present there armed with 30 bore pistol, fired at the deceased with the intention to kill him, with which he was hit on the left side of belly. The occurrence was witnessed by Baud Khan, his brother. Motive for the offence was stated to be altercation between the deceased and the accused. 3. After completion of the investigation, the accused was sent up to the Court of Additional Sessions Judge, Bannu to face trial, who denied the charges and claimed trial. To prove its case the prosecution produced as many as 12 witnesses. Mir Qadir Shah, the Canteen Contractor was also examined as a Court Witness. Besides the statement of Musthaq Ahmad appellant, he also recorded his statement as BW. 1 4. The prosecution mainly relied upon the statements of Baud Khan, brother of the deceased and the alleged eye-witness, Muhammad Ayaz, IHC, scribe of the Murasila and Muhammad Karim, Principal of the College and statement of the deed incorporated in the FIR as Bying Beclaration. 5. Baud Khan, who was examined as PW. 8 deposed that he was a Lecturer in the Government Commerce College, Bannu and Mohabat Khan, deceased was his brother who was a student of B.Com in the same College. On the day of occurrence he and his deceased brother had went to Canteen of the College for having tea at about 11.20 AM, where Mushtaq Ahmad accused was already sitting duly armed with 30 bore pistol. As soon as they entered into Canteen, the accused opened fire at his deceased brother who was hit in the belly and fell down to the ground. The police posse thereafter arrived on the spot and caught hold of the accused alongwith the pistol. There was B.Com examination inside the College and in that connection police personnels were present there for duty. The dead then injured, was examined by the police who himself had reported the matter. The witness stated that 15 days prior to the occurrence his deceased brother and the accused had exchanged hot words with each other on the dispute of village road. Political rivalry was also stated to be motive for the offence. 6. Muhammad Ayaz Khan, ICH who appeared in the witness box as PW.9, deposed that during the days of occurrence he was posted as ICH in P.S. Saddar, Bannu. On the day of occurrence he was on duty inside Government Commerce College, Bannu alongwith police posse in connection with B.Com Examination. He was sitting with other police personnels near the Examination Hall, while he heard the shot of fire from the Canteen side. He then rushed towards the spot where he found the injured lying and his brother PW Baud Khan, Lecturer of the College was also present there with him. He also saw accused Mushtaq Ahmad duly armed with pistol, who was immediately arrested alongwith the pistol. He took pistol from the accused which was loaded. One bullet was in its Chamber while 3 were in its Charger. Another Charger having 5 bullets were also recovered and took into possession by the witness. According to the witness the injured was in full senses and the injured reported the occurrence to him which was incorporated in the 'Murasila' Ex. PA. He prepared the injury sheet Ex. PH and site plan Ex. FP. Vide recovery memo Ex. P8 he took into possession a 30 bore pistol marked P.I having a bullet in its Chamber alongwith Magazine having three live bullets in it marked as Ex. P.2. He also recovered through the same memo a separate Magazine having 5 bullets of 30 bore into it marked Ex. P.4. Vide recovery memo Ex. PD he took into possession an empty shell of 30 bore marked Ex. P. 7 and the same was packed and sealed there and then. Vide recovery memo Ex. PC he took into possession a white Bunyan having blood stains and cut marks Ex. P. 5, a shirt having blood stains and cut marks Ex. P. 6 belonging to the deceased, then injured Mohabat Khan, which were sent by the Doctor through Constable Naseemullah. He had also recorded the statements of PWs under section 161 Cr.P.C. The witness prepared the inquest report of the deceased Ex. PK. The weapon of offence alongwith an empty was sent by him to the Laboratory. 7. In his cross-examination the witness stated that he did not mention the presence of PW Baud Khan on the spot at the time of examination of the deceased, the injured, in the 'Karawai' of police in the urasila Ex. P.A. He also did not mention in the said 'Karawai' that the injured was in full senses. 8. Muhammad Kanm Khan, PW. 6, Principal (Rtd.) Governmen Commerce College, Bannu deposed that during the days of occurrence he was working as Principal in Government Commerce College, Bannu. On 2.10.1989 he was present in his office. At about 11.30 AM he heard the voice of fire shot from the Canteen side. At that moment hue and cries where also raised and some one told him that one Mohabat Khan, the brother of Daud Khan, Lecturer of their College, had been fired at by some-body. During those days Supplementary examination of B.Com Classes were going on and so the local police in connection with their duty in the Examination Hall was present inside the College. The police party arrested the accused alongwith the pistol, while the injured was taken to hospital. According to the witness the culprit arrested by the police was the Ex-student of their College, whose name was Mushtaq Khan and he had already given his examination of D.Com and due to non-outing of his result he was not a regular student of the College in those days. 9. In his cross-examination the witness stated that at the time of occurrence his staff members namely, Ghulam Rasul and Fayaz, Instructors of the College were also present in his office. He stated that at the time of firing he was present in his office but he did not see the firing with his own eyes. To a question he replied that it is correct that the accused was brought into his office by certain students of the College and Mir Qadar Canteen Contractor alongwith the pistol. 10. Mir Qadar Shah, who was examined as CW. 1 deposed that he was a Canteen owner in Commerce College, Bannu. On the day of occurrence his Canteen was opened and at the relevant time he had taken tea to the office of the Principal of the College. It was the month of December and the occurrence took place around 10.30 AM and 11.00 AM. When he was present in office of the Principal, he heard the fire shot and went to Canteen in order to inquire about the incident. When he reached in the Canteen, he found the dead injured condition lying on the ground, whereas accused told him that he should take him to the office of the Principal. He took the accused alongwith the pistol to the office of the Principal. Many other boys/students were present the spot, who accompanied him. He handed over the pistol and the accused to the Principal and then he came back to the Canteen. The student present on the spot told him that. tl. > deceased was shot by the accused. 10. After close of the prosecution evidence and hearing the learned counsel for the parties, the learned trial Judge convicted and sentenced the accused-appellant as stated in thp first, paragraph of this judgment. 11. We have heard the learned counsel for the parties and perused the record of the case with their assistance, 12. The learned Sessions Judge while not believing the report lodged by the deceased himself incorporated in the FIR and was alleged to be Dying Declaration and also the presence of the PW Daud Khan, the alleged eye-witness, but, however, keeping in view the over all circumstances of the case and specially in the light of the statement of the accused he led to a conclusion that when the venue of occurrence is not disputed, the altercation and grappling has been admitted by the accused with the only difference of the manner of firing with the shots of which the dead was hit was of the considered opinion that it was the accused who is responsible for the commission of offence and held him guilty and sentenced him under Section 304 Part-I PPC on the ground that the accused being infuriated, as a result of sudden provocation, fired at the deceased as he was posing himself to be a lover of the accused and holding that possibility of passing of wrong overtures by the deceased is there. 13. The learned counsel for the appellant contended that the learned trial Judge has committed a patent illegality by not accepting the defence version on the only ground that the injury on the deceased could not be caused in the manner in which the deceased has sustained it if the appellant and the deceased were in grappling and falling position because in the first instance no opinion/evidence has come on record about the direction of injury and secondly during internal travelling a bullet may adopt any un-predictable/un-conceivable direction, thus in the absence of any positive evidence, this by itself cannot provide sound and solid legal basis for conviction on a capital charge and hence the conviction and sentence awarded to the appellant cannot be maintained in the eyes of law. The earned counsel for the appellant further contended that after making over all assessment of both the prosecution as well as the defence version, the only conclusion which can be drawn safely, is that the appellant is entitled to the benefit of acquittal particularly when the Investigation from the start to the end gives a gruesome pictures of extreme dis-honesty and is full of embroidery work at the hands of the Investigating Officer, thus the learned trial Judge was not justified under the law by returning a verdict of conviction and passing a sentence on the appellant. 14. None of these contentions of the learned counsel for the appellant are maintainable. The accused who give the statement under section 342 Cr.P.C. and also examined himself as DW.l gave a lengthy statement admitting about all the relevant facts of the case as alleged by the prosecution except the commission of the offence. The relevant portion of his statement recorded under Section 342 Cr.P.C. is as under :-- "After a little while, the deceased got knowledge of my presence in the Canteen, entered there and in a threatening mode asked me that why I had come over there when I am not to keep the desired relations with him. I innocently disclosed the purpose of my visit upon which he finding me alone and defence-less, laid hand upon me, started forcibly kissing me and in the process tried to make me nude but I gave him a push and he fell down on the table where the Crockery and other articles of the Canteen owner were lying. He again got up and took out Pistol from his trouser fold and in a very infuriated and highly charged moved step forward and loaded his pistol and said in clear words that he would not leave me unless his immoral desire/lust is satisfied and also threatened me with dire consequences if I resisted. At this moment we grappled with each other for some time and during the process of grappling we fell to the ground and during the process of falling to the ground the pistol also fell on the ground and accidently went off with which he was hit and fell down on the ground. In the meanwhile CW Mir Qadar alongwith 2/3 students entered into the room to whom I requested that I may be taken into safe custody and be taken to the office of the Principal. I was then taken by them to the Office of Principal where I narrated the same story to the Principal in the presence of Canteen owner and the said students and one Lecturer." He also deposed almost in the same words while he examined himself as D.W. 1. The version given by the appellant in respect of the manner of firing with which the deceased was hit does not fit in the circumstances of the case. The site, location and direction of the injury in such way do not support the version of the accused rather it cannot be explained on any other hypothesis that the dead was fired upon somebody else and in the facts of the case it could be only the accused and none else, and thus while agreeing with the learned Sessions Judge we maintain the conviction of the appellant. The learned trial Judge has already taken a lenient view in sentencing the accused-appellant under section 304-A, P.P.C. to 10 years R.I., which do not deserve any further leniency. In the circumstances of the case this appeal is rejected and the impugned conviction under section 304 Part-I P.P.C. and sentence of imprisonment of 10 years is upheld. The revision-petition is also dismissed qua the conviction under section 304-A P.P C. and the sentence of imprisonment but is modified to the extent that the accused-respondent Mushtaq Ahmad shall pay a fine of Rs. 20,000/- in default of payment of which he shall suffer imprisonment for two years and shall also pay a compensation under section 544-A Cr.P.C. of Rs. 50,000, in default of payment of which the convict-respondent shall suffer imprisonment for six months, which shall be in addition to the mode of recovery of compensation provided in the section itself. (M.S.N.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 1783 Present: sardar muhammad raza, J. HIDAYATAULLH-Petitioner versus ABDUL MAJEED and others-Respondents Cr. R. No. 2 of 1995, dismissed on 29.10.1995. Revision-- —-S. 302/307/34 of Pakistan Penal Code, 1860--Murder--Offence of~ Acquittal of-Challenge to-Revision petition was filed on 19.1.1995- Complainant had a right for appeal by Act XX of 1994 with effect from 14.11.1994 and hence revision petition was not maintainable and matter having become time barred, revision now could also be not treated as an appeal—Objection of—When a right of appeal is given, no revision can be filed especially beyond period provided for appeal because within period of limitation, a revision could be or could have been converted into appeal, in the circumstances-Held : Revision is therefore not maintainable-Revision Petition dismissed. [Pp. 1783 & 1784] A & B Mr. Gohar Zaman Kondi, Advocate for Petitioner. Mr. Dost Muhammad Khan, Advocate for Respondent. Muhammad Khan Khakwani, Advocate for State. Date of hearing: 29.10.1995. judgment Involved in the murder of one Mushtaq Ahmed son of flazrat Gul vide FIR # 45 dated 11.10.1986, Police Station Dadiwala, Bannu lodged by one Hidayatullah, the accused named Abdul Majid and Sarwar Khan were acquitted by the learned Additional Sessions Judge, Lakki of the charge under sections 302/307/34 PPC through judgment dated 19.7.1994 and hence this revision by complainant Hidyatullah. 2. A strong preliminary objection was raised by Mr. Dost Muhammad Khan learned counsel for the accused-respondents fully supported by Mr. Muhammad Khan Khakwani learned State counsel that by the time the revision petition was filed on 19.1.1995, the complainant Hidayatullah had a right for appeal given to him by Act XX of 1994 with effect from 14.11.1994 and hence the revision petition was not maintainable and the matter having become time barred, the revision now could also be not treated as an appeal. 3. Mr. Gohar Zaman Kundi, learned counsel for the petitioner alleged that the right accrues from the date of judgment i.e. 19.7.94 and even if he had brought an appeal on the very date of Act (14.11.1994), it would have been rendered as time barred. He further added that right of appeal - was a substantive right and could not be given retrospective effect. To the latter part of the argument, I do not subscribe because the argument would have been valid, had the right of appeal been taken away from the one who was so vested with such right. In the instant case, it is a right which is being view to the complainant-petitioner and not snatched away from him. The retrospectively, in the circumstances, rather benefits the complainant. 4. From the argument of all the three learned counsel, I come to this clear conclusion that the complainant could have filed the appeal which he failed to file till 19.1.1995 and that the instant revision could also be not treated as an appeal, the latter having become time barred by then. 5. The right of appeal, as such, would be treated subjectively and by the itself without referring to the party in whom it vested or is likely to vest. In this perspective, the right of appeal, as such, vested in the State which would file the same within six months. It means that for six months after the judgment the right remained in existence. It was never vested in the complainant nor the limitation had expired when on 14.11.1994 it was given to the complainant as well. This right was created through an Act of legislature nor in existence prior thereto and thus the complainant could file an appeal either on 14.11.1994 or upto thirty days thereafter. 6. The right of appeal before the expiry thereof, through an Act of legislature, happened to be vested in the complainant as well with the only difference that for him the period of limitation was thirty days instead of six months. Rather, the period prescribed for him was full at his disposal on the date of the promulgation of Act XX of 1994. Still the complainant wasted two complete months and instead came with the instant revision on a date when right of appeal had stood vested in the complainant as well. Obviously, when a right of appeal is given, no revision can be filed especially beyond the period provided for the appeal because within the period of limitation, a revision could be or could have been converted into appeal, in the circumstances. The instant revision is, therefore, not maintainable. 7. Even on merits, the learned counsel for the accused-respondents and the learned State counsel were in perfect agreement with each other ""^ that it was the weakest possible case ever. This being besides the point that ^ no acquittal can be converted into conviction through a revision petition. 8. A few objections regarding jurisdiction of the trial Court were raised by the learned counsel for the petitioner but those cannot be gone into in the wake of the legal position that the complainant had a right of appeal which he failed to exercise with the limitation and hence nothing could be heard in revision. It is hereby dismissed. (M.S.N.) Revision petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1789 (DB) Present: RASHID AZIZ KHAN AND RAO NAEEM HASHIM KHAN, JJ. MUHAMMAD RIAZ--Appellant versus STATE-Respondent Criminal Appeal No. 153 and Murder Reference No. 67 of 1992, heard on 3 rd September, 1995. (i) Medical Jurisprudence- —If a person fires with a pistol from a distance of 4/5 feet, there cannot be blackening on the wound-Blackening can be noticed if a pistol is fired from a distance of one foot. [P. 1793] A (ii) Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302--Conviction/Sentence~Challenge to~Appreciation of evidence-­ Ocular account is not free from doubt-Both the eye-witnesses were disbelieved as far as the involvement of three acquitted accused-Medical evidence contradictory to ocular testimony-Unsafe to rely upon interested and inimical eye-witness unless strong corroboration was available. [P. 1793] B & C Rana Muhammad Arif, Advocate for Appellant Syed Fazal Hussain Jaffari, Advocate for the State. Date of hearing: 3rd September, 1995. judgment Rashid Aziz Khan, J.--Muhammad Riaz (29), with his brother Muhammad Nawaz (26), their father Umar Din (60) and Muhammad Dyas (29) alongwith oneZulfiqar were sent up for trial by Police Station Bambanwala, Tehsil Daska, District Sialkot for the murder of Ahsan Ullah. Zulfiqar before commencement of trial was murdered, therefore, proceedings qua him abated. Additional Sessions Judge, Sialkot, vide judgment, dated 19-1-1992 gave the benefit of doubt and acquitted Muhammad Nawaz, Umar Din and Muhammad Ilyas of all the charges. Muhammad Riaz was, however, found guilty under section 302, P.P.C. and sentenced to death with a fine of Rs. 50,000, or in default of payment of fine to undergo R.I. for three years. It was further directed that the fine, if recovered, shall be paid to the legal heirs of the deceased as compensation. He was, however, acquitted for an offence under section 307, P.P.C. The convict has appealed. Case is also before us for confirmation of death sentence. Both these matters shall be disposed of by this judgment 2. F 'osecution story in brief, as disclosed in F.I.R. Exh. P.F./1 lodged by Al ih Rakha, P.W. 4, was to the effect that he was an agriculturist and had foi sons. Eldest son was Ahsan Ullah. On 26-2-1989 at about 1 p.m., first i nformant with bis sons Irfanullah and Amanullah was busy in their agricultural pursuits. He saw Riaz armed with rifle, and Nawaz, empty-handed, going near Seme-drain. A few minutes thereafter he saw Hyas and Zulfiqar accused on a motor-cycle alongwith Ahsan Ullah, his son, going on the bank of Seme-drain. Riaz and Nawaz accused were standing near the Dera of Muhammad Hussain Lambardar. Zulfiqar, who was driving the motor-cycle, stopped near Nawaz and Riaz and all of the three got down. Nawaz put a piece of cloth around the neck of Ahsan Ullah; Ilyas raised a Lalkara thai he should be fired at. Riaz fired at Ahsan Ullah hitting on the right side of his chest. Zulfiqar fired his revolver hitting on the right arm of Ahsan Ullah. First informant and others raised a Lalkara, whereupon Riaz fired at them but missed. Ahsan Ullah fell down at the spot. Riaz and Nawaz ran away on foot, and Ilyas and Zulfiqar decamped on their motor-cycle. Ahsan Ullah breathed his last on the way to hospital. Motive for the occurrence was that 4/5 days earlier Ahsan Ullah and Muhammad Nawaz quarrelled. Ahsan Ullah gave fist blows to Muhammad Nawaz. While leaving, Nawaz had threatened that he would take revenge of his insult, therefore, the present occurrence. Occurrence took place on 26-2-1989 at 1 p.m. on the bank of Semedrain near the Dera of one Muhammad Hussain, Lambardar, 15 k.m. from Police Station Bambanwala. Complaint Exh. P.F. was made on 26-2-1989 at 3.30 p.m. by Allah Rakha, P.W. 4, father of the deceased outside the mortuary of Civil Hospital, Daska, which was recorded by Muhammad Akmal, S.I. P.W. 12, on the basis of which formal F.I.R. Exh. P.F./l was drawn the same day by Ghulam Hussain, M.H.C., P.W.6. Muhammad Akmal, S.H.O., P.W. 12, on 26-2-1989 recorded the statement Exh. P.F. of Allah Rakha and sent the same to police station for registration of a case. He examined the dead body and prepared injury statement Exh. P.A. and inquest report Exh. P.A./1 and sent the dead body for autopsy. Blood-stained earth from the spot was secured vide memo. Exh. P.G. He recorded the statements of the eye-witnesses. Last worn blood­ stained clothes of the deceased were taken into possession vide memo. Exh. P.D. He got the site plan prepared from the Patwari. Thereafter he was transferred. Jaffar Hussain, S.H.O. P.W. 10, had also conducted the investigation and arrested the accused. Muhammad Riaz accused while in custody led to the recovery of rifle P. 4 from Dera Baghwala, which was secured vide memo. Exh. P.E. He got the memo, attested from witnesses. After usual investigation he challaned the accused. P.W.I Dr. Muhammad Nasrullah Khan, Medical Officer, Civil Hospital, Daska on 27-2-1989 conducted the post-mortem examination on the dead body of Ahsan Ullah and found the following injuries :— (1) A lacerated fire-arm wound 1-1/2 c.m. x 1-1/2 c.m. with abrasion 1-1/2 x 1 c.m. around the medial aspect of wound. The blackening and tattooing was present around the wound on the front of right side of chest, horizontal in shape, 1-1/2 c.m. below and medial to the right nipple with inverted margins just near the sternum bone. (2) A lacerated fire-arm wound 2 x 2-1/2 c.m. in dia eter on the lateral aspect of right side of chest with distance of 17 c.m., below and lateral to the right nipple and about 17 c.m. from injury No. 1 with everted margins. The fatty tissues were protruding out of the wound. This was the exit wound of injury No. 1. (3) A lacerated fire-arm wound 3/4 c.m. in diameter on the back of right fore-arm with blackening and tattooing around the wound, 16 c.m. from the wrist joint of right side with inverted margins. This was entry wound. A lacerated fire-arm wound 1 c.m. in diameter with verted margins on the front of right fore-arm, 13 c.m. from the right wrist joint This was exit of injury No. 3. (4) An abrasion 8 e.m. x 1 c.m. oblique in shape on front of left leg in middle part. In his opinion the death had occurred due to injury No. 1, was sufficient to cause death in the ordinary course of nature as it had caused shock and haemorrhage. 3. Prosecution in support of its case had produced 12 witnesses in all. Dr. Muhammad Nasrullah Khan P.W. 1 had conducted the post-mortem examination. Allah Bakhsh, Patwari, P.W. 2, on the directions of the police had prepared site plan Exh. P.C. of the spot Muhammad Sharif, P.W.3 had identified the dead body at the time of post-mortem examination and witnessed the recovery of rifle P. 4 at the instance of Muhammad Riaz appellant. He had signed the recovery memo, as well. Eye-witness account was furnished by Allah Rakha and Man Ullah, P.Ws. 4 and 5, respectively. Ghulam Hussain, Moharrir, P.W. 6 had drawn the formal F.I.R. Exh. P.F./1. Munawar Ahmad, P.W.7 had deposed about the earlier incident between the parties and had also witnessed the recovery of rifle P.4. Ghulam Qadir, F.C., P.W.8 had produced last-worn clothes of the deceased after autopsy. P.W. 9 Khalid Mehmood, H.C. was entrusted with the non-bailable warrants of arrest of the accused. The case was initially investigated by Muhammad Akmal Bhatti, the then S.H.O., P.W. 12, and thereafter by Jaffar Hussain, S.H.O. P.W.10. At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution allegations and pleaded innocence. The appellant, however, neither produced defence evidence nor appeared in his defence on oath. 4. It was contended by learned counsel for the appellant that the case against him was not established at all. Submitted that the ocular account was in conflict with the medical evidence because blackening was found on both the wounds, whereas, according to the prosecution one injury was caused with pistol from a distance of 4 feet, which could not be possible. Argued that the prosecution story as given by the eye-witnesses was highly improbable and unnatural therefore, be disbelieved. Argued that the eye­ witnesses, who are closely related and inimical, have been disbelieved as far as the acquitted accused are concerned therefore, may not be relied upon against the appellant without corroboration which is not available. The contentions were opposed by learned counsel for the State. 5. We have heard the learned counsel and gone through the file. The prosecution in order to prove its case had mainly relied upon the ocular account furnished by Allah Rakha and Man Ullah, P.Ws. 4 and 5, respectively. They sought corroboration from medical evidence and the evidence of recovery of fire-arm at the instance of the appellant. As far as the recovery of rifle at the instance of the appellant is concerned, it may not be of much consequence because no empty was secured from the spot and the rifle was sent to the Expert who could not determine when it was fired last The trial Court had also disbelieved the recovery of rifle. We have noticed that the recovery of rifle was rightly ruled out of consideration because the Dera from where it was recovered was not in possession of the appellant. According to the prosecution evidence, the deceased was fired at by Muhammad Riaz appellant with rifle and thereafter Zulfiqar fired at him with pistol. The distance from which they fired at the deceased was 4/5 feet. Strangely enough both the injuries had blackening and exit wounds as well. If a person fires with a pistol from a distance of 4/5 feet, there cannot be blackening on the wound. Blackening can be noticed if a pistol is fired from a distance of one foot. In these circumstances, we are of the view that the medical evidence does not lend any corroboration to the prosecution. Instead it contradicts it. Ocular account was furnished by Allah Rakha and Man Ullah, P.Ws. 4 and 5, respectively. Allah Rakha was father and Man Ullah was real brother of the deceased. They were put to the test of lengthy crossexamination wherein both of them stated that they had strong enmity against the accused persons, so much so they were not even on speaking terms with each other. They further admitted that 4/5 days before the present occurrence the accused side had got & case registered against Ahsan Ullah deceased for pigeon theft wherein he was arrested and subsequently bailed out. If the statement of both the witnesses is accepted about the registration of the case, then the deceased sitting on the motorcycle of the accused persons on the fateful day would be highly unnatural. In view of the background of such an enmity he could not be expected to go for a ride with the enemies. Both the eye-witnesses stated that the accused persons brought Ahsan Ullah on the motorcycle and fired at him. This part of the statement appears to be unnatural. There was no occasion for the assailants to park the motorcycle near the witnesses and then murder the deceased. They could have taken him to an isolated place. We feel the ocular account is not free from doubt. Both the eye-witnesses were disbelieved as far as the involvement of three acquitted accused was concerned. Eye-witnesses had ascribed specific role to each of them, yet the trial Court gave the benefit of doubt and acquitted them. In such circumstances, we are of the view that the eye-witnesses cannot be relied upon qua the appellant unless strong corroboration was available, which as discussed above, is missing. The upshot of the discussion is that it would be extremely unsafe to rely upon interested and inimical eye-witnesses. Therefore, giving the benefit of doubt we accept the appeal and set aside the conviction of the appellant. The appellant shall be released forthwith if not required in any other case. Death sentence is not confirmed. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1794 Present: raja abdul Aziz bhatti, J SARFRAZ and another-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 712-B of 1995, decided on 16th October, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Penal Code (XLV of 1860), S. 302/324/337-F/148/149--Bail-- Grant of-Prayer for-Accused was attributed only one simple injury to a prosecution witness-Participation of accused in the alleged occurrence and inflicting injury with weapon of offence having some deformity in his ight shoulder and hand needed specific evidence and material on record- - Accused was admitted to bail in circumstances. [P. 1795] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Penal Code (XLV of 1860), S. 302/324/337-F/148/149»Bail» Occurrence taking place at the instance of the accused who allegedly caused injury to the deceased with his weapon-Bail was refused in circumstances. [P. 1795] B Ch. Muhammad Iqbal, Advocate for Petitioners. Ch. Afrasiab Khan, Advocate for the Ccuiplainant. Qazi Ahmad Naeem Qureshi, Advocate for the State. Date of hearing: 1.10.1995. order Brief facts of the case are that on 15-5-1995 Arshad Mahmood lodged report in the Police Station Dhudial District Chakwal. On his report case F.I.R. No. 50 under sections 302, 324, 337-F, 148/149, P.P.C. was registered on the same day against the accused. There are six accused in the case namely Sarfraz and Muhammad Feroze, the present petitioners, Muhammad Javid, Iftikhar Hussain, Muhammad Iqbal and Naveed Abbas. Both the present petitioners were armed with hatchets and their co-accused were also armed with fire arms and other deadly weapons. The allegation against the accused is that they committed murder of Ghulam Raza. Ghulam Raza received seven injuries, out of which one was in front of the neck and there was an exit wound. This injury was attributed to Muhammad Javid coaccused who is not petitioner before the Court. According to the learned counsel for the complainant description of the remaining injuries is that there was a lacerated wound on the head of the deceased. One injury on the back side of the chest. One injury on the left shoulder. One injury on the right cheek and one injury on the back side on the right hand of the deceased. According to him injury No. 7 was attributed to Iftikhar Hussain co-accused and rest of the injuries were not specifically mentioned/ attributed to any one as far as the F.I.R. is concerned. There was another injured Rashid Mahmood, who received six injuries which were attributed to Muhammad Iqbal, Naveed and Iftikhar Co-accused. Similarly Pervaiz Akhtar was also injured in this case who received seven injuries which were attributed to Iftikhar Hussain, Naveed Abbas and Muhammad Iqbal. One injury in front of the chest was attributed to Sarfraz petitioner and one sharp edge head injury on the person of the deceased was attributed to Feroze. 2. Learned counsel for the petitioners seeks bail for the petitioners on the grounds that Sarfraz has not been attributed any injury to the deceased. He has been allegedly attributed only on injury to Pervaiz which was caused with blunt weapon simple in nature. The injury on the head of Ghulam Raza deceased was attributed to Feroze but this too was simple in nature. He further submits that Sarfraz is an old patient. His right shoulder is frozen and he is unable to perform any work with right hand due to deformity of fingers and painful shoulder. He is suffering from this condition since prior to the alleged occurrence. He prays that this petitioner is also entitled to the concession of bail, even on this ground of ill health. Learned counsel further submits that Feroze petitioner is an old man of 75 years with poor physique and general hygenic condition. He has placed on record a certificate issued by the Medical Officer, District Jhelum, wherein it is written that patient complains of haematuria and difficult breathing. He stated that clinically it seems to be case of cardiac asthma due to enlargement of the heart 3. On the other hand, learned State counsel assisted by the counsel for the complainant vehemently opposed the bail petition. They contend that the petitioners' name have been mentioned in the F.I.R. There is no delay in lodging the report. It is day light occurrence witnessed by the eye-witnesses. Motive is also mentioned in the F.I.R. The role attributed to the petitioners/accused is specific. Feroze inflicted injury on the head of the deceased. While Sarfraz petitioner/accused inflicted injury on the chest of Pervaiz Akhtar P.W. They stated that medical report regarding physique of the petitioners do not show the ailment of the like nature on which basis the petitioners may be granted bail. 4. I have heard the arguments advance by the learned counsel for the parties and gone through the record. As far as the case of Sarfraz is concerned, he is attributed only one simple injury on the person of Pervaiz Akhtar P.W. Besides this he has unsound physique, especially his right shoulder and hand. His participation in the alleged occurrence and inflicting injury with weapon of offence, needs specific evidence and material on record. In view of the above, he is granted bail in the sum of Rs. 50,000 with one surety in the like amount to the satisfaction of the Trial Court. As far as the case of Feroze is concerned, as per contention of the learned counsel for the complainant, he is the principal accused of the occurrence. On his instance this occurrence had taken place. He, with his weapon of offence, caused injury on the person of the deceased. In view of the above, I see no merit for grant of bail in bis case. As such, bail petition to his extent is dismissed. (M.A.A.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1796 Present: mian muhammad ajmal, J. TAWIZ KHAN-Petitioner versus MALANG KHAN and 6 others-Respondents Criminal Miscellaneous No. 58 of 1995, decided on 15th October, 1995. Criminal Procedure Code, 1898 (V of 1898)— -—S. 497(5)--Pakistan Penal Code, 1860 (XLV of 1860), S. 302/324/34- Canceilation of bail-Accused not charged in the F.I.R. as it was pitch dark at the time of occurrence-Statement of the son of injured lady recorded after two days of the occurrence claiming to be an eyewitness could not be given any consideration because, had he seen the occurrence he being closely related to the deceased and injured would have immediately disclosed the names of the assailants-Injured lady also could not identify the accused in the dark night—Discretion exercised by the Sessions Court in granting bail to accused did not suffer from any infirmity-Accused were on bail for the last about eight months and they were not alleged to have abused or misused this concession in any manner-Petition for cancellation of bail was dismissed. [P. 1798] A Muhammad Akbar Khan Swati, Advocate for Petitioner. Mufti Muhammad Idris and A.A.G. for the State. Date of hearing: 15.10.1995. judgment Petitioner herein, has sought cancellation of bail granted to accusedrespondents Nos. 1 to 6 by the learned Sessions Judge, Abbottabad vide his order, dated 27.2.1995 in case F.I.R. No. 28, dated 9.1.1995 under section 302/324/34, P.P.C., Police Station Cantt., Abbottabad. 2. As per F.I.R. No." 28, dated 9.1.1995 Taveez Khan complainant reported at 7.30 p.m. in Civil Hospital, Abbottabad that he alongwith his wife Mst. Bala Nista, and nephews Gul Khan and Zarif Khan were going home at Nariyan, Abbottabad in Motor Car No. PJT 8143 and when they reached near Paki Gali at about 6.00 p.m. they were fired at by the unknown persons with klashnikov as a result of which Zarif Khan and Gul Khan were killed at the spot while Mst. Bala Nista was seriously injured. The culprits thereafter ran away in the darkness of night. On 11.1.1995 Noor Khan in his statement under section 161, Cr.P.C. charged the present respondents. Their application for bail was rejected by M.I.C., Abbottabad on 8.2.1995, whereafter they approached the Sessions Court for the grant of bail which was allowed and the accused-respondents were released on bail. The complainant-petitioner has now approached this Court for the cancellation of bail granted to the accused-respondents. 3. Learned counsel for the petitioner contended that although the accused-respondents were not charged in the F.I.R. by the complainant yet Noor Khan on 11.1.1995 in his statement under section 161, Cr.P.C. charged all the accused as an eye-witness for the commission of the crime. According to his statement on the eventful evening he, while returning home, saw the accused-respondents duly armed standing on the open plot In the meantime motorcar came, which was signalled by Aslam accused to stop and when the car was stopped Ziarat Gul and Mala Khel commanded the accused party to fire whereupon accused Haji Kooba Gul, Malang Khan and Haji Awal Khan fired and killed Zarif Khan and Gul Khan injured his mother Mst. Bala Nista. He stated that due to fear he did not disclose about the occurrence. Learned counsel urged that klashnikov was recovered from the house of Malang Khan accused about which the Fire-Arms Expert has reported that the crime empties were fired from the said weapon. He also referred to the statement of Mst. Bala Nista who has also charged the accused-respondents for the commission of the offence. He submitted that in such circumstances there are reasonable grounds to believe that the accused-respondents are guilty of the offence punishable with death or imprisonment for life therefore, they are not entitled to the concession of bail, and their bail requires to be recalled. 4. Learned counsel for the accused-respondents contended that as for the statement of Mst. Bala Nista is concerned it is not worth reliance as it was recorded after 6 days of the occurrence. Likewise the statement of Noor Khan is also not worth consideration as he deposed as an eye-witness after two days. He submitted that admittedly the occurrence has taken place at pitch dark night which the complainant himself has admitted in the F.I.R. that the unknown accused fled away due to darkness of night, therefore, in the attending circumstances both the statements at this stage cannot be given any value. As for the recovery of weapons vis-a-vis the expert report are concerned, they too cannot be taken into account at this stage as expression of any opinion about the same would amount to pre-empting the duty of the trial Court and it may prejudice the trial. He argued that the crime empties were recovered on the same very night but the same were not sent to the Forensic Science Laboratory immediately and were kept in Malkhana for considerable time. After the recovery of klashnikov on 4.2.1995, the weapon and the crime empties were sent to Laboratory with considerable delay, which were received there on 7.3.1995. The crime empties should have been sent to the Laboratory soon after their recovery and upon the recovery of eap on it could be sent to find out whether the same were fired with the said weapon. The retention of empties and their despatch alongwith weapon and that too with considerable delay cast doubt upon the recoveries. Learned counsel further argued that the post-mortem reports of the two deceased and the medico-legal report of the injured reveal that they received injuries on the backsides, whereas they were allegedly fired from the front side of the car. He submitted that the learned Sessions Judge has properly exercised his discretion and there being no allegation of the misuse or abuse of bail, the order deserves no interference from this Court. 5. I have given the consideration to the submission of the learned counsel for the parties. I find substance in the arguments of the learned counsel for the respondents. The accused-respondents have not been charged in the F.I.R. on the ground that there was pitch dark at the time of occurrence. Noor Khan who is son of the injured lady came forward after 2 days of the occurrence claiming to be an eye-witness who cannot be given any consideration, for had he seen the occurrence, he would have disclosed the names of assailants immediately as his very close relatives were killed and injured. Similar is the position regarding the statement of Mst. Bala Nista, when the complainant who escaped unhurt could not identify the accused in the dark night, how could a lady who sustained serious injuries identify the accused. I would refrain to dilate in detail on the evidentiary value of the material so far brought on the record, lest it may not prejudice the case of the either party. Moreover, it is duty of the trial Court to appreciate the evidence at the trial. On tentatiye assessment of the evidence placed on record, I do not find any unreasonableness or impropriety in the exercise of discretion by a competent Court in granting bail to the accused respondents. The respondents are on bail for the last about eight months and there is no allegation that they have abused/misused the concession of bail in any manner. In consequence to the above, this application fails, hence is dismissed. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1798 Present: tassaduq russian jilani, J. ASGHAR All-Appellant versus STATE-Respondent Criminal Appeal No. 61 of 1988/BWP, decided on 18th September, 1995. Pakistan Penal Code, 1860 (XLV of 1860)- —S. 409-Prevention of Corruption Act (II of 1947), S. 5(2)-Sentence- Challenge to-Appraisal of evidence-Case was got registered against the accused in haste—On the application moved by the accused for settlement of accounts the same was not done fairly and was not conclusive as the only unrebuttable document for deposit or non-deposit of the embezzled amount could have been the bank statement which was allegedly not supplied by the bank to the Department-Statement of accused under S. 342, Cr.P.C. was also recorded in slipshod manner-Accused not confronted with the position that the embezzled amount, subject-matter of the case, was not part of the amount already deposited and neither the deposit slips nor Bank statements were put to him to enable him to explain his position with regard to the charge-Accused was acquitted in circumstances. [Pp. 1801 & 1802] A, B & C Sardar Muhammad Aslam Khan, Advocate for Appellant. Ch. Abdul Nabi, Advocate for the State. Date of hearing: 18th September, 1995. judgment Through this criminal appeal, the appellant has challenged the judgment, dated 28.5.1988 passed by the learned Special Judge, Anti- Corruption, Bahawalpur whereby he was convipted under section 409, P.P.C. and sentenced to suffer R.I. for two months and a fine of Rs. 500 in default whereof to undergo further R.I. for one month. He was also convicted under section 5(2) of the Prevention of Corruption Act, 1947 and sentenced to two months' R.I. and a fine of Rs. 200 in default whereof to undergo R.I. for one month. 2. The prosecution case as given in the F.I.R. Exh. P.W. 8/A (No. 495, dated 24.11.1977 Police Station Civil Lines, Bahawalpur) is that during appellant's posting from 21.1.1976 to May, 1977 as Rent Controller of the Auqaf Department, he received rent of the shops belonging to the department from the tenants amounting to Rs. 30,000 and did not deposit the same in the Bank account of the department. From August, 1975 to September, 1977 he had deposited an amount of Rs. 8,013 out of the afore- referred amount whereafter he was called to deposit the remaining one and on his failure, the case was registered. As the embezzled amount was related to more than one transactions, five challans were submitted in the learned trial Court and the amount embezzled in the instant case was Rs. 214. 3. During trial, the prosecution produced nine witnesses. P.W. 1. is Muhammad Shafi Akhtar who was, at the relevant time, posted as Head Clerk in the Auqaf Department. He produced Exh. P. 1. to Exh. P. 5 and Exh. P. W. 2/A which were taken into possession by the Investigating Officer vide memo. Exh. P.W. 2/B. Habib Ahmad Ghauri (P.W. 5) was the District Manager of the Auqaf Department. He submitted that out the total embezzled amount, after scrutiny, it was found that an amount of Rs. 14,434 had already been deposited and Rs. 16,366 were outstanding against the appellant. He presented his report in writing to the Investigating Officer which is Exh. P.W. A/2. A detailed break-up of the amount received alongwith the relevant challan numbers were also produced by him before the Investigating Officer which are marked as Exh. P.W. 3/A, Exh. P.W. 3/B and Exh. P.W. 3/C. Ghulam Mustafa S.I. appeared as P.W. 6. Islamuddin appeared as P.W. 2. He stated that he paid the rent amount of Rs. 56 to Asghar Ali appellant and the appellant acknowledged the same by issuing receipt Exh. P.W. 2/A. Similarly Abdul Ghafoor (P.W. 3) stated that he paid Rs. 22 to the appellant as a rent of the shop and he was issued receipt Exh. P.W. 3/A. P.W. 4 Shamshad Ali stated that he paid Rs. 136 and was issued receipt Exh. P.W. 4/A by the appellant Mian Sanaullah appeared as P.W. 7. Haji Muhammad Abdullah appeared as P.W. 8 and Abdul Haq appeared as P.W. 9. These are more or less formal witnesses. 4. When examined under section 342, Cr.P.C. the appellant denied the prosecution story and denied having received the amount in question. He attributed false implication to inter se rivalry within the department. 5. The learned counsel for the appellant has made following submissions in support of his appeal:- (i) That the so-called receipts produced by P.W. 2 Islamuddin, P.W. 3 Abdul Ghafoor and P.W. 4 Shamshad Ali are photostat copies and the prosecution has neither produced the original receipts nor receipt books without which it is not proved beyond a shadow of doubt that these were genuine receipts evidencing payment of the rent to the appellant; (ii) P.W. 1 and P.W. 5 admitted that out of the embezzled amount i.e. Rs. 30,800, an amount of Rs. 14,434 already stood deposited and that only Rs. 16,366 remained to be accounted for. However, there is nothing on record to indicate that the rent paid by P.W. 2, P.W. 3, P.W. 4 which is the subject-matter of this case, is part of the embezzled amount which remains to be accounted for; and (iii) That the case was registered as far back as 1977 and since then the appellant is suffering the agony of trial and uncertainty. 6. The learned State Counsel has not seriously opposed this appeal and submits that the prosecution has not been able to point out as to when the amount was embezzled and as to whether the amount embezzled, which is the subject-matter of this case, is not part of the amount which already stood deposited i.e. Rs. 14,434. 7. I have heard learned counsel for the appellant as well as for the State and have also gone through the record. 8. P.W. 1 Muhammad Shafi, Head Clerk of the Auqaf Department in his cross-examination admitted that after the alleged embezzlement came to light, the appellant gave an application to the department for settlement of accounts and it was found that an amount of Rs. 14,434 had already been deposited. He further admitted that the appellant had made an application t o he department that the bank statement with regard to deposit of rent be requisitioned. The bank did not send the same despite being asked by the department again and again. He stated that the bank expressed its regret for not sending the requisite statement. Similarly Habib Ahmad Ghauri (P.W. 5) who was the District Manager of the Auqaf Department admitted that after checking the record it was found that out of the embezzled amount an amount of Rs. 14,434 already stood deposited and the remaining amount was embezzled by the appellant In cross-examination he admitted that after registration of the instant case, the appellant had given an application to the department for settlement of accounts and after the settlement it was found that the afore-referred amount (Rs. 14,434) had already been deposited. He conceded that he was not aware as to whether any prior verification was made from the concerned Bank about the outstanding/embezzled amount of Rs. 16,366. When Investigating Officer, Ghulam Mustafa (P.W.) 6 was crossexamined, he admitted that he did not verify from the bank about the deposit or non-deposit of the amount outstanding against the appellant. So far as the settlement of accounts are concerned, according to the Investigating Officer, the same was done by Muhammad Shaft Akhtar, a Head Clerk of the Auqaf Department (P.W. 1) and he (the Investigating Officer) was never associated with the same. 9. The aforegoing analysis of the prosecution evidence would indicate that the case was got registered in haste and when the appellant moved an application for settlement of accounts, it was found that an amount of Rs. 14,434 already stood deposited and the only amount which remained to be account for was Rs. 16,366. About this amount the Investigating Officer merely relied upon the opinion of P.W. 1 Muhammad Shafi Akhtar (Head Clerk) who was entrusted with the assignment of settlement of accounts and he admitted that he was neither associated with this exercise nor he made any investigation of his own. In cross-examination, he further stated that he did not even check the concerned Bank account qua the non-deposit of the afore-referred amount. The admission of P.W. Muhammad Shafi that during settlement of accounts, the appellant had requested that the Bank statement be requisitioned and despite reminders to the Bank, the same was not supplied to the department further proves that the so-called settlement of accounts was neither fair ndr conclusive as the only unrebuttable document for deposit or non-deposit of the embezzled amount would have been the Bank statement with regard to deposits. 10. Notwithstanding the quality of the exercise carried out in the name of the settlement of accounts the prosecution has failed to prove that the payments made through Exhs. P.W. 2/A, P.W. 3/A and P.W. 4/A were part of the amount which was not deposited in the Bank account of the department This amount could very well be part of the amount of Rs. 14,434, which stood already deposited in the account. 11. The case was registered on 24.11.1977 and the learned trial Court convicted the appellant on 28.5.1988 i.e. almost eleven years after registration of the case. The appeal against the said conviction is being disposed of almost after seventeen years and that too on an evidence which failed to build up the edifice of the prosecution case strong enough to face a judicious scrutiny. 12. The statement of the appellant recorded under section 342, Cr.P.C. shows that the same was recorded in a slipshod manner. The prosecution witnesses admitted that out of the total embezzled amount (Rs. 30,800) Rs. 14,434 had already been deposited. It should have been put to the appellant that the embezzled amount which is subject-matter of this case was not part of the amount already deposited. Neither the deposit slips nor Bank statements were put to him with a view to enable him to explain his position with regard to the charge. 13. For what has been discussed above, the prosecution has failed to prove its case beyond a shadow of doubt against the appellant to sustain a conviction under section 409. P.P.C. and 5(2) of the Prevention of Corruption Act, 1947. Resultantly, this appeal is allowed and the judgment, dated 28.5.1988 passed by the learned Special Judge, Anti-Corruption, Bahawalpur, is set aside and the appellant is acquitted of the abovesaid charges. He is already on bail and shall be discharged of the bail/surety bonds. (M.A.A.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1802 (DB) Present: rashid Aziz khan and raja muhammad khurshid, JJ. MUHAMMAD RIAZ-Appellant versus STATE-Respondent Criminal Appeal No. 274 and Murder Reference No. 161 of 1992, decided on 23rd October, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)— —S. 302(b)--Conviction/Sentence--Challenge to-Appreciation of evidence-­ Eye-witnesses who were natural witnesses of the occurrence had made straightforward and convincing statements and their testimony was corro­ borated by medical evidence as well as by the recovery of blood-stained Chhuri from the accused--F.I.R. had been promptly registered-Conviction of accused was maintained in circumstances. [Pp. 1807&1808] A,C,D&E (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302(b)-Sentence~Mitigating circumstances-Motive for the murder remained shrouded in mystery—No previous enmity existed between the parties and the accused had given a solitary blow to the deceased with an ordinary Chhuri which proved fatal-Sentence of death awarded to accused by Trial Court was altered to imprisonment for life in circumstances. [P. 1808] F (iii) Pakistan Penal Code, 1860 (XVL of 1860)-- —S. 302(b)-Benefit of doubt-Administration of justice-Acquittal and conviction of different accused on the same evidence-If benefit of doubt is extended to some of the accused persons in a case, it is only with a view to enforce the principle of safe administration of justice in criminal matters and it is not correct to say that in such a case the Court by implication has held that ocular evidence as false-In fact grain is to be sifted from the chaff in order to protect the innocent and to punish the guilty. [P. 1807] B Munib Iqbal, Advocate for Appellant. Malik Muhammad Aslam, Advocate for the State. Date of hearing: 23.10.1995. judgment Raja Muhammad Khurshid, J.--The occurrence took place at about 7.30 a.m. on 19.11.1990 in the area of Mohalla Rasul Nagar, Line Par, Police Station Kamoke City, District Gujranwala, in which Muhammad Khali que lost his life whereas three persons including the complainant were injured. 2. The complainant Muhammad Malik reported to the police vide his statement Exh. P.E. that he was working as a labourer. About 2/3 days prior to the occurrence, he had picked up a row with Muhammad Riaz son of Ghulam Ali caste Changar over the cutting of electric wires. The aforesaid Muhammad Riaz threatened that he will see to it. In pursuance of the aforesaid threat, Muhammad Mushtaq a brother of Muhammad Riaz aforementioned visited the house of the complainant while latter's brother Muhammad Khalique deceased was also present in the house. Muhammad Mushtaq told the complainant that the latter was called out in the street by his father Ghulam Ali and brother Muhammad Riaz. The complainant went out in the street and found Ghulam Ali empty-handed, Muhammad Riaz armed with Chhuri waiting there. Ghulam Ali raised a Lalkara that the complainant be caught and taught a lesson for restraining them to cut the electric wire. On hearing the Lalkara the complainant shouted that he may be saved. Upon his noise his brother Muhammad Khalique deceased, his sister Nusrat alias Nanhi, his niece Mst. Irshad Bibi came out in the street. Mushtaq caught hold of Muhammad Khalique deceased in Japha whereas his brother Muhammad Riaz accused/appellant plunged Chhuri in the chest of Muhammad Khalique deceased thereby causing injury on his right rib. The deceased fell on the ground on receiving that injury. Sharifan Bibi, Shamim, Niamat Bibi and Taj Bibi started brick-batting from the top of their house causing injury on the head and nose of Nursat P.W. The bricks thrown by Shamim and Niamat Bibi fell on the head of the complainant thereby causing injury to him. Taj Bibi accused caused injury on the head of Irshad Bibi P.W. with a brick. The aforesaid accused continued brick pelting thereby causing injuries to the P.Ws. abovenamed on different parts of their bodies. The noise raised by P.Ws. attracted Chirag Din and Muhammad Rafique to the spot. They got the victim released from the assailants. The deceased was taken in a Tonga to the Civil Hospital, Kamoke in injured condition. He succumbed to the injuries in the hospital. 3. The formal F.I.R. Exh. P.E. was recorded by Muhammad Tehsin, Muharrar, Head Constable on the same date at about 8.45 a.m. 4. All the accused namely Ghulam Ah' aged 56 years, Muhammad Riaz aged 27 years, Munammad Mushtaq aged 17 years, Mst. Sharifan Bibi aged 55 years, Shamim aged 22 years, Niamat Bibi aged 23 years and Taj Bibi aged 13 years were challaned by the police to face the trial under section 302/148/149, P.P.C. read with Pakistan Criminal Law Amendment Ordinance, 1991. All of them were also charged under section 324/149, P.P.C. read with Pakistan Criminal Law Amendment Ordinance, 1991 for causing injuries to the P.Ws. 5. All the accused pleaded not guilty to the aforesaid charge and claimed trial. 6. Ch. Faiz Talib Khan, learned Additional Sessions Judge, Gujranwala vide his judgment, dated 19.3.1992 held Muhammad Riaz accused guilty under section 302(b), P.P.C. read with Pakistan Criminal Law mendment Ordinance, 1991 for commission of "Qatal-e-Amad" of Muhammad Khalique deceased. The accused/appellant was accordingly sentenced to death subject to confirmation by this Court The accused/ appellant was also sentenced to fine of Rs. 10,000 or in default to undergo R.I. for one year. He was further directed to pay Rs. 10,000 as compensation to the legal heirs of the deceased as required by section 544-A, Cr.P.C. or in default of payment of compensation to further R.I. for six months. The remaining accused namely Ghulam Ali, Mushtaq, Mst Sharifan Bibi, Shamim, Niamat Bibi and Taj Bibi were given benefit of doubt. 7. A reference under section 374, Cr.P.C. was made to this Court for confirmation of death sentence whereas Criminal Appeal No. 274 of 1992 was filed by the convict/appellant against his conviction and sentence. 8. We propose to dispose both the matter by this judgment. 9. The prosecution examined 16 witnesses during the trial, to prove its case against the accused. It consisted of eye-witnesses namely Muhammad Malik P.W. 11, Mst. Nusrat Bibi alias Nanhi P.W. 12 and Irshad Bibi P.W. 13. All of these witnesses were injured during the occurrence. The remaining two witnesses namely Chirag Din having died and Muhammad Rafique being unnecessary were given up. The complainant had also supported the motive alleged in the F.I.R. 10. The medical evidence consisted of Dr. Muhammad Mushtaq (P.W. 4) who had examined one of the injured P.W. namely Irshad Bibi (P.W. 13). He had found blunt weapon simple injury on her person. The post-mortem on the dead body of Muhammad Khalique was conducted by Captain Dr. Ghulam Rasul (P.W. 5). He had found the following injury on the person of deceased:- "A stab wound 6 c.m. x 1 c.m. going deep on the other and front side of chest at its lower part of right chest." According to him injury No. 1 was ante-mortem and caused by sharp-edged weapon. It was held to be grievous and dangerous to life. It was sufficient to cause death in the ordinary course of nature. The probable time between the injury and death was reported to be half hour to one hour. The time between death and post-mortem was given as 5 to 6 hours. 11. Dr. Ghulam Rasul P.W. 15 had examined Muhammad Malik, complainant and had found 4 injuries on his person having been caused with blunt weapon, and were of simple nature. 12. According to him two injuries were found on the person of Mst. Nusrat Bibi. Both were caused with blunt weapon. Injury No. 1 was grievous while injury No. 2 was held to be simple. 13. The recoveries in this case consisted of blood-stained clothes of the deceased vide memo. Exh. P.A. and blood-stained earth from the spot vide memo. Exh. P.B. The memo. Exh. P.B. was attested by Muhammad Nazir and Muhammad Bashir P.Ws. The recovery of weapon i.e. Chhuri vide Exh. P.D. was attested by Muhammad Boota. The Chhuri recovered from the accused/appellant was reported to be stained with human blood, according to the report of Chemical Examiner Exh. P.N. and that of the Serologist Exh. P.P. respectively. 14. The learned counsel for the appellant contended that motive lleged in the F.I.R. by the prosecution was disbelieved by the learned trial Court as the same was not proved. This allegedly made the prosecution case doubtful from its very inception. 15. The learned counsel for the appellant further contended that the F.I.R. had become dubious and doubtful as it was recorded at a place other than the police station. The possibility of its recording after the deliberations and consultation could not be ruled out. 15-A. That the prosecution side was not fair to involve almost all male and female family members of the accused side. The youngest accused was Muhammad Mushtaq aged 17 years. The police was also stated to be unfair with the investigation as it had delayed the action on the F.I.R. to cook up a stoiy to involve all the members of accused family. In this context it was urged that the S.H.O. reached the spot at 2.30 p.m. although the occurrence had taken place at 7.30 a.m. and the distance between the police station and the place of murder was about 3 furlongs. Although 3 eye­ witnesses were injured, but it could not allegedly be proved that they sustained injuries at the hands of the accused by throwing bricks upon them. This part of the prosecution story was disbelieved by the learned trial Court and the accused who were attributed those injuries were acquitted. Even the police did not make any injury statement in respect of injured P.Ws. nor the bricks used during the occurrence were taken into possession. It was therefore, urged that the prosecution case was highly doubtful and the conviction of the appellant/convict was not liable to be sustained particularly when his co-accused were acquitted by the learned trial Court giving them the benefit of doubt. 15-B. It was further contended by the learned counsel for the appellant that the eye-witnesses being related to the deceased were also interested and as such could not be relied upon to convict the appellant. 16. The learned counsel for the State rebutted the learned counsel for the appellant by arguing that there was no time for deliberation or consultation for cooking up a false story. The F.I.R. was lodged promptly on the same date at 8.45 a.m. though the occurrence had taken place at 7.30 a.m. There was allegedly no cause for involving the appellant/convict falsely in this case as there was no previous enmity between the parties. The mere fact that the eye-witnesses were related to the deceased would not make them interested witnesses particularly when they were not inimical to him. On the contrary, they will be considered as natural witnesses. Their presence at the spot could not be doubted as they resided close to the place of murder. It is for that reason that there was allegedly no suggestion at any stage by the accused party to challenge their presence at the spot. The mere fact that the co-accused of the appellant/convict were acquitted would not take away instrinsic value of witnesses who had actually seen the occurrence and were also supported by the recovery of blood-stained Chhuri at the instance of the appellant/convict. The medical evidence being in accoid with the ocular account of the occurrence linked the appellant/convict with the murder of the deceased, beyond any shadow of doubt. It was, therefore, submitted ttiat the appellant had no valid ground to challenge his conviction. 17. We have considered the arguments addressed from both sides. It is true that the eye-witnesses are related inter se and also to the deceased, but that will not make them interested or inimical towards the accused because they were also natural witnesses as they were residing in a house adjacent to the place of occurrence. Their presence at the spot will therefore, be natural, and their evidence will carry due and convincing weight. 18. It is also true that the co-accused of the appellant/convict were acquitted on the same evidence, but that did not mean that the ocular evidence had turned to be false and as such it could not be relied upon for sustaining the conviction of the appellant. If the benefit of doubt was extended to some of the accused persons in a case, it was only with a view to enforce the principle of safe administration of justice in criminal mutters and it was not correct to say that in such a case the Court by implication held the ocular evidence as false. In fact grain is to be sifted from the chaff in order to protect the innocent and to punish the guilty one. The old maxim offalsus in uno falsus in omnibus is not attracted to the facts of the present case because sufficient, straightforward and convincing ocular evidence corroborated by the medical evidence and other circumstantial evidence such as recovery of blood-stained Chhuri was available against the appellant/convict, as compared to the co-accused who were given the benefit of doubt. There is no scope nor there is any convincing probability that the F.I.R. was the result of due deliberations and consultation as alleged by the learned counsel for the appellant. 19. On the contrary the case was registered promptly within the range of 75 minutes. In such a short time, it is not possible to twist the actual facts or to invent a new story other than the real happening. Mere fact that the police had reached a little late after the registration of the case will not adversely affect the intrinsic value of the F.I.R. which had been registered earlier in time. The delay may be attributed to the proverbial slackness of the police to reach the spot after learning about the commission of the offence. It is by no means a satisfactory situation, but it has unluckily come into existence. However, it should not be allowed to affect merits of the case till some miscarriage of justice has been noticed. In the instant case the delay of the police in reaching the spot seems to be a leisurely routine without telling adversely on the merits of the prosecution case. 20. As pointed out above there is no enmity between the parties except solitary incident which resulted in the murder of deceased. There seems to be no reason as to why the complainant side should have falsely implicated the appellant/convict if he was not the actual offender. It is true that his family members were also involved alongwith him by the complainant side, but this is only an act of exaggeration. Unfortunately a tendency has developed in our society that all near and dears of the offender are usually named to bring the maximum harm to the family. It is only for that reason that the Courts have recognized the principle of sifting the grain out of the chaff as referred to above. 21. The case of the appellant/convict is distinguishable from the acquitted accused because the eye-witnesses though related to the deceased will not tolerate that the actual killer of the deceased should go scot-free and some substitute should be involved in his place. It will be natural on their part to see that the actual culprit should be brought to book though as pointed out above some innocent persons may also be added with him in a fit of passions and fury, but that would not absolve the actual offender who in this case is the appellant/convict. 22. In view of the above discussion, we have come to an irresistible conclusion that the prosecution had proved its case against the appellant/convict for the murder of the deceased and he was rightly onvicted by the learned trial Court The question of sentence however, ~. needs serious consideration. The motive alleged by the prosecution was not proved. The actual motive for the murder therefore, remained shrouded in mystery. There was no previous enmity between the parties. The appellant/convict did not act in a cruel or desperate manner as he caused solitary blow with a conventional weapon i.e. an ordinary Chhuri to cause fatal injury to the deceased. These factors constitute mitigating circumstances to avoid the extreme penalty of death. The alternative penalty for the murder under section 302, P.P.C. would therefore, be attracted in this case. The death sentence is accordingly not confirmed. The appeal is dismissed but the appellant is sentenced to imprisonment for life. The sentence of fine and the amount of compensation awarded by the learned Court are upheld. The benefit of section 382-B, Cr.P.C, shall be extended to the appellant/convict. The Murder Reference under section 374, Cr.P.C. stands disposed of accordingly. (M.A.A.) Sentence reduced.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1808 Present: tassaduq hussain jilani, J. JAHANGIR and others-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 413/B of 1995/BWP, decided on 13th September, 1995. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(2)-Penal Code (XLV of 1860), S. 302/337/364--Bail--Grant of-No direct evidence was available to show as to by whom and how the insecticide had been administered to the deceased-Accused being on visiting terms with the deceased with whom his leaving the house on the day of occurrence was not unusual and the witnesses of extra-judicial confession being the real brothers of the complainant, the evidence of "last seen" and of joint extra-judicial confession" could only be evaluated during the trial-­ Question of guilt of accused warranted further inquiry in circumstances and they were entitled to be released on bail till sufficient evidence incon­sistent with their innocence was collected and produced before the Court- -Accused were admitted to bail accordingly. [Pp. 1810 & 1811] A & B Mumtaz Hussain Bazmi and Malik Nazir Ahmad Bhutto, Advocates for Petitioners. Ch. Abdul Nabi, Advocate for the State. order The petitioners and another were proceeded against vide F.I.R. No. 345/94 under section 302/337/364, P.P.C. Police Station Kotwali, District Bahawalpur, for the alleged murder of Muhammad Naeem, a son of the complainant 2. The prosecution story given in the F.I.R. briefly stated is that on the fateful day at about 10.00 a.m., Muhammad Naeem deceased left the house with the petitioners and did not return till evening. At about 6.00 p.m. Mst. Saeeda Begum, widow of Maulvi Abdur Rehman, reached complainant's house to inform that his son (Muhammad Naeem) was lying at her house. The complainant accompanied by others went there to find that his son was lying unconscious and some bluish matter was coming out of his mouth. Muhammad Naeem (deceased) was immediately hospitalized "but he breathed his last in the causally department 3. It was further alleged in the F.I.R. that the petitioners Jahangir, Muhammad Babar and Luqman had killed Muhammad Naeem with the assistance of Abdur Rehman and Riaz. The motive alleged in the F.I.R. is that few days prior to the occurrence in question, Mst. Qamar Jahan, a daughter of Alamgir and sister of Jahangir and Baber (petitioners) had run away and her parents suspected that Muhammad Naeem (deceased) was involved in the said incident. 4. During investigation, the police collected the following set of evidence against the petitioners:- (i) Evidence of last seen; (ii) evidence of extra-judicial confession furnished by Muhammad Aslam and Muhammad Azam (a real brother of the complainant) who stated that the petitioners had made extra-judicial confession before them that they had murdered Muhammad Naeem; (iii) the report of the Chemical Examiner qua the stomach contents of Muhammad Naee which was to the effect that it contained organo phosphorous insecticide. 5. The learned counsel for the petitioners seeks bail on the grounds that there was no direct evidence connecting the petitioners with the alleged offence; that the so-called extra-judicial confession made before Muhammad Aslam and Muhammad Azam was joint and it even otherwise repellent to common sense as petitioners could not have gone and made extra-judicial confession before real brothers of the complainant. It was further argued that the petitioners were behind the bar for the last more than ten months and the trial is not yet in sight. In support of his submissions, learned counsel relied on Muhammad Ishaq and 3 others v. The State 1983 P.Cr.LJ 2426 and Shaukat v. The State 1982 P.Cr.LJ 696. 6. The learned State counsel assisted by the learned counsel for the complainant has vehemently opposed the prayer of bail by submitting that the evidence of last seen, extra-judicial confession and the report of the chemical examiner do prima facie connect the petitioners with the alleged offence and they would not be released on bail at this stage. 7. I have heard the learned counsel for the parties and have also perused the record with the assistance of the learned counsel for the State. 8. Admittedly there is no direct evidence as to who and how the insecticide was administered to Muhammad Naeem deceased. The evidence of "last seen" and of "extra-judicial confession" remains to be evaluated during the trial as the petitioners were admittedly on visiting terms with Muhammad Naeem deceased (who was a chronic drug addict as per the Investigating Officer) and his leaving the house with the petitioners on the fateful day was not unusual. The witnesses of 'extra-judicial confession' are real brothers of the complainant and prima facie the prosecution shall have to attend to the question as to why the petitioners should go to a very close relation of the complainant to make the alleged confession and the value of joint 'extra-judicial confession' shall also be weighed during the trial. In Shaukat v. The State 1982 P.Cr.LJ 696, this Court allowed bail to an accused who allegedly administered insecticide to the deceased in Lassi as there was no direct evidence qua the mixing of insecticide in the Lassi and the prosecution case basically hinged on the evidence of last seen, motive and the extra-judicial confession. Similarly in Muhammad Ishaq and 3 others v. The State 1983 P.Cr.LJ 2426, the evidence of last seen and joint extra-judicial confession was, prima facie, found to be of no value and the accused was released on bail on double murder charge. ; 9. For afore-mentioned reasons, this Court is of the view that the question of petitioners' guilt would warrant further inquiry and until sufficient evidence is collected and produced before a Court of law which is inconsistent with the innocence of the accused petitioners they are entitled to be released on bail. Therefore, petitioners Jahangir, Muhammad Babar and Luqman are admitted to bail provided they furnish bail bonds in the sum of Rs. 50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court. (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1811 Present: ahmad saeed awan, J. Mst. SAKHIA KAUSAR-Appellant versus STATE-Respondent Criminal Appeal No. 224 of 1992, decided on 18th October, 1995. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 193~False statement made before Magistrate-Lady accused had been convicted by the Trial Court on her admission of having made a false statement before the Magistrate implicating co-accused for abduction, Zina-bil-Jabr and coercive Nikah—Said statement was urged to have been made by the accused due to fear of her parents and of police-Ladies under harassment of police as well as their parents are compelled to give such statement so as to build the prosecution case—Justice is to be done and provisions of the penal section are to be invoked in keeping with the norms of the society-Accused was acquitted in circumstances. [P. 1812] A & B Mirza Munwar Hussain, Advocate for Appellant. Muhammad Asif Khalil, Advocate for the State. judgement Learned counsel for the petitioner states that the petitioner made the statement due to fear of the parents as well as of the police. 2. I have gone through the judgment and relevant record. Mst. Sakina appellant got her statement recorded under section 164, Cr.P.C. before the Magistrate wherein she alleged abduction, Zina-bil-Jabr and Nikah under coercion with Shafqat. Thereafter, challan of the case was submitted in the Court and she appeared before the learned Additional Sessions Judge, Lahore in which she resiled from her previous statement. She admitted that false statement before the Magistrate has been made by her. The learned Additional Sessions Judge issued notice under section 476, Cr.P.C. and ultimately she was convicted under section 193, P.P.C. and sentenced to one year with a fine of Rs. 2,000. 3. It is a tendency in our society that in such cases the ladies of this age are always under coercion and harassment of police as well as their parents, and are compelled to give statement in such manner, so as to build the prosecution case. Needless to observe that justice is to be done and provisions of the penal section are to be invohoJ in keeping with the norms of the society. In these circumstances, I am inclined to dislodge the sentence awarded by the learned Additional Sessions Judge. Accordingly, I accept this appeal, set aside the conviction and sentence and acquit her. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1812 Present: AHMAD SAEED AWAN, J. Mst. SOSAN-Petitioner versus STATE-Respondent Criminal Revision No. 393 of 1995, decided on 23rd October, 1995. Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979)-- —S. 10/11-Criminal Procedure Code (V of 1898), Ss. 540-A/439-Dispens-ing with appearance of accused-Trial Court had exempted lady accused from appearance before it on undertaking of her counsel to ensure her presence, if so required by Court-Such order of Trial Court did not suffer from any illegality justifying interference in exercise of revisional jurisdiction-Reivsion petition dismissed in limine. [P. 1813] A Muhammad Ramzan Khokhar, Advocate for Petitioner. order It is admitted by learned counsel that though the order impugned is not without jurisdiction and is discretionary yet the discretion has not been exercised properly. A perusal of the order, dated 23.8.1995 whereby the petitioner was given exemption from appearance before the Court shows that it was passed on the undertaking of her counsel namely Rana Muhammad Ashraf to ensure her presence, if so required by the Court No illegality has, thus, been committed by the trial Court by passing the impugned order so as to justify interference in exercise of revisional jurisdiction. Dismissed in limine. (M.A.A.) Revision dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1813 Present: MUHAMMAD AQIL MlRZA, J. MUHAMMAD SHAFI-Petitioner versus MUHAMMAD YOUNAS and others-Respondents Criminal Miscellaneous No. 1000/B of 1995, heard on 23rd October, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)--Penal Code (XLV of I860), S. 302/324/34--Cancellation of bail- Accused was alleged to have only supplied bullets to co-accused—No injury of any kind had been attributed to accused and his case was covered by S. 497(2), Cr.P.C.-Bail granted to accused by Sessions Court was not cancelled in circumstances. [P. 1817] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)-Penal Code (XLV of 1860), S. 302/324/34-CanceUation of bail-­ Three injured prosecution witnesses had implicated the accused in indiscriminate firing resulting in death of one person and injuries to three prosecution witnesses and in the presence of such definite allegations the opinion of the Investigating Officer about the accused having resorted to firing in self-defence could not be preferred at such preliminary stage-Bail granted to accused by Sessions Court was recalled in circumstances. [P. 1817] B Syed Muhammad Zafar Babar, Advocate for Petitioner. Ch. Muhammad Abdul Saleem and Masood Sadiq Mirza, Advocates for the State. Date of hearing: 23.10.1995. judgment This is an application under section 497(5), Cr.P.C. for the cancellation of bail granted to Muhammad Younas and Muhammad Afzal respondents by the learned Additional Sessions Judge in a case registered at Police Station Dijkot, District Faisalabad vide F.I.R. No. 218, dated 25.9.1994, for offences under section 302/324/34, P.P.C. This is an unfortunate case in which four persons have died, three young men from the complainant side and a lady from the side of the accused. The facts as stated in the F.I.R. have been enumerated in para. 2 of the order of learned Additional Sessions Judge, which is reproduced below: - "Muhammad Shafi son of Muhammad Bakhsh lodged F.I.R. No. 218 at Police Station Dijkot on 25.8.1994 at 8.10 a.m. alleging therein that on 24.8.1994, a quarrel took place between the children of both the parties. Muhammad Afzal and Muhammad Amjid sons of Muhammad Younis (petitioner) gave beating to Arif son of Rashid. Arif informed his parents. Brothers of Arif namely Tariq and Gharri alongwith Nisar son of complainant gave beating to Safdar Ali brother of Muhammad Afzal son of Younis. On 25.8.1994, Arif son of Rashid abovesaid was going to ease himself. When he reached in front of the house of Abdul Khaliq son of Muhammad Ismail (brother of Muhammad Younis petitioner), Safdar Ali, Muhammad Afzal sons of Muhammad Younis and Muhammad Younis son of Muhammad Ismail came there and started giving beating to Muhammad Arif. Tariq and Gharri brothers of Muhammad Arif armed with Sotas reached there to help Muhammad Arif and started giving beating to Muhammad Younis with Sotas. Meanwhile, Muhammad Arshad son of Muhammad Younis armed with .12 bore double-barrel gun came out. Muhammad Yousaf son of Muhammad Shafi (complainant) came out from his house in order to intervene. Muhammad Arshad son of Muhammad Younis fired which hit Yousaf who returned to his house. Muhammad Arshad again fired which hit Yousaf at his back. Ijaz Ahmad son of Yousaf came out from his house. Muhammad Arshad fired twice which hit Ijaz. Nisar Ahmad son of Muhammad Shafi, Mst. Zahida Bibi daughter of Rashid Ahmad and Fazal Din, Lambardar witnessed the occurrence. Muhammad Younis brought .12 bore gun from his house during the fight. Muhammad Arshad and Muhammad Younis started indiscriminate firing causing injuries to Nisar Ahmad, Mst. Zahida and Fazal Din. Yousaf and Ijaz Ahmad expired at the place of occurrence while Nisar Ahmad expired at hospital after two days of the occurrence. Mst. Balqees, mother of Muhammad Arshad accused came out and made an effort to stop Muhammad Arshad from firing but a fire shot by Muhammad Arshad hit her on her right armpit. She also died. It is further alleged that during the occurrence all the accused kept on raising Lalkaras. It is further alleged that all the accused kept on providing bullets to Muhammad Arshad and Muhammad Younis, Tariq, Mst. Zahida Bibi and Fazal Din received injuries in the occurrence." 2. The counter-version from the accused side finds mention in the statement of Muhammad Mansha, recorded by the police on 27.8.1994. This counter-version is stated in para. No. 3 of the order of the learned Additional Sessions Judge and the same is reproduced below:- "On the other hand, Muhammad Mansha got recorded his statement before police on 27.8.1994 alleging that on 26.8.1994 at 6 a.m., Muhammad Yousaf (deceaded) armed with hatchet, Muhammad Nisar (deceased) armed with .12 bore gun, Muhammad Younis armed with .12 bore gun sons of Muhammad Shafi, Muhammad Ashraf son of All Muhammad armed with .12 bore gun, Ijaz Ahmad (deceased) son of Muhammad Yousaf armed with hockey, Tariq son of Abdul Rashid armed with hatchet launched attack at the house of Abdul Khaliq and started giving injuries to Muhammad Younis (accused/petitioner in F.I.R). Muhammad Ashraf raised Lalkara that no one should be spared. Muhammad Nisar, Muhammad Younis sons of Muhammad Shafi and Muhammad Ashraf started firing. Mst. Balqees wife of Muhammad Younis petitioner received fire-arm injury and expired at the place of occurrence. Muhammad Arshad son of Muhammad Younis brought .12 bore gun from his house and started firing in self-defence % which hit Muhammad Yousaf etc. who ran away. Motive as narrated by Muhammad Mansha was a quarrel between the children of both the parties occasioned on 24.8.1994." 3. Learned Additional Sessions Judge vide order, dated 4.1.1994 has granted bail to Younis and Afzal accused on the ground that they had not been attributed any specific injury to any of the deceased persons. 4. Learned counsel for the petitioner has argued that there is a definite role attributed to Afzal accused, to the effect that he supplied bullets to Arshad and Younis. So far as Younis accused is concerned, he is alleged to have brought a gun with which he resorted to indiscriminate firing alongwith Arshad co-accused. On account of this firing done by Younas and Arshad four persons namely Nisar Ahmad deceased and the three injured P.Ws. received injuries. He has further submitted that the F.I.R. was lodged within 2 hours of the occurrence while the counter-version was recorded 2 days thereafter. Muhammad Mansha who made the counter-version belongs to Chak No. 81/JB which is eight miles away from the village of occurrence, namely, Chak No. 281/RB. 5. He has further submitted that in the counter-version it is alleged that Muhammad Yousaf armed with hatchet, Muhammad Nisar Muhammad Yousaf and Muhammad Ashraf all armed with .12 bore guns, Abdul Rashid armed with hatchet and Ijaz Ahmad armed with hockey launched attack at the house of Abdul Khaliq and started giving injuries to Muhammad Younis, but Muhammad Younis accused did not suffer any injury except one simple blunt weapon injury. There is no injury caused with the fire-arm or with the hatchet. 6. On the other hand, Ch. Abdul Saleem, learned counsel for the respondents submitted that it is a case of counter-version and one person namely Mst. Balqees from the accused side suffered 14 fire-arm injuries and it is a case of further inquiry as to which of the two parties is the aggressor. So far as respondents are concerned, it is stated that Muhammad Afzal has no role and Muhammad Younis who is the husband of Mst. Balqees Bibi deceased acted in self-defence and, therefore, the bail has been rightly granted to them by the learned Additional Sessions Judge. 7. Learned State counsel submits that in the investigation conducted by the Inspector/S.H.O. and supervised by the A.S.P., Safdar accused was found innocent while Muhammad Afzal, Muhammad Younis and Arshad have been found fully involved in the commission of the offence alleged against them. 8. The learned counsel for the parties and the State have been heard at great length. The Investigating Officer vide Zimni No. 13, dated 8.10.1994 came to the conclusion that three persons from the complainant side died on account of the firing made by Muhammad Arshad accused. Muhammad Younis did not cause injury to any of the accused. He was attacked and injured by the complainant party in the first instance. It was thereafter that he came armed with gun and resorted to firing. With regard to Muhammad Afzal respondent he has opined that he played no active role in the commission of the crime. 9. Tariq, Zahida Bibi and Fazal Din are the injured witnesses in this case. All of them have implicated Muhammad Younis in their statements recorded under section 161, Cr.P.C. by alleging that after the death of Muhammad Yousaf and Ijaz he came armed with gun and alongwith Arshad resorted to indiscriminate firing as a result whereof Nisar Ahmad who later died in the hospital and the three P,Ws. were injured. Muhammad Younis is father of Arshad, Safdar and Afzal accused. Safdar has been found to be innocent in the final investigation because he was not found to be present at the place of occurrence. So far as Muhammad Afzal is concerned, it is not denied by the petitioner's learned counsel that no role is attributed to him except that the supplied the bullets to Arshad and Younis. No injury of any kind has been attributed to this accused. Consequently, so far as Afzal is concerned, his case is covered by sub-section (2) of section 497, Cr.P.C. and the bail has been rightly granted to him by the learned Additional Sessions Judge. This application as against him is dismissed. 10. So far as the case of Muhammad Younis respondent is concerned, there are definite allegations of firing made by him. Three injured P.Ws. have implicated him with indiscriminate firing alongwith Muhammad Afzal co-accused, as a result whereof Muhammad Nisar lost his ife and three P.Ws. uffered injuries. In these circumstances he was not entitled to bail. The plea that the firing as made by him in self-defence cannot be entertained at this stage, for the purpose of grant of bail. This plea will have to be proved at the trial. There being definite allegations made by the injured P.Ws. in their statements recorded under section 161, Cr.P.C., the opinion of the Investigating Officer that he resorted to firing in selfdefence cannot be preferred at this preliminary stage. Therefore, the bail granted to Muhammad Younis is liable to be cancelled. Accordingly, the application for cancellation of bail as against Muhammad Younis is accepted. (M.A.A.) Order accordingly

(Abdul Mqjid Khanzada, J (Abdul Mqjid Khanzada, J.) PLJ 1996 Cr.C. (Karachi) 1818 (DB) Present: ABDUL MAJID KHANZADA AND SHAH NAWAZ A. AWAN, JJ. IMDAD HUSSAIN-Petitioner versus P.O. SINDH and others-Respondents Constitutional Petition No. D-121 of 1995, decided on 27th September, 1995. Constitution of Pakistan, 1973-- —-Art. 199--Criminal Procedure Code, 1898, S. 154-Registration of second F.I.R.~Once a case had been registered in respect of an offence, then ordinarily registration of a second F.I.R. notwithstanding divergent version contained therein was not called for, inasmuch as the ball had already been set rolling and police was under a statutory duty to trace out the real culprits after proper investigation in accordance with law-Cons­titutional petition was dismissed in limine accordingly. [P. 1819] A & B Ghulam Qadir Jo+"i, Advocate for Petitioner. Muhammad Bachal Tunio, A.A.G. for the State. order Abdul Majid Khanzada, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan of 1973 has been filed by one Imdad Hussain, praying therein that the respondent No. 3 or 4 i.e. S.H.O. Ratodero Police Station of Inspector C.I.A., Larkana respectively be directed to register his second F.I.R. and investigate it in accordance with law. Mr. Ghulam Qadir Jatoi, Advocate for the petitioner, contended that one Ali Gul and Mujahid were murdered and the petitioner lodged F.I.R. No. 88/95 at Police Station Ratodero on 24.6.1995 when he came to know of the murder of his uncle Ali Gul. His grievance is that since the S.H.O. Ratodero was one of the culprits, he did not record the correct and complete version of the complainant in the above F.I.R., in order to give protection to real culprits. So he wants that above direction be given to the abovesaid authorities to register second F.I.R. of the petitioner in respect of the same incident. Mr. Jatoi argued that there is no embargo on registration of the second F.I.R. of the same offence. He relied upon the cases reported in 1995 P.Cr.LJ 1239 and 1989 P.Cr.LJ 1945. Mr. Muhammad Bachal Tunio, A.A.G. opposed the request of the petitioner and argued that since the F.I.R. of the crime is already registered and in case he is not satisfied with contents of the F.I.R. or the investigation, he may file a direct complaint, which is an adequate remedy available to him. We have applied our mind to the circumstances of the case and the law cited before us, and we are of the considered view that once a case is registered in respect of an offence, then ordinarily registration of a second F.I.R. notwithstanding divergent version contained therein, is not called for, inasmuch as the hall has already been set rolling and police is under a statutory duty to trace the real culprits after proper investigation in accordance with law. Reference is made to a case, Dilbar Hussain and others v. Riasat Javed Bajwa, S.H.O., Ferozewala and others reported in 1994 MLD 1736. In view of the above circumstances, we do not find any force in the „ instant petition as such it is dismissed in limine. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 1819 [DB] Present: ali muhammad baloch and abdul latif U. qureshi, JJ. GHULAM HUSSAIN UNNAR-Applicant versus STATE-Respondent Criminal Bail Application No. 624 of 1995, decided on 8th November, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 124-A--Object of S. 124-A, P.P.C.-Object of S. 124-A, P.P.C. is to prohibit the feelings which may be excited against the Government in a variety of ways-One of such ways is possibly to excite feelings by unfair condemnation of any of its services. [P. 1822] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Penal Code (XLV of 1860), S. 124-A--Bail-Letter addressed by the accused, maligning the judiciary of the country and other organs of the State, to the foreign Heads of the States, Prime Ministers and Ambassadors was likely to create hatred and disaffection towards the Government-Provincial Home Secretary, therefore, had rightly filed the complaint on behalf of the Government as its agent and Special Court had also taken its cognizance correctly-Since the writing was admittedly sent by the accused to the addressees and also published in press, he had failed to show that there were no reasonable grounds to believe that he was guilty of a non-bailable offence punishable with imprisonment for life-Bail was declined to accused accordingly. [P. 1823] B Mr. Azizullah K. Shaikh, Advocate for Applicant. K.M. Nudccm, A.A.-G. for the State. order All Muhammad Baloch, J.--Applicant Ghulam Hussain Unnar stands charged with an offence under section 124-A, P.P.C. as a result of a complaint filed by Mr. Shahid Hamid, Home Secretary, Government of Sindh, in the Court of Special Judge (S.T.A.) Court No. Ill, Karachi. The contents of the complaint are to the effect that Haji Ghulam Hussain Unnar by levelling false allegations in writing has attempted to create hatred and has also attempted to excite disaffection against the lawful Governments of the Federation and the Provinces and that therefore, he has committed an offence of sedition, Sucii complaint was lodged by the Secretary, Home Department after the accused Haji Ghulam Hussain Unnar had sent a writing to all the Presidents, all the Prime Ministers, all the Ambassadors, and all the Consulate-Generals of all the countries of the world. On receiving the complaint, the Judge, Special Court (S.T.A.) took the cognizance of the same and passed an order in the following terms :— "Perused complaint, theprima facie case is made out against the accused under section 124-A, P.P.C. Let the case be brought on regular file. Issue N.B.Ws. against the accused." It appears that the accused, who is in custody, thereafter moved an application for bail before the trial Judge, which was dismissed on 15-6-1995 and thereafter he has approached this Court. Learned counsel for the applicant has argued in detail and has stated that the writing issued by the applicant is owned by him but according to him provisions of section 124-A, P.P.C. are not attracted and at the most it is only a case for contempt of Court and not for any criminal offence. Learned counsel argued that although the maximum punishment provided for this offence is imprisonment for life but the punishment of fine and imprisonment for 3 years is also provided for this offence, therefore, it does not come within the prohibitory limits and, therefore, the applicant is entitled to be released on bail. Mr. Azizullah Shaikh also argued that the complaint was not properly filed as complainant had not appeared in person before the Court and merely on perusal of the complaint the Judge had passed the order bringing the case on file, hence there was no complaint against the applicant in the eyes of law. Mr. KM. Nadeem, A.A.-G, appearing for the State, opposed the grant of bail to the applicant in vehement terms and has argued that the applicant has not only attempted to create hatred and disaffection among the residents of the country against the lawful Government, but has also maligned the President of Pakistan, the Judges of the High Courts and Supreme Court and has tried to create hatred among the friendly countries as well as other nations of the world against the lawful Government of Pakistan and has lowered the people of Pakistan in the eyes of the citizens of other countries as the contents of the writing of applicant besides having been sent to the heads of States and Prime Minister, Ambassadors of all the countries of the world, were also got published in all the major Newspapers of the country, and were made known to all the citizens of Pakistan with the intention to bring hatred and disaffection against the lawful Government. Learned A.A.-G. traced the events obtaining in the country with reference to the writing of the applicant, which was also addressed to the Ambassador and the President of America and he stated that the Government of U.S.A. was at the brink of declaring Pakistan as a "Terrorist State", and all efforts were being made by the lawful Government of Pakistan to avoid this ignonimity and resultant economic loss, when this writing was sent by the applicant. According to the learned A.A.-G. dispensation of justice was severely ridiculed and that was to create severe hatred which could result in disaffection among the people against the legal Governments of Center and Provinces. Learned A.A.-G. relied upon many decisions, in which such crude attempts were held to be amounting to the creation of hatred and disaffection and, therefore, section 124-A was attracted. Some of such cases are :-- (1) Bal Gandadhar Tilak v. Emperor SC 39 1 & D Gas 807 :19 Bom. LR 211 p. 567 of Cr. LJ Vol. 18. (2) State v. Sardar Attaullah Khan Mengal PLD 1967 SC 78. Another argument of the learned A.A.-G. was that Special Court (S.T.A.) was created under a special statute and section 10 of S.T.A. Act had an overriding effect on Cr.P.C., therefore, the complaint was rightly instituted and no particular form or method of filing of complaint was provided under S.T.A. Act. Therefore, filing of complaint by the Home Secretary in the manner he did in this case, and the passing of the order by S.T.A. Court ordering the case to be brought on file and issuing of N.B.Ws., did not suffer from any infirmity. Lastly, learned A.A.-G. stated that the offence was very grave as the entire judicial system, the Federal Government and the Provinces were assaulted and attempt was made to show that the executive was overruling the judiciary and the words used against the judiciary were used purposely to create hatred and disaffection against the superior Courts of the Country and also against the Government at the Centre and the Provinces. Learned A.A.-G. stated that since a prima facie case has been made out against the applicant for which the maximum punishment provided by law was imprisonment for life, there was no grounds to release the applicant on bail. We have considered the arguments of the learned counsel. We do not want to got in deep discussion about the truth or falsity of the allegations levelled by the applicant is his writing, as this is only stage of bail, and we do not want to prejudice the trial Court from taking an independent decision of its own in the trial. Apparently offence under section 124-A is punishable for imprisonment for life, and therefore, the applicant, in order to succeed in his application for bail, has to show that there are no reasonable grounds to believe that the applicant is guilty of such offence. The applicant has not been able to show lack of such grounds. We do not agree with the learned counsel for the applicant, that the applicant was only making a prayer as a citizen, against his victimisation. If it was so, there was no necessity to address this writing to the Presidents and the Prime Ministers of all the countries of the world. There can hardly be any cogent reason for the applicant who himself claims to be an Ex-M.N.A. and Chairman of District Council, to address the letter maligning the judiciary of the country and other organs of the State to the foreign heads of the States, Prime Minister nd Ambassadors, apart from getting in the contents of letter published inside the country. In the case of Bal Gangadhar Tilak, Justice Bachele has held that a Government established by law acts through human agency and admittedly civil service is its principal agency for the administration of the country. Therefore, when the civil service en bloc is maligned, the question whether disaffection against the Government is being excited or not, is a pure question of fact. The natural effect of the words, infusing hatred of the civil service, is also to infuse hatred or contempt of the established Government, whose accredited agent the civil servant is. The object of section 124-A is, to prohibit the feelings which may be excited against the Government in a variety of ways. One of such ways is possibly to excite feelings by unfair condemnation of any of its services. In the case of the State v. Sardar Attaullah Khan, it was observed by Cornelius, CJ., that the only question for the Court to decide in the case like one under section 124-A is to decide whether the effect of the language used is such that it is calculated to create in the minds of those, who see or hear it, a feeling of revolution towards the Government established by law, so strong as to amount to hatred or contempt, or in a still worse case where the hatred or contempt is so strong as to affect the allegiance of the public or a section thereof, in other words, producing "disaffection". Therefore, we feel that the complainant has rightly considered the letter written by the applicant to be such which is likely to create hatred and disaffection and, therefore, has filed the complaint on behalf of the Government as its agent, and so its cognizance has also been taken by the Special Judge (S.T.A.) correctly. Since the writing is admittedly sent by the applicant to the addressees, and also publicised in Press, we hold that the applicant has failed in showing that there were no reasonable grounds to believe that he was guilty of a non-bailable offence punishable with imprisonment for life. Therefore, we do not find cogent reasons to allow this application. The request for bail of the applicant is, therefore, rejected. (M.A.A.) Application dismissed

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1823 (DB) Present: FALAK seer and tassaduq hussain jilani, JJ. ASGHAR BEG-Appellant versus STATE-Respondent Criminal Appeal No. 630 and Murder Reference No. 234 of 1993, heard on 24th October, 1995. (i) Criminal Trial- —Related or interested witness-Corroboration of~No universal rule exists that the evidence of a related or interested witness must be corroborated by some independent evidence-Court can rely on the testimony of an interested witness if it inspires confidence in the event of non-availability of an independent witness.-- [P. 1827] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)- —-S. 302-Evidence-Quality and nature of corroboration-Corroboration may not necessarily be the word of an independent witness supporting the story put forward by an interested witness and it may be afforded by anything in the circumstances of a case which tends sufficiency to satisfy the Courts' mind that the witness has spoken the truth. [P. 1828] B (iii) Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302-Appreciation of evidence-Occurrence took place in daylight-Eye­ witnesses had reasonably explained their presence at the spot and they were natural witnesses of the occurrence-Accused had a motive to kill the deceased-Medical evidence had corroborated the ocular account with regard to the time between the occurrence and death of the deceased-­ Such circumstances had a corroborative value to lend credence to the ocular account furnished by the related eye-witnesses-Discrepenacy between the medical evidence and ocular testimony qua the range of firing could not be fatal for the prosecution case as the same could not be measured with exactitude-Conviction of accused was upheld in circumstances. [P. 1829] C & D (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Sentence-Mitigating circumstances-Motive alleged was old and no immediate motive had been brought on record-Accused was attributed a single shot and he did not repeat the firing-Sentence of death awarded to accused was altered to imprisonment for life in circumstances with a sum of Rs. 50,000 payable as compensation by him to the heirs of the deceased under S. 544-A, Cr.P.C. because the offence had been reduced from one of Qisas to Tazir. [P. 1829] E Munir Ahmad Bhatti, Advocate for Appellant. Muhammad Tahir Chaudhry, Advocate for the State. Muhammad Siddique Chughtai, Advocate for the Complainant. Date of hearing: 24th October, 1995. judgment Tassaduq Hussain Jilani, J.--This judgment shall dispose of Criminal Appeal No. 630 of 1993 filed by Asghar Beg appellant, Criminal Revision No. 172 of 1994 filed by Haider Beg complainant against the acquittal of the co-accused and Murder Reference No. 234 of 1993 as they arise out of the same judgment, dated 11-8-1993 passed by Mr. S.M. Waqarul Hassan Shah Bokhari, Additional Sessions Judge, Gujrat (in case F.I.R. No. 275, dated 16-5-1991 under section 302/148/149, P.P.C., Police Station Civil Lanes, Gujrat) whereby while acquitting Ashraf Beg, Safdar Beg, Akbar Beg, and Yunas Beg, he convicted Asghar Beg appellant under section 302, P.P.C. for the murder of Adalat Beg alias Dulla and sentenced him to death. 2. The prosecution story as given in the F.I.R. (Exh. P.E./l) registered by Allah Rakha S.I. (P.W.10) at 8-15 a.m. on the statement (Exh. P.C.) of P.W.6 Haider Beg, a maternal-uncle of the deceased, which in turn was recorded by Khadim Hussain S.I. (P.W.9) at a place falling on the way to Police Post Shaheen Chowk, is that the complainant accompanied by his wife Mst. Nazar Begum, Adalat Beg alias Dulla, Aziz Beg and Liaqat Beg came out of his house for harvesting the crop at Mangowal, Adalat Beg (deceased) went ahead of them on a bicycle to fetch a "tonga". As they reached near the old graveyard (near place called Staff Galla) suddenly Mirza Ashraf Beg armed with Sofa, Safdar Beg armed with carbine, Asghar Beg armed with .12 bore gun, Akbar Beg armed with Danda and Mirza Yunas Beg alias Dulla armed with Danda came out from the graveyard. Asghar Beg appellant raised Lalkara that he would take revenge of his brother and fired a shot which hit Adalat Beg on the upper rear side of his right flank and he fell down from the bicycle. The complainant alongwith the companions attempted to chase the assailants but Ashraf Beg threatened that any person coming near them would be murdered. Safdar Beg and Asghar beg started firing in the air and decamped from the spot. The motive alleged in the F.I.R. was that two years prior to the occurrence, one Afzal Beg was murdered and a case was registered against the complainant, Adalat Beg (deceased) and four others but all were acquitted. The accused, it was alleged, had murdered Adalat Beg to revenge that previous murder. After recording the statement of Haider Beg (P.W.6), Khadim Hussain, S.I. (P.W.9) sent the same to police station for registration of the case. Thereafter he proceeded to the spot, prepared inquest report (Exh. P.G.), took into possession bicycle of the deceased (Exh. P. 5) and a Soft" (Exh. P. 6) vide memo. Exh. P.E. Mirza Aziz Beg (P.W.7) and Khadim Hussain S.I. (P.W.9) are the attesting witnesses who appeared in Court whereas the third witness Liaqat Beg was given up. Dr. Munawar Ahmad Chaudhry (P.W.8) conducted the post-mortem examination at 1-00 p.m. and he found the following injuries on the person of the deceased :-- "There was a fire-arm wound of entry about 3x2 c.m. back of chest about 12 c.m. above right iliac bone. Wound was gutter shaped. Stomach was empty. Urinary bladder was empty." This single injury, according to him, was sufficient to cause the death in the ordinary course of nature and the time between death and post­ mortem examination, according to the doctor, was five to six hours. 3. During trial, the prosecution examined ten witnesses including the doctor and the Investigating Officer. Haider Beg complainant appeared as P.W.6. He made statement consistent with the F.I.R. (Exh. P.E./l). Aziz Beg appeared as P.W. 7. He corroborated the statement of P.W. 6 on all material particulars. P.W.6 is a maternal-uncle of the deceased whereas P.W.7 is a nephew of P.W.6 and a cousin of the deceased. The remaining witnesses who allegedly saw the occurrence i.e. Mst. Nazar Begum, Liaqat Beg and Khaliq Beg were, however, given up by the prosecution as unnecessary. 4. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity. He produced Dr. Syed Tallat Iqbal (D.W.2) qua his state of health who opined that he had some heart problem and he advised that he should be referred to Cardiology Department of the Mayo Hospital, Lahore. Dr. Haider Asadullah Malik, Medical Specialist appeared to state that he examined Asghar Beg (appellant) and found that he was complaining uf chest pain. He also advised the appellant for examination by a Cardiologist. D.W.I is Ghulam Murtaza, a Record Keeper, A.B.S. Hospital, Gujrat. He produced record pertaining to medical examination of the appellant. In support of this appeal, learned counsel for the appellant has raised following pleas :-- (i) That the F.I.R. was recorded after preliminary investigation as P.W. 7 admitted that it was lodged after consultation and the delay of one hour in lodging it when the police station was at a short distance confirms his assertion; (ii) That the motive is old and too weak to have prompted the appellant to murder the deceased; (iii) That both the eye-witnesses are chance witnesses and their presence at the spot is not free from doubt; (iv) That both the eye-witnesses are related and their testimony without some independent corroboration is not safe for conviction on a capital charge; (v) That the medical evidence belies the ocular account. According to the doctor, the shot must have been fired from a distance beyond five feet whereas according to P.W. 6 the fire was made from a distance of one feet and according to P.W.7 from a distance of five feet.; (vi) That no recovery was affected from the appellant; and (vii) That in any case as there is no immediate cause for the alleged attack, it is not a case of death sentence. 6. Learned State counsel assisted by the learned counsel for the complainant, while defending the conviction of the appellant, have submitted that it was a broad daylight occurrence and, therefore, there was no question of mistaken identity; that the F.I.R. was lodged promptly; that specific roles were assigned; that the move stands admitted by the defence and that there was no mitigating circumstance to warrant lesser sentence. 7. We have heard learned counsel for the parties and have also gone through the record. 8. The statement of Haider Beg (P.W.6) which formed basis of the F.I.R. (Exh. P.E./l) was recorded by P.W. 9 Khadim Hussain at 8-15 a.m. The occurrence took place at 7-00 a.m. After the murder of close relation, the complainant was not expected to immediately rush to the police station. He must have taken some time to recover from the initial shock and the delay of one hour in lodging the F.I.R. is not such a delay to warrant an inference that the complainant made consultation with others to cook up a totally false story. Moreso when the occurrence was broad daylight occurrence and the identity of the assailants could not have been mistaken. The ocular account qua the timing of the occurrence and the role attributed to the appellant is consistent and despite a lengthy cross-examination the testimony of the eye­ witnesses could not be shaken. However, that part of the prosecution story which was not supported by any corroborative circumstances had to be disbelieved, the grain had to be sifted from the chaff and the learned trial Court rightly gave benefit of doubt to the four co-accused who stand acquitted as they had not been assigned any specific role. In criminal law it cannot be laid down as an inflexible principle that the evidence of a related and interested witness must be corroborated by some independent evidence. If statement of a witness inspires confidence and no independent witness was available in the facts and circumstances of a particular case then the Court may rely on the testimony of an interested witness provided it is otherwise not free from doubt. In Roshan and 4 others v. The State PLD 1976 SC 557 it wasobserved as under :-- "There is also no universal rule that the evidence of an interested witness must be invariably corroborated by independent evidence. If that were so then why should the Court at all take into account the testimony of the interested witness. Secondly, if the presence of a witness if proved beyond doubt and no other independent witness is available in the case, it would result in a grave miscarriage of justice to insist upon independent corroboration. If that was the rule then the accused have only to destroy the evidence which may be used as corroboration and get scot-free regardless of the quantum and quality of the oral evidence provided the interested witness. It, therefore, depends on the facts of each case and instances are not wanting where the Supreme Court has upheld the conviction of the accused based entirely on the testimony of the 'interested' witness". Even in an earlier judgment, the Honourable Supreme Court dealt at some length as to the rational wisdom of seeking corroboration in certain circumstances. In Nazir and others v. The State PLD 1962 SC 259, it also commented upon the kind of corroboration which is required. The Honourable Court observed as under :-- "There may be an interested witness whom the Court regards as incapable of falsely implicating an innocent person. But he will be an exceptional witness and, so far as an ordinary interested witness is concerned it cannot be said that it is safe to rely upon his testimony in respect of every person against whom he deposes." As to the quality and nature of corroboration the august Supreme Court in the same judgment observed :-- "For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth." The dictum laid down above was reiterated by the Honourable Supreme Court in yet another judgment i.e. Sharif and another v. The State 1973 SCMR 83 and it was observed as follows :-- "Eye-witnesses interested and partisan-Necessary to look for corroboration-Such corroboration need not be such as would, by itself, justify conviction-Conformatory circumstances to be looked at for supporting ocular evidence not implicitly reliable-Corroboration may be afforded by anything in circumstances of case which tends to satisfy mind of Court of witness having spoken truth." 9. Keeping in mind the afore-referred principles laid down by the august Supreme Court for appreciation of the evidence of related and interested witnesses we find that the occurrence took place in daylight. The place of occurrence is near a graveyard and it is not expected that early in the morning there would be many people going that way. The eye-witnesses are natural witnesses as reasonable explanation has been tendered by them for their being present at the spot as all of them were going for harvesting in the month of May. The appellant had a motive to kill Adalat Beg deceased. The medical evidence corroborated the ocular account With regard to the time between the occurrence and death. The afore-referred circumstances would have a corroborative value to lend credence to the ocular account furnished by the eye-witnesses who are related. So far as the argument of the so-called discrepancy between the medical evidence and the ocular account qua the firing range is concerned, we notice that the occurrence took place on 16-5-1991 and the statement of P.W. 6 was recorded on 25-4-1993 i.e. after a period of almost two years. If such a period had elapsed, a witness is not expected to remember the exact firing range and it he in cross-examination stated that the appellant fired from a distance of one foot there could be an honest lapse. Similarly, the distance given by P.W.7 in cross-examination as five feet may not be the exact distance. To say that since there was no blackening around the injury received by the deceased, therefore, the eye-witnesses are telling a lie would be an over-simplification. 10. Keeping in view the time gap between the day of occurrence and the day of eye-witnesses were examined in Court and the fact that the firing range cannot be measured with exactitude, the so-called discrepancy between the medical evidence and the ocular account qua the range of firing would not be fatal for the prosecution case. 11. Coming to the question of sentence, the motive is admittedly rather old and no immediate motive has been brought on record. The appellant is attributed a single shot and he did not repeat the firing. These are to our mind valid extenuating circumstances to warrant lesser sentence. We, therefore, convert the sentence of death awarded to Asghar Beg appellant into life imprisonment. As the offence is being reduced from one of Qisas to Tazir, provisions of section 544-A, Cr.P.C. will be operative. We, therefore, award a sum of Rs. 50,000 as compensation which if recovered will be paid to the legal heirs of Adalat Beg deceased in default whereof the appellant shall undergo R.I. for slx months. The appellant shall also be given benefit of section 382-B. Cr.P.C. 12. In view of what has been discussed above, there is no merit in Criminal Revision No. 172 of 1994 which is hereby dismissed. 13. Murder Reference No. 234 of 1993 and Criminal Appeal No. 630 of 1993 are disposed of in the above-noted terms. (M.A.A.) Appeal partly accepted

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1833 Present: AHMAD SAEED AWAN, J. MUHAMMAD HANIF-Appellant versus STATE-Respondent Criminal Appeal No. 549 of 1993, decided on 15th October, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 364-Framing of charge-Essential ingredients-Kidnapping and abduction in order to murder are essential elements to frame charge under S. 364, P.P.C. [P. 1836] A (ii) Pakistan Penal Code, 1860 (XLV of I860)- —S. 364-Appreciation of evidence-Record did not show that either the deceased was compelled by force to accompany the accused or he was so induced by any deceitful means-Statement of the prosecution witness from whose shop the deceased was called out by the accused was not corroborated by any other witness or circumstantial evidence and the same did not inspire confidence-Trial Court had discarded the extrajudicial confession made by the accused and had acquitted him under S. 302, P.P.C. but Trial Court, merely on suspicion and without any confidence inspiring evidence and without framing a charge under S. 364, P P.C. had convicted the accused under S. 364, P.P.C.--Trial was ab initio illegal and unwarranted and prosecution had failed to prove its case heyond reasonable doubt-Accused was acquitted in circumstances. [Pp. 1836 & 1837] B, C, E & F (iii) Pakistan Penal Code, 1860 (XLV of 1860)- —-S. 364-Qanun-e-Shahadat (10 of 1984), Art. 117--Appreciation of evidence-Suspicion-Suspicion, however, strong it may be, by itself cannot take the place of proof. [P. 1837] D Hamced Ullah Khan Niazi, Advocate for Appellant. Sheikh Abdul Majid, Advocate for the State. Date of hearing : 15th October, 1995. judgment This appeal is directed against the judgment, dated 15-8-1993 whereby the learned Additional Sessions Judge, Mianwali convicted the appellant Muhammuu Ilanif son of flam Din under section 364, P.P.C. and sentenced him to undergo imprisonment for life with a fine of Rs. 25,000, in default of the payment of fine to further undergo three years' R.I. 2. The occurrence in this case took place on the night between 6/7 June, 1991 in the area of Chak No. 11/M.L. situated in Police Station Peelan, District Mianwali and the F.I.R. Exh. P.E. was got registered at the instance of Hakam Ali (P.W. 8) on 7-6-1991 at about 7-00. The prosecution story in brief as narrated in the F.I.R. is that on the night between 6/7 June, 1991 the complainant alongwith Muhammad Sharif, Anwar Ali and Muhammad Anwar real brothers and Jamshed Ali son of Imam Din paternal-cousin were present in the Baithak. At about 11-30 p.m. Muhammad Anwar went to his house and the complainant alongwith aforesaid persons slept on the Chabutra of the Baithak. At about 6-00 a.m., when the complainant woke up, he came to know through general public that a dead body of some unknown person was lying near the Pakka road leading from Chak No. 12/ML to Chak No. 10/ML. The complainant after reaching the place where the dead body was lying identified the same to be his brother Muhammad Anwar. The deceased was found received injuries on the right side of neck and head with sharp-edged weapon. It is further alleged that in the village one Mst. Shameem alias Seema, a woman of lax character might have got murdered the deceased by Muhammad Hanif accused and co-accused Muhammad Rafiq (since dead). It is further stated that the deceased had visiting terms with the said lady and the accused alongwith Muhammad Rafique co-accused had also illicit relations with the said lady. 3. After the investigation, Muhammad Hanif appellant alongwith Muhammad Rafique co-accused (since dead in jail) were challaned to face the trial under section 302/34, P.P.C. The appellant alone was charged under section 302, P.P.C. who denied the charge and claimed trial. 4. The prosecution in support of the case produced as many as 12 witnesses. The statement of the appellant was recorded under section 342, Cr.P.C.; he opted to produce defence evidence but did not appear as his own witness under section 340(2), Cr.P.C.; the appellant refuted the prosecution llegations by stating hat he had voluntarily appeared before the nvestigating Officer and his detention was not shown by the police on 7-6- 1991; was involved in suspicion due to enmity between his father and the deceased because of civil litigation regarding the land situated in Chak. No. 11/ML and pleaded innocence. The learned trial Judge discarded the evidence of prosecution regarding the extra-judicial confession made by the accused appellant before P.W. 6 Muhammad Iqbal as it was not corroborated by any independent witness; the learned trial Judge relying on the statement of P.W.3 Abdul Qayum considering him as independent witness concluded the trial by observing that the actual commission of murder of the deceased by the appellant/accused is not established but it is established that he took away the deceased which means abducted deceased from the shop of P.W.3 for the purpose of commission of murder of the deceased, hence, committed an offence under section 364, P.P.C. and sentenced him to life imprisonment accordingly. 5. Learned counsel for the accused/appellant vehemently conte ded that the ingredients of section 364, P.P.C. were not attracted, even the charge under section 364, P.P.C. was not framed; once the appellant was acquitted under section 302, P.P.C., the sentence under section 364, P.P.C. could not be awarded and the same is unwarranted. 6. Learned State counsel conversely opposed the arguments advanced by the learned counsel and contended that the deceased lastly seen with the appellant accused and the appellant accused played an actual part in calling out and taking away the deceased from the Bakery of P.W. 3 which tentamounts abduction of the deceased for the purpose of commission of murder of the deceased. 7. I have heard the arguments advanced by the learned counsel for the parties and have gone through the record and the law cited at the bar with their able assistance. 8. Hakam Ali P.W. 8, the complainant while recording the F.I.R. Exh. P.W. expressed his strong suspicion that Mst. Shamim had got murdered the deceased by the appellant accused and the co-accused (since dead) and even stated that possibility was there that some one else might also be involved for the commission of murder besides the aforementioned accused persons, but nowhere mentioned that the deceased was abducted by the appellant accused. 9. P.W. 3 Abdul Qayum stated that on the day of occurrence, he was sitting at his Bakery at about 11-30 p.m. alongwith Abdul Latif; he deceased also came o his shop at about 11-45 p.m. after 10/15 minutes the appellant accused also appeared there and called out the deceased and both went from there; the co-accused was also present with the appellant accused at that time. P.W. 3 in his statement neither alleged nor tated that the deceased was either forced or induced deceitfully to accompany the accused and his co-accused (since dead). 10. The contention of the learned counsel for the appellant accused that "took away" as observed by the learned trial Judge means "abduction" is an erroneous and is without force as the ingredients of section 364, P.P.C. are attracted to an offence if it qualifies the necessary efforts of the section i.e. kidnapping or abduction in an order to be murdered or so disposed of as to put in danger of being murdered. Kidnapping as denned by section 359, v . P.P.C. is of two kinds: (i) Kidnapping from Pakistan, and (ii) kidnapping from lawful guardian. The ingredient of kidnapping as mentioned in sections 360 and 361, .P.C. are not attracted as kidnapping can be of male less than 14 years of age if he is taken away or removed from the custody of his guardian. Abduction" as defined in section 362, P.P.C. means any person induced by any deceitful means or compelled by force to go from any place. The ingredients of kidnapping and abduction are necessary elements to frame charge under section 364, P.P.C. In case in hand, there is nothing on record that either the deceased was compelled by force to accompany the appellant accused or was induced by any deceitful means. Even no suggestion was put to P.W.3 from whose shop the deceased was called out by the accused appellant. 11. The statement of P.W.3 Abdul Qayum is not confidence inspiring, as observed by the learned trial Judge, as is neither corroborated by the circumstantial evidence nor by the P.Ws. as neither Zahid and Latif P.Ws. as mentioned by him in his statement were produced before the Court nor Lambardar in whose Baithak he had made statement before Muhammad Ashraf Hashmi, S.I. were produced as P.W. Abdul Qayum P.W.3 admitted in cross-examination that he had stated before Muhammad Ashraf Hashmi, S.I. that the appellant/accused had illicit relations with Mst. Shamim and had seen the appellant accused committing Zina with her. In view of the allegations of such a heinous nature, P.W.3 cannot be considered as an independent witness in the circumstances of the case. Hakam Ali P.W.8 complainant alleged that the appellant and the co-accused were having illicit relations with Mst. Shamim but neither any Punchait was held nor the police was informed in that regard. The P.W. stated in crossexamination that "public remained at the spot till 3/4 p.m. I also remained with the police during this period, nobody told me as to who was the real murderer of Anwar deceased". 12. It is interesting feature of the case that the whole prosecution story runs around Mst. Shamim and P.W. 8 Hakam Ali. The complainant brother of the deceased had expressed strong suspicion that Mst. Shamim had got murdered the deceased by the appellant accused and his co-accused (deceased) but Mst. Shamim was neither associated with the investigation of the case nor was examined as P.W. The investigation from the aforementioned facts is proved to be mala fide as a result of which some obvious facts have not been either brought on record or proved which might have given corroboration either to the prosecution or defence case. In such situation, as observed in case Shankar Behare v. State AIR 1969 Orissa 73: "The duty of the Court is to direct an acquittal". The appellant was named in the F.I.R. merely on suspicion. It is well-settled that suspicion by itself however, strong it may be, is not sufficient to take the place of proof of warrant of finding of guilt of the accused. The onus is always upon the prosecution to prove the guilt of the accused. 13. It is also an elementary rule of criminal law and procedure that the prosecution must establish its case; the accused is presumed to be innocent until his guilt is established beyond any reasonable doubt; where the essential ingredients of an offence has not been established, then it cannot be possibly said that the offence has been brought home to the accused and that his guilt has been proved beyond all reasonable doubts. The learned trial Judge discarded the extra-judicial confession made by the appellant/accused before the Councillor and had acquitted him under section 302, P.P.C., merely on suspicion without any confidence inspiring evidence and without framing the charge under section 364, Cr.P.C., which is ab initio, illegal and unwarranted and the prosecution has failed to prove its case beyond reasonable doubt. 14. The upshot of the above discussion is that it being a case of no evidence, the appeal is accepted. The conviction and sentence awarded by the learned trial Court is set aside and the appellant is directed to be released if his detention is not required in any other case. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1837 Present: RlAZ HUSSAIN, J. MUHAMMAD KHURSHID-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 1294/B of 1995, decided on 19th September, 1995. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Pakistan Penal Code (XLV of 1860), S. 324~Bail~Grant of-Locale of the injury was of much relevance to determine the intention or knowledge of the accused as envisaged by S. 324, P.P.C.--Fire-arm injury assigned to accused was on the ankle which was a non-vital part of body and it was not likely to result in death in usual course of nature, nor was so imminently dangerous as to be likely to cause death-Accused did not repeat the alleged overt act although the victim at the relevant time was at his mercy-Reasonable grounds, thus, did not exist to believe that the accused was guilty of the offence charged-Accused was admitted to bail. [P. 1839] A & B Sh. Sarfraz Ahmad Zia for Petitioner. Sh. Javaid Iqbal for the State. order The petition is an accused in case F.I.R. No. 13 of 1995, dated 18-1- 1995 for the offence under section 324, P.P.C. registered at Police Station Machiwal, District Vehari. He has preferred this bail application after the same was cancelled by the learned Additional Sessions Judge, Vehari. 2. Brief facts are that Muhammad Akhtar complainant stayed in the house of his close relative Majeed son of Khair Din one day prior to the occurrence. On 18-1-1995 at about 8 a.m. he proceeded to the house of Ramzan son of Imam Din. He was ambushed by the petitioner Muhammad Khurshid who fired from his gun which hit the complainant on the ankle of his right foot causing multiple injuries. Muhammad Ishaq son of Haji Wali Muhammad and the other persons of the same locality witnessed the occurrence but the petitioner decamped. 3. The petitioner in the first instance preferred an application before the Senior Civil Judge/Magistrate Section 30, Vehari who admitted the petitioner to bail vide his order, dated 28-2-1995. However, the bail of the petitioner was cancelled by the learned Additional Sessions Judge vide his order, dated 7-8-1995. Hence this application. 4. Learned counsel for the petitioner submits that the order of the Magistrate whereby the bail was granted to the petitioner was in consonance with the law laid down by the superior Courts whereas the learned Additional Sessions Judge cancelled the bail without any valid reason. 5. I have heard both the learned counsel and perused the record minutely. 6. Section 324, P.P.C. as amended by the Ordinance LXXffl of 1994, dated 25-10-1994 is as follows :-- "324. Attempt to commit Qatl-i-Amad.- Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused." It is, therefore, clear that the offence under section 324, P.P.C. as amended falls within the prohibitory clause of section 497, Cr.P.C. 7. However, it is the complainant's own version that the petitioner fired one shot which caused him injuries on his foot. The mere fact that the bone was fractured in the process did not mean that the petitioner's only intention was to commit the murder or that he had the knowledge, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd. In order to determine the aforesaid intention or knowledge of the petitioner, locale of the injury was of much relevance. In this c se the injury was found on the non-vital part of the victim. It also cannot be glossed over that the petitioner did not repeat the alleged overt act although the victim was at his mercy at the relevant time. Further the aforesaid injury was not likely to result in death in usual course of nature nor was so imminently dangerous was as to be likely to cause death. Reliance can be placed on Ch. Muhammad Anwar Samma etc. v. The State 1976 SCMR 168. The observation made by the learned Additional Sessions Judge that "actually the petitioner fired straight at the victim and that it was his sheer good luck that it injured him on his ankle and is alive today" was based on mere conjectures. Since the matter needed further inquiry, the order passed by the learned Magistrate was neither capricious nor whimsical. 8. There are no reasonable grounds to believe that the petitioner was guilty of the offence. I am, therefore, inclined to admit the petitioner to bail subject to his furnishing bail bond in the sum of Rs. 50,000 (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of A.C./Ilaqa Magistrate, Vehari. (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1839 (DB) Present: MIAN MUHAMMAD AJMAL AND jawaid nawaz khan gandapur, JJ. STATE-Appellant versus Mst. ZUHRA BIBI and ariother-Respondents Criminal Appeal No. 23 of 1990, decided on 28th November, 1994. (i) Criminal Procedure Code, 1898 (V of 1898)-- -—S. 164-Confession recorded during illegal confinement-Validity-­ Confession of an accused recorded during illegal confinement stands vitiated and has no legal value. [P. 1843] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 61-Custody of accused when unlawful-Person taken into control in a case shall be deemed to be under arrest from the day on which he submits to or is taken into custody by the police and has to be produced before a Magistrate within twenty-four hours, failing which his custody shall be illegal and without lawful authority. [P. 1843] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 417--Pakistan Penal Code, 1860, S. 302/202/109--Appeal against acquittal-No direct ocular evidence was available against the accused-­ Confessional statements allegedly made by accused were found to be having no legal value-Trial Court had properly appreciated the material on record and conclusion drawn by it was well-reasoned and wellfounded-Appeal against acquittal of accused was dismissed in circumstances. [P. 1844] C A.A.-G. for the State. Muhammad Akmal and Ghulam Mujtaba Khan Jadoon for Respondents. Date of hearing: 28th November, 1994, judgment Mian Muhammad Ajmal, J.-State through the Advocate-General N.-W.F.P. has filed this appeal under section 417, Cr.P.C. against the judgment of Sessions Judge, Abbottabad, dated 7-12-1989 whereby he acquitted the respondents of the charges under section 302/202/109, P.P.C., in case F.I.R. No. 784, dated 13-9-1988 Police Station Cantt. Abbottabad. 2. Muhammad Haroon complainant on 9-9-1988 at 12-30 noon reported to P.W. 7 in his house which was recorded at Mad. No. 18 of the daily diary, Police Post City Abbottabad (Exh. P.W. 7/1), that due to "Juma" holiday he was sleeping in his house and was awakened by his wife Mst. Rukhsana Bibi at 12-00 noon who informed him that his driver Wall Muhammad due to fire shot was lying in injured condition in his room. On receiving this information he went to the room of the driver and found him in injured condition and Mst. Zuhra Bibi wife of Abdur Rehman resident of Phullan Di-Bandi alongwith her baby was sitting beside him and weeping, and a .12 bore shotgun belonging to late Ghulam Muhammad (uncle of co plainant) was also lying there. He raised alarm on which his neighbourer's driver Jalal Baba reached there. He informed the police ost City Abbottabad on telephone regarding the occurrence. He, however, did not charge any body in his report for the murder of Wali Muhammad. 3. Mian Jawaid Hussain S.I. (P.W.7) recorded the report of Muhammad Haroon in daily diary, dated 9-9-1988 (Exh. P.W.7/1 and sought permission for inquiry under section 156(3), Cr.P.C. which was allowed and the inquiry was conducted by him. Thereafter he got incorporated the repor into F.I.R. (Exh. P.A) and proceeded to the spot, prepared site plan (Exh. P.W.), recovered shot-gun (Exh. P.A.), a piece of cloth blood-stained (Exh. P.3), two empties (Exh. P.2) one teapot alongwith two cups (Exh. P.4), one pair of boots (Exh. P.5), one pair of shoes (Exh. P.6) vide recovery memo. (Exh. P.W.2/1). He also recovered one shirt (Exh. P. 7), one jacket (Exh. P.8) belonging to deceased having cut marks and pellets (Exh. P. 9) one cartridge (Exh. P. 10) vide recovery memo. Exh. P.W.2/2. He also took into possession Rs. 2,276 (Exh. P. 11) one match box (Exh. P.12), Cigarettes packet (Exh. P. 13), Driving Licence (Exh. P. 14) one Key of Motor Car (Exh. P. 15) vide recovery memo. Exh. P.W. 2/3. He prepared injury sheet (Exh. P.W.7/4) and sent the dead body for post-mortem examination, prepared the inquest report (Exh. P.W.7/6). He also took in possession two notes of Rs. 10 (Exh. P. 16) vide recovery memo. Exh. P.W. 3/1. He prepared the site plan on the pointation of Khisro and also got recovered the confessional statements of Mst. Zuhra Bibi and Khisro. 4. Dr. Amjad Rehman, Medical Officer D.H.Q. Hospital, Abbottabad (P.W.6) on 9-9-1988 at 4-30 p.m. conducted the post-mortem examination of Wali Muhammad and found the following injuries on his person :-- External examination: A wound on the left side of umbilicus measuring 7x6 c.m. margins were reged up. Tissue was present. No blackening or other marks were loss seen around the wound. Internal examination: Left illiac vessels injured, walls of the abdomen were found injured. Small intestines in the left side were found injured and cut into pieces. Descending colon injured and cut into pieces. Left kidney shows small hole of pellet wound. Left illiac bone torn into pieces. In the opinion of the doctor the fire shots was made from front slightly and from close range. Probable time that elapsed between injuries and death was 3 to 4 hours and between death and post-mortem examination 1-1/2 hours. 5. Khan Afsar IHC (P.W.2) is marginal witness to recovery memo. Exh. P.W.2/1 vide which the Investigating Officer took into possession one single barrel shotgun (Exh. P.I) from the house of Haroon from the room of Wali Muhammad deceased alongwith one empty cartridge (Exh. P.2) giving fresh smell of discharge and blood-stained clothes (Exh. P.3), cups (Exh. P.4), pair of shoes (Exh. P.5), vide recovery memo. Exh. P.W.2/2 and Exh. P.W.2/3. Ayaz Khan, S.I. (P.W.3) is marginal witness to recovery memo. Exh. P.W.3/1 vide which the Investigating Officer had taken into his possession two currency notes of Rs. 10 from Anwar Zeb son of accused Mst. Zuhra Bibi. Sadiq Hussain (P.W. 4) incorporated the report into F.I.R. Exh. P.A. and recorded the statement of P.W. Ali Asghar under section 164, Cr.P.C. Muhammad Haroon (P.W.5) reiterated the story as already reported by him. Mst. Farzana (P.W.8) stated that on the day of occurrence, she was preparing milk for her child and in the meanwhile a lady came there and inquired about her husband and also disclosed that their driver has shot himself dead. She informed her brother-in-law who went out and found Wall Muhammad lying in injured condition. He told her sister-in-law that a woman had fired at him. He asked to take off his shoes which were removed by the woman present there. Thereafter his brother-in-law informed the police on telephone. After conclusion of the prosecution evidence both the accused were examined under section 342, Cr.P.C. who claimed innocence and false charge. The learned Sessions Judge, Abbottabad on appreciation of available evidence while giving benefit of doubt acquitted them. 6. Learned Assistant Advocate-General contended that respondent No. 1 was associated with the investigation of the case under section 156(3), Cr.P.C. and was arrested on 13-9-1988. She thereafter confessed her guilt on 14-9-1988 inculpating herself with the comission of the crime. He further submitted that the presence of the accused-respondents in the house of the complainant is proved by their inculpatory confessional statements which are fully corroborated by other evidence on the record, hence their acquittal deserves to be set aside and they be convicted and sentenced. 7. Learned counsel for the respondents on the other hand submitted that the so-called confession was retracted immediately and the same being an extracted and procured on through third degree method cannot be relied upon. He submitted that the gun found from the spot with which the deceased was done to death belonged to the uncle of P.W. Muhammad aroon which would suggest that the offence was not committed by the appellants but by Muhammad Haroon etc. and in this regard he referred to the applications of the brother of deceased namely, Muhammad Ashraf hich were addressed to he Deputy Inspector-General of Police and Senior Superintendent of Police, Abbottabad, wherein he charged Muhammad Haroon and other for the murder of his brother. He vehemently defended the acquittal order. 8. After hearing the learned counsel for the parties and going through the record of the case we are of the view that there is no sufficient material on the record which could warrant the interference into the cquittal order. The perusal of the death certificate would show that the deceased when examined by the doctor at 1-15 p.m., was fully conscious and ell-oriented. His pulse was recorded 80 per minute whereas the B.P. was 100/60. According to the doctor the patient's statements were asked to arrange blood immediately so that laparotomy could be done but they took long time and by the time the blood was arranged, the patient was clinically in shock, hence laparotomy could not be done and he died due to excessive bleeding. This would show the gross negligence on the part of the attendants which contributed to the death of the deceased. Had the deceased been provided timely medical aid, there might have been a chance of his survival. We are at a loss to understand as to why the police or for that matter the doctor did not record the statement of the injured person who was fully capable of doing so. Mst. Zuhra Bibi, appellant had gone to the house of P.W. Muhammad Haroon only to lodge a protest against the deceased for his inducing a raid on her house but there she, after the murder of Wali Muhammad was taken into custody. Mian Javed Hussain, S.I. (P.W. 7) admitted that she was associated with the investigation of the case from 9-9-1988 to 13-9-1988 and was not produced before any Magistrate. He stated that he has read Police Rule 26.18-A, which provides that whenever a woman is associated in the investigation, the Deputy Inspector-General and Senior Superintendent of Police have to be informed through special diary but he did not mention the fact of information having conveyed to Deputy Inspector-General of Police and Senior Superintendent of Police in the daily diary. Section 46, Cr.P.C. provide that the Police Officer or other person making the arrest shall actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action. If any person to be arrested surrenders or submits to the custody either by word or action, he shall be deemed to be under arrest and such a person under Article 10 of the Constitution of Pakistan read with section 61 of Cr.P.C. has to be produced before a Magistrate within a period of twentyfour hours, and no person can be declared in custody beyond the said period without the authority of a Magistrate. And if anybody is declared without such authority, his confinement is declared without such authority, his confinement shall be illegal and without any lawful authority. Mst. Zuhra Bibi was produced before a Magistrate on 14-9-1988 who before recording her confessional statement filled in routine the answers in photostat form of memorandum of enquiry which contained the last question about her remaining in police custody and the answer recorded is two days. Whereas she in her application (Exh. D. 1) whereby she retracted from her confessional, statement stated that she was taken into custody on eventful day and detained alongwith her milk suckling baby in police post where she was subjected to torture to confess the murder. It is the duty of a Magistrate to check and verify factual position from the record viz-a-viz the answers of the confessor to see whether the confessor is making a voluntary statement or is simply towing the police line. Since the confession was got recorded during illegal confinement, hence it stands vitiated and has no legal value at all. It has become common practice with the police that they take a person into custody under the garb of associating him with the investigation of the case without following the procedure laid down in Police Rules, and after 'achieving their objectives, they show the detenu's arrest in the record according to their own convenience. This practice is highly deprecated being against the fundamental rights of a citizen as embodied in Article 10 of the Constitution of Islamic Republic of Pakistan and the law enunciated in section 61 of the Code of Criminal Procedure, thus a person taken into control in a case shall be deemed to be under arrest from the day on which he submits to or is taken into custody by the police and has to be produced before a Magistrate within twenty-four hours, failing which his custody shall be illegal and without lawful authority. So far as confession of Khisro appellant No. 2 is concerned, it too is no better than the confession of his coaccused, appellant No. 1. Moreover his confessional statement being self explanatory, cannot be regarded as a confession. 9. Muhammad Haroon (P.W.5) complainant has not conducted in a befitting and prudent manner in the whole affair. In ordinary course, after the receipt of information of the occurrence, he should have gone to the police station to lodge the report about the same but instead he informed police post city on telephone, whereupon Mian Jawaid Hussain S.I. (P.W.7) went to the spot where he recorded the report of the complainant (P.W.5) in daily diary at Mad 18, which after inquiry was incorporated into F.I.R. Fh, P.A. What prevented the complainant in reporting the matter in police station, if seen in the light of the applications of Muhammad Ashraf brother of the deceased, would suggest that he had guilty conscious and apprehended his own and his brother's involvement in the crime. The investigation in the ase does not appear to have been property and faithfully conducted as the oppressed ones were kept in illegal confinement and were made to confess whereas the privileged were set escort free. The crime weapon belonged to the uncle of the complainant which according to the one confessor, was brought by the deceased from the upper storey while according to the other, deceased went inside the house and brought the gun. Whereas complainant stated that he had kept the .12 bore shotgun in a room of servant quarter but his statement is falsified by the site plan where no servant quarter has been shown but there is only a room for driver adjacent to the gate. His statement is also not worth credence with regard to keeping the gun in servant quarter as legally it is not permissible to allow anybody to keep or retain the gun of another unless specially authorised by the competent authority. 10. It is still mystery that when the gun was brought by the deceased himself, how it reached the hands of the lady accused. According to the post-mortem report deceased was a young man having strong body aged about 36/40 years whereas Zuhra Bibi accused who was younger than the deceased, as her age recorded by Magistrate was 25/26 years while trial Court assessed it 35 years, could snatch the gun from a stronger man. 11. Admittedly there is no direct or ocular evidence against the accused and the confessional statements have been discarded having no legal value, thus prosecution failed to prove the charges against the appellants. The trial court has properly appreciated the material on the record and the conclusion drawn by it seems to be well-reasoned and well-founded to which no exception it taken. Consequently this appeal is dismissed. (M.A.A.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 1845 Present: S. IBNE ALI, CJ SOHAIL-Petitioner versus BADAM and another-Respondents Criminal Miscellaneous No. 753 of 1995, decided on 15th October, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 337-D--Normal penally provided by S. 337-D, P.P.C. no doubt is Arsh, but where the accused acts in a cruel or forceful manner the last portion of the section will certainly come into play which provides the punishment of imprisonment extending to ten years in addition to Arsh. [P. 1849] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Penal Code (XLV of 1860), S. 324/34--Bail--Grant of--Accused having motive for the offence was directly charged in the promptly lodged F.I.R. and was alleged to have caused a fire-arm grievous injury on the chest of the complainant alongwith his absconding co-accused in a wellarranged attack-Reasonable grounds existed to believe that prima facie accused was connected with the crime punishable under second part of S. 337-D, P.P.C.-Bail was declined in circumstances. [P. 1849] B, D & E (Hi) Criminal trial- — Mens rea-Intention of the accused in criminal cases is to be gathered or inferred from the external act attributed to him. [P. 1849] C Mian SherAkbar, Advocate for Petitioner. Malik Hamid Saeed, A.A.-G. for the State. KG. Sabir, Advocate for the Complainant. Date of hearing: 27th September, 1995. order The petitioner herein is charged alongwith his absconding coaccused Haroon under section 324/34, P.P.C. Qisas and Diyat Ordinance for causing fire-arm injury in the chest to complainant Badam on 24-4-1995. He was allowed bail by the learned Sub-Divisional Magistrate, Lahore, District Swabi vide his order, dated 28-5-1995. On application by the complainant the learned Additional Sessions Judge, Swabi cancelled the bail of the petitioner vide his order, dated 2-8-1995. Hence this application for bail. 2. The prosecution case is that on the day of occurrence the complainant had gone to the house of his relative. The petitioner and his absconding co-accused Haroon had way laid him. At 7-00 hours while he was on his way back to his house, the two accused on seeing him fired at him as a result of which he was hit in the chest. Rawail and Abdul Ghafoor witnessed the occurrence. Motive attributed to the two accused allegedly was that on the preceding day there had ensued altercation between the parties. 3. The report of the occurrence was lodged by the complainant the same day at 7-30 a.m. in Police Station Lahore. During investigation, the police recovered 7 empties of 7.62 bore from the place of occurrence. The complainant was medically examined by the Medical Officer. The complainant had sustained one fire-arm injury in the chest. The nature of the injury in the opinion of the Medical Officer was grievous. The petitioner was arrested after about a fortnight. 4. In support of this petition, the learned counsel for the petitioner contended that for the purpose of bail presently the case of the petitioner would fall under the second part of section 324, Qisas and Diyat Ordinance, which deals with the punishment of "Arsh". According to the learned counsel there is no justification to take into consideration the first part of the section which prescribes punishment of 10 years, imprisonment and fine as Tazir. In support of his contention, he referred to an authority reported in the case of Zulfiqar v. The State 1994 PCr. LJ 2285 to show that in a similar case under section 324, Qisas and Diyat Ordinance, the learned Judge observed that the intention of the accused to kill remains yet to be determined. The learned counsel for the petitioner further relied on an authority reported in the case ofBashir v. The State 1995 PCr. LJ 412 to show that in case where offence is obviated with payment of Diyat or "Arsh" or "Daman", the accused would be entitled to bail. The learned counsel further argued that as two persons have been charged for causing the fire-arm injury to the complainant and as it is yet to be determined as to with whose shot the complainant was hit, this according to the learned counsel, constitutes reasonable ground to justify bail to the accused. In support of his contention he relied on an authority reported in the case of Tariq Bashir v. The State PLD 1995 SC 34 to show that in that case the Honourable Judges of the Supreme Court observed that in a case where the accused satisfies the Court that there are no reasonable grounds to believe that he is connected with the crime he makes out a case for bail. He further relied on an authority of the Supreme Court in the case of Muhammad Afsar v. The State 1994 SCMR 2051 to show that in a similar case under section 324, Qisas and Diyat Ordinance, the Honourable Supreme Court allowed bail to the accused holding that the case of accused would fall under section 337-F(ii), P.P.C. (as amended). 5. The learned Additional Advocate-General on the other hand contended that the petitioner is directly charged in the F.I.R. for firing at the complainant as a result of which he was hit in the vital part of his body, the occurrence took place in broad daylight, two eye-witnesses have witnessed the occurrence, therefore, the petitioner is not entitled to bail. 6. Mr. KG. Saber, learned counsel for the complainant supported the argument of the learned Additional Advocate-General. 7. Before proceeding to deal with the contentions of the learned counsel for the petitioner in the light of the case-law relied upon by him, let us first examine section 324, Qisas and Diyat Ordinance, which reads as follows :-- " Attempt to commit QatI-e-Amd.--Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused : Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years." 8. This section of law consists of two parts. The first part deals with the cases of attempted murder in which no hurt is caused and provides a punishment of ten years' imprisonment and fine therefor. The second part deals with the cases in which hurt is caused. In the case falling under this part, it is to be seen as to what kind of hurt has been caused and the accused is to be awarded the punishment provided for the hurt. However, if the hurt so caused is punishable with Qisas and the same is not executable, the offender is to be awarded the sentence of imprisonment upto seven years as Ta'zir. 9. The instant case being not a case of ineffective firing, the first part of section 324, P.P.C. goes out of play and similarly the hurt caused to the victim being not punishable with Qisas, the proviso to the said section also does not apply. The victim, accoiding to the medical report, has received grievous injury on the left side of his chest which has extended to body cavity of trunk. In this respect, sections 337-B and 337-C are reproduced as under :- Section 337-B, Jurh~(l) Whoever causes on any part of the body of a person, other than the head or face, a hurt which leaves a mark of the wound, whether temporary or permanent, is said to cause Jurh. (2) Jurh is of two kinds, namely :-- (a) Jaifah; and (b) Ghayr-Jaifah. Section 337-C. Whoever causes Jurh in which the injury extends to the body cavity of the trunk, is said to cause Jaifah Keeping in view the nature and location of the injury caused to the complainant in the present case, it is clear that the hurt caused falls under the definition of Jaifah as given in section 337-C, P.P.C. which is punishable under section 337-D, P.P.C. with Arsh equal to one third of Diyat and the offender may also be awarded the punishment of imprisonment for a period upto ten years. 9. Coming to the contention of the learned counsel for the petitioner that since it is yet to be determined whether the accused did intend to kill the complainant or not and most probably he may be awarded the punishment of Ars/i only, therefore, in view of 1994 PCr. LJ 2285 and 1995 ' PCr. LJ 412, the accused is entitled to bail, it may be observed that both these authorities are distinguishable from the instant case. In the first cited case, none of the injuries was punishable with imprisonment for more than five years whereas in the instant case, the hurt caused is punishable with imprisonment for a period upto ten years in addition to Arsh. Moreover, in both the cited cases, the occurrences were not pre-planned and there was sufficient scope for further inquiry into the intention of the accused whether they did or did not intend to kill the victims thus giving vast way to the possibility that the accused would likely be awarded only the punishment of Arsh. From the facts of both the cited cases, it appears that the accused were in a position to do more than what they had done but they employed a certain degree of restraint and thus prima facie they deserved leniency and non-awarding of the discretionary sentence of imprisonment. In the instant case, the accused had waylaid the victim, had fired effectively at him with 7.62 bore rifles and did whatever was possible for them. They have caused grievous injury on the vital part of the body of the victim in a broad daylight and one can safely infer that the accused did believe that the injury caused to the victim was sufficient for causing his death, therefore, they left him without further firing at him in order to save their own skin. No doubt, the normal penally provided by section 337-D is Arsh but, in my opinion, where the accused acts in a cruel or forceful manner, the last portion of the section will certainly come into play which provides the punishment of imprisonment for a period which may extend to ten years in addition to Arsh. In the instant case, as stated above, the accused did have a motive for the offence, they had well arranged attack on the complainant, waylaid him, fired at him with sophisticated weapons, caused grievous injury to him on vital part and thus did all what was possible for. them, therefore, they have not employed any degree of restraint so as to confine their case to the normal penalty of Arsh and it is prima facie , bound to reach the second part of section 337-D, P.P.C. Thus at this stage, there is no possibility that the accused would be punished only with Arsh as were the cases in the cited authorities. 10. Similarly the authority reported as 1994 SCMR 2051 relied upon by the learned counsel for the petitioner is also distinguishable from the instant case. In that case, there was allegedly cross-firing between the parties. The victim had suffered injury on his ankle. The Honourable Supreme Court observed that it has yet to be seen as to who was the aggressor party. The Honourable Supreme Court also took note of the kind of the injury caused by the victim on his ankle and observed that the petitioner had caused simple injury on the ankle of the victim and it has yet to be seen whether petitioner had intended to commit his murder. In the present case, the victim sustained fire-arm injury on the vital part of his body. It was not a cross-case. It is alleged that the accused had waylaid the complainant party, therefore, he was charged under section 324 of the Ordinance. 11. For the present case of the petitioner cannot be isolated from the case of his absconding co-accused to hold that the petitioner was just a spectator at the time of occurrence and had not participated in the occurrence. In view of the material brought on record, reasonable grounds exist to believe that the two accused had formed common intention to kill the complainant therefore, they are equally responsible for the commission of the offence. It may be observed that it is an established principle of law in criminal cases that the intention of the accused is to be gathered or inferred from the external act attributed to him. The petitioner, as stated above, is directly charged in the F.I.R. There is no question of delay in lodging the F.I.R. Motive for the offence exists. The petitioner was arrested after about a fortnight. Reasonable grounds, therefore, exist to believe that prima facie petitioner is connected with the crime punishable under section 337-D. Qisas and Diyat Ordinance. 12. This bail application is, therefore, dismissed. (M.A.A.) Petition dismissed

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1850 Present: tassaduq hussain jilani, J. Mst. NASIM AKHTAR-Petitioner versus STATE and others-Respondents Criminal Miscellaneous No. 269/M of 1995/BWP, decided on 12th October, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 145-Criminal requirements for assumption of jurisdiction under S. 145, Cr.P.C. are (i) existence of a dispute, (ii) such dispute is likely to cause breach of peace, (iii) dispute is concerning land, water, building, markets, fisheries, crops or other produce of the land and the rents or profits of such property, (iv) dispossession if alleged is within two months prior to the initial order passed by the Magistrate, and (v) dispute is within territorial jurisdiction of the Magistrate concerned. [P. 1856] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 145-Scheme and duties of Magistrate under S. 145, Cr.P.C. elaborated: When a District Magistrate or a Magistrate receives an information or a police report for proceedings under section 145, Cr.P.C. the first thing that he has to do under the law is to examine the information/report so received and if after conscious application of mind he is of the view that the dispute to which reference has been made in the report or information is likely to cause a breach of peace he shall make a speaking order with regard to the grounds on the basis of which he desires to proceed and thereafter he shall issue notice to the parties concerned for appearance and to put in written statement of their respective claims qua the actual possession of the subject of dispute. It is only after receiving their respective claims, written statements and the evidence that they wanted to adduce that the Magistrate shall pass an order in terms (4) to section 145, Cr.P.C. and indicate as to which of the parties was in actual possession on the date when the initial order was passed. The proviso to this sub-section stipulates that if it is in evidence that a party was dispossessed within two months next before the date of initial order passed by the Magistrate then he may treat the party "so dispossessed as if he had been in possession on such date." [P. 1856 & 1857] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 145 & 561-A-Quashing of Sessions Court's order passed in revision-­ Magistrate while passing the order of restoration of possession of the disputed properly in favour of petitioner had not passed any initial order stating the grounds of his having been satisfied with regard to the existence of a dispute likely to cause breach of peace to warrant proceedings under S. 145, Cr.P.C.-Magistrate appeared to be more concerned with the merits of the claim of possession rather than the actual possession or the question of existence of dispute likely to cause breach of peace which was not even referred to by the petitioner either in her application or in the evidence led by her-Dispute simpliciter was not sufficient to confer jurisdiction on the Magistrate for taking action under S. 145, Cr.P.C. and the procedure adopted by him was not lawful-Order of Sessions Court setting aside the said order of Magistrate did not suffer from any legal infirmity to warrant interference-Petition was dismissed accordingly. [Pp. 1857 & 1858] C & E (iv) Criminal Procedure Code (V of 1898)- —-S. 145-Object of-Purpose behind S. 145, Cr.P.C. is to enable the Executive Authorities to maintain status quo till the parties have their matter decided by the Civil Court of competent jurisdiction. [P. 1858] D Mr. M.A. Rashid Chaudhry, Advocate for Petitioner. Mr. Sohail Mehmood Qureshi, Advocate for Respondent. Ch. Abdul Nabi, Advocate for the State. Date of hearing: 8th October, 1995. judgment Through this quashment petition, the petitioner has challenged the order, dated 6-4-1995 whereby Mr. Riazul Hassan Alvi, Additional Sessions Judge, Bahawalpur accepted respondents' revision and set aside the order, dated 9-3-1995 passed by Extra-Assistant Commissioner/Magistrate 1st Class, Yazman through which the said Magistrate had held the petitioner to be the actual owner of the Ihata in question and directed restoration of the said Ihata to her forthwith. 2. Brief facts leading to the filing of this petition are that as per averments made in the petition, petitioner's father Muhammad Ramzan entered to an agreement to purchase Ihata in dispute (measuring 2 Kanals 4 Marias) from Ghulam Sarwar vide agreement dated 23-12-1974. Initially it was a State land and after the grant of proprietory rights i.e. on 11-3-1990 petitioner's father asked Ghulam Sarwar to transfer the said land in terms of the afore-referred agreement. On his refusal, Muhammad Ramzan (petitioner's father) filed a suit for specific performance on 31-1-1991. The said suit was withdrawn and fresh suit was filed on 3-2-1992, in which, on 7-6-1992 an order of status quo was issued by the learned Civil Court. It is alleged that respondents forcibly ejected the petitioner on 18-6- 1994 from the Ihata in dispute. The said incident was reported to police and a case was registered vide F.I.R. No. 123 of 1994, dated 18-6-1994 under section 452/379/148/149, P.P.C. at Police Station Yazman. It is submitted that the petitioner moved the Assistant Commissioner concerned hut it was of no avail. Consequently, on a miscellaneous application moved before this Court, the District Magistrate, Bahawalpur was directed to proceed under section 145, Cr.P.C. The District Magistrate, in turn, entrusted this case to the learned Magistrate who vide his order, dated 9-3-1995 ordered restoration of petitioner's possession under section 145, Cr.P.C. This order was challenged in revision and vide the impugned order, dated 6-4-1995, the learned Additional Sessions Judge, Bahawalpur set aside the same on the ground that as the matter was subjudice between the parties in a Civil Court of competent jurisdiction there was no justification to interfere under section 145, Cr.P.C.; 3. Learned counsel for the petitioner has raised following points in support of this petition :-- (i) that proviso to sub-section (4) of section 145, Cr.P.C. does not lay down any period of limitation within which an aggrieved person has to move under the afore-referred provision; (ii) that sub-section (6) of section 145, Cr.P.C. visualize two suggestions and petitioners' case fell in the first category; (iii) that the pendency of a civil suit is no bar for initiation of proceedings under section 145, Cr.P.C.; (iv) that the respondents never went to the learned Civil Court for a stay order and they could not claim ouster of jurisdiction under section 145 of the Cr.P.C. In support of his submissions, learned counsel relied on the following judgments :-- (i) Yunus Meah v. Abdur Rashid and 7 others 1969 PCr. LJ 759. (ii) Ghulam Murtaza and others v. The Sessions Judge, Leiah and others 1987 SCMR 622. (iii) Abdul Qudoos v. Mangta PLD 1980 Azad J & K 17. (iv) Hqji Muhammad Ashrafv. The State 1988 PCr. LJ 2268. (v) Sh. Sardar All v. The State and another PLD 1987 Lab.. 633. 4. Learned counsel for the respondents, on the other hand, submits that the respondents were owner in possession of the disputed Ihata qua which petitioner had filed civil suit for specific performance against Ghulam Sarwar and that respondents were never party in the said suit. However, he admits that they stand impleaded as party and the evidence of petitionerplaintiff is complete and the respondents shall produce evidence on the next date of hearing. He further contended that as per petitioner's own showing she was dispossessed from thelhata in dispute on 18-6-1994 and she did not move the learned Haqa Magistrate under section 145, Cr.P.C. within two months and these proceedings were initiated by the District Magistrate on the direction of this Court dated 26-12-1994 given in Criminal Miscellaneous No. 805/M of 1994. According to the learned counsel the proceedings and order of restoration of possession is not maintainable in view of the First Proviso to sub-section (4) of section 145, Cr.P.C. which reads as under :— "Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date." The learned counsel relied on Khalid Waheed Khawaja v. District and Sessions Judge, Karachi South and another 1992 PCr. LJ 2158 and Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581 to contend that two months having elapsed since the alleged dispossession from the Ihata in question no proceedings under section 145, Cr.P.C. were maintainable and the learned Additional Sessions Judge had rightly set aside the order passed by the learned Ilaqa Magistrate. 5. I have heard the learned counsel for the parties and have also gone through the precedent case-law which have been mooted at the Bar. 6. In Yunis Meah v. Abdur Rashid and 7 others 1969 PCr. LJ 759 the law laid down is that "Magistrate on inquiry has to decide and give a finding as to which of the parties was in actual physical possession of the property on the date of preliminary order". In Abdul Qudoos v. Mangta PLD 1980 Azad J & K 17 it was observed that there was no bar to proceed under section 145, Cr.P.C. despite the pendency of civil suit "if the circumstances are such which require the interference of a criminal Court to avoid a breach of peace over the subjectmatter of dispute". In Haji Muhammad Ashraf v. The State 1988 PCr. LJ 2268 the proceedings under section 145, Cr.P.C. had been challenged on the ground that qua the same subject-matter a civil suit was pending. The petition was dismissed on the ground that as no order for injunction had been passed by any civil Court, the petitioner had a remedy of filing written statement before the criminal Court in proceedings under section 145, Cr.P.C. In Sh. Sardar All v. The State and another PLD 1987 Lah. 633, proceedings pending under section 145, Cr.P.C. were challenged. In this case the petitioner had been dispossessed from the property in question a day before his filing of application under section 145, Cr.P.C. and the Assistant Commissioner refused to pass any order as according to him "since the title of the disputed house as well as tobacco stored therein is disputed one, therefore, this Court is reluctant to pass any order regarding the disposal of tobacco. He, therefore, directed the parties to settle their dispute regarding sale of disputed property and disposal of tobacco by knocking at the door of the competent Court which is the civil Court". This order was challenged in revision and the learned Sessions Judge remanded the case to the Assistant Commissioner with a direction to decide the matter afresh in accordance with law after providing the parties an opportunity to produce their evidence. In remand the Magistrate once again rejected the application for an action under section 145, Cr.P.C. on the ground that the agreement to sell which formed basis of his ownership had not been proved as no attesting witness was examined for proving the execution of the said agreement to sell. This order was once again challenged before the Court of Sessions who set aside the order of the Magistrate and directed him to take steps to restore the possession of the disputed house to the petitioner as also to restore the , tobacco or its price to him. This order was challenged in the quashment petition and this Court upheld the order of the learned Sessions Judge to the extent of restoration of the house to the petitioner but set aside the order in so far as it directed the restoration of tobacco or its price to the respondents in that case. In Ghulam Murtaza and others v. The Sessions Judge, Leiah and others 1987 SCMR 622, the Magistrate directed restoration of possession of the petitioner as he came to the conclusion that he had been dispossessed. The matter was also subjudice before a Civil Court in an application filed / under section 12 (2), C.P.C. against the judgment and decree on the basis of which Bashir Ahmad was declared owner in possession of the property in question. The order of the Magistrate was challenged in revision before the District and Sessions Judge and the same was dismissed. The order of the learned Sessions Judge was challenged in a Constitutional petition and this also met the same fate. The matter was taken to the Honourable Supreme Court in C.P.S.L.A. which too was dismissed and the August Supreme Court reiving on a judgment reported in Abdul Aziz and others v. Mian Rafiuddin 1983 SCMR 928 dismissed the petition holding that mere institution of a civil suit does not oust Magistrate's jurisdiction to proceed under section 145, Cr.P.C. 7. The facts in the afore-referred precedent case-law are entirely different and the case in hand is distinguishable. The precise question which has cropped up for consideration before this Court is whether proceedings under section 145, Cr.P.C. can be initiated and can an order be passed for restoration of possession of a person who has been dispossessed from the property in question on a date two months prior to the filing of the application under section 145, Cr.P.C.? 8. In Fazal-e-Hussain v. Farooq Ahmad and another 1991 PCr. LJ Note 191 it was held "Facts as disclosed in report did not show that vendor/respondent was dispossessed within two months prior to filing of report-Application under section 145, Cr.P.C. having not been filed within two months from the date of alleged dispossession of respondent/vendor Court below had erred in taking action under section 145, Cr.P.C.-- Proceedings pending against applicant/vendee under section 145, Cr.P.C. were quashed". In Barkat Bhatti and 5 others v. The State and 4 others 1987 PCr. LJ 281, proceedings were quashed on the ground and it was observed that "Petitioners admittedly in possession of disputed property for more than two months prior to passing of impugned order under section 145(1), Cr.P.C." In this case, the property in dispute was subject-matter of litigation between both the parties in a Civil Court and the learned Civil Court had already granted on order of status quo. One of the parties got initiated proceedings under section 145, Cr.P.C. in the Court of Sub-Divisional Magistrate and those proceedings were challenged in revision before the learned Court of Session. The Sessions Judge relied on the precedent case-law and stayed the proceedings under section 145, Cr.P.C. till such time the Civil Court decides the suit filed by the parties qua the same subject-matter. This order of the learned Sessions Judge was challenged and Division Bench of Karachi High Court dismissed the petition and upheld the order of the learned Sessions Judge. In Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581, the order of the Magistrate appointing receiver qua the properly in question was set aside (order was passed under section 145, Cr.P.C.) In Muhammad Iqbal and others v. Abdul Bari and others 1994 SCMR 379, leave was granted by the Honourable Supreme Court against the remand order passed by the High Court whereby the Magistrate was directed to decide the matter afresh under section 145, Cr.P.C. notwithstanding the fact that the matter was pending adjudication in a Civil Court and the Magistrate and Sessions Judge had found that there was imminent breach of peace concerning the man in question. 9. The analysis of the above-referred case-law would indicate that the judicial requirements for assumption of jurisdiction of the Magistrate under section 145, Cr.P.C. are the following :-- (i) The existence of a dispute; (ii) The said dispute is likely to cause breach of peace; (iii) The dispute is concerning land/water/buildings/markets/ fisheries/crops or other produce of the land and the rents or profits of such property. (iv) Dispossession if alleged is within two months prior to initial order passed by the Magistrate; and (v) The dispute is within the territorial jurisdiction of the Magistrate concerned. 10. A perusal of the application given by the petitioner before the District Magistrate pursuant to an order of this Court, dated 22-12-1994 passed in Criminal Miscellaneous No. 805/M of 1994 shows that petitioner complained that respondents had taken forcibly possession of the disputed Ihata on 18-6-1994 and that a case qua the said occurrence has been registered vide F.I.R. No. 125 of 1994 at Police Station Yazman. Similarly the statement of the petitioner recorded before the Magistrate during proceedings under section 145, Cr.P.C. carries the same grievance that she had been dispossessed on the afore-referred date despite the fact that the matter was subjudice before a Civil Court and the said Court had granted stay in her favour. The other witnesses examined by her, namely, Shamsul Haq (P.W.3) and Muhammad Ramzan (P.W.4) corroborated P.W.I and narrated more or less the same story. 11. When a District Magistrate or a Magistrate receives an information or a police report for proceedings under section 145, Cr.P.C. the first thing that he has to do under the law is to examine the information/report so received and if after conscious application of mind he is of the view that the dispute to which reference has been made in the report or information is likely to cause a breach of peace he shall make a speaking order with regard to the grounds on the basis of which he desires to proceed and thereafter he shall issue notice to the parties concerned for appearance and to put in written statement of their respective claims qua the actual possession of the subject of dispute. It is only after receiving their respective claims, written statements and the evidence that they wanted to adduce that the Magistrate shall pass an order in terms of sub-section (4) to section 145, Cr.P.C. and indicate as to which of the parties was in actual jpossession on the date when the initial order was passed. The proviso to this (sub-section stipulates that if it is in evidence that a party was dispossessed Kvithin two months next before the date of initial order passed by the Magistrate then he may treat the party "so dispossessed as if he had been in possession at such date". 12. Sub-section (6) to section 145, Cr.P.C. provides that if the party was in possession or should be treated in possession in terms of sub-section (4) then the Magistrate shall make an order declaring such party to remain in possession until evicted therefrom in due course of law. Thus, this summary procedure makes arrangements for extending protection to possession of a party who was in actual possession when the first order was made by the Magistrate in proceedings under section 145, Cr.P.C. or the party was dispossessed within two months the of initial order 13. Notwithstanding the afore-referred provisions of law, the Magistrate who passed order of restoration of possession did not pass any initial order stating therein the-grounds of his having satisfied with regard to existence of a dispute likely to cause breach of peace to warrant proceedings under section 145, Cr.P.C. A perusal of the filed order, dated 9-3-1994 passed by the Magistrate shows that he was more concerned with the merits of the claim of possession rather than the actual possession or the question of existence of dispute likely to cause breach of peace. The procedure adopted by the learned Magistrate, therefore, is not mandated in law. Neither in the application given by the petitioner before the District Magistrate nor in the evidence led by her before the learned Magistrate there was any reference to a dispute likely to cause beach of peace. A dispute simpliciter would not constitute a jurisdictional fact for an action under the afore-refer red provision. In Sharnsuddin Ismail and others v. The State and others PLD 969 Kar. 515 a similar view was taken and the order passed by the Magistrate was set aside and it was observed as under :-- "Satisfaction of Magistrate from police report or other information that dispute likely to cause breach of peace exists or existed-Condition precedent to exercise of jurisdiction under section-Complainant no where alleging in complaint that dispute likely to cause breach of peace exists or existed-Magistrate, in circumstances, held, could not take cognizance of case nor could he pass attachment order under sub-section (4)-Magistrate would still have no jurisdiction should allegations be not supported by evidence." Commenting on the procedure to be adopted by the Magistrate under sub-sections (4) and (6) to section 145, Cr.P.C. the Honourable Supreme Court in Mirza Abdul Razzaq v. Barkat All and others 1985 SCMR 1235 observed as follows :-- "Criminal Procedure Code (V of 1898)- —-S. 145 (4)(6), first proviso-Magistrate on satisfaction of jurisdictional requirements is required to decide any and which of the parties was at date of order in possession of property-Magistrate expressly precluded from examining merits of claims of any such parties to a right to possession subject of dispute-Magistrate, however, is empowered to determine whether any party has been forcibly and wrongfully dispossessed within two months before date of preliminary order, and if so, Magistrate could treat that party as dispossessed as if it had been in possession such date-Jurisdiction of Magistrate is retained till an order of restoration of possession was passed where other requirements of law were satisfied-Such order was a necessary adjunct of proceedings and without that proceedings did not finally come to an end and Magistrate could not become functus officio losing seisin of matter." 14. Coming to the question as to whether the jurisdiction of a criminal Court is barred when a matter qua the same-matter is pending decision before a Civil Court, I may observe, depends on the circumstances of each case. If the circumstances which emanate from the evidence on record are such as required interference of a criminal Court to avoid a breach of peace over the subject-matter, the criminal Court shall have jurisdiction to proceed under section 145, Cr.P.C. Similarly, if a Civil Court seized of the matter in dispute has passed no injunctive order qua the subject-matter in dispute proceedings under section 145, Cr.P.C. would be competent The purpose behind this provision of law is to enable the executive authorities to maintain status quo till parties have their matter decided by a Civil Court of competent j urisdiction. 15. For what has been discussed above, the impugned order, dated 6-4-1995 passed by Mr. Riazul Hassan AM, the learned Additional Sessions Judge, Bahawalpur whereby he set aside the order of Extra-Assistant Commissioner/M.I.C., dated 9-3-1995 does not disclose any legal infirmity to warrant interference. This petition, therefore, has no merit which is dismissed. 16. Both the learned counsels requested that the Civil Court be directed to decide the matter pending before it expeditiously. The request is reasonable. In the interest of justice I am inclined to direct the learned trial ourt (Mr. Mukhtar Ahmad Khokhar, Civil Judge 1st Class, Bahawalpur) seized of the case titled Muhammad Ramzan v. Muhammad Ismail etc. to decide the same expeditiously preferably by 30th November, 1995 under intimation to the Additional Registrar of this Court. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1859 Present: SARDAR MUHAMMAD RAZA, J. HAMID GUL-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 644 of 1995, decided on 12th September, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4- Bail-Grant of-Accused a conductor of the vehicle wherefrom "Charas" was recovered, who denied his knowledge about its presence in the vehicle in his confessional statement which was of exculpatory nature-­ Accused was hardly 13 or 14 years old and it was yet to be determined if a boy of such tender age could be taken into confidence by drug traffickers- Accused was admitted to bail. [P. 1861] C & D (ii) Prohibition (Enforcement of Hadd) Order (4 of 1979)- —Art. 16--Cognizance of offences-Conjunction "and" used between Arts. 16(l)(a) & 16(l)(b) of the Prohibition (Enforcement of Hadd) Order, 1979 does not operate to bring the two categories at par and does not make the rider "if committed at a public place" equally applicable—Offence under Art. 3 is, therefore, cognizable in any case without any condition, whereas offence punishable under Art. 4, Art. 8 or Art. 11 is cognizable only if committed at public place. [Pp. 1860 & 1861] A & B 1988 PCr.LJ 591; PLD 1990 Pesh. 158 and 1995 PCr.LJ 1472 dissented from. Mr. Hussain All, Advocate for Petitioner. Mr. Muhammad Khurshed Khan, Asstt. A.G. for the State. Date of hearing: 12.9.1995. judgment Shah Wali Khan, D.S.P., C.I.A., on 22.2.1995 at 14.45 hours near Bara Gate recovered 80 Kgs. of contraband "Charas" from Pick-up No. CH- 2141 driven by Jehangir Khan driver and conducted by Hamid Gul. The latter was refused bail by the two Courts below and hence this petition. 2. The first serious attack against the recovery is made with reference to Article 16 of the Prohibition (Enforcement of Hadd) Order, 1979, the relevant portion whereof is reproduced below: - "16. Cognizance of certain offences.~(l) The following offences shall be cognizable, namely: - (a) an offence punishable under Article 3; and (b) an offence punishable under Article 4, Article 8 or Article 11, if committed at a public place." It is claimed that in view of the above Article, the offences falling under Articles 3, 4, 8 and 11 are non-cognizable and that those become cognizable only if committed at a public place. According to them the vehicle, in view of Article 2(j) of the Order was not a public place. Before entering into discussion of the above point of law it may be settled with reference to the present case that it apparently is one of transportation and trafficking of contraband "Charas" and falls squarely within the mischief of Article 3 of the Prohibition Order, 3. The learned counsel for the petitioner, in support of his arguments relied upon Mukhtar alias Karoo v. The State 1988 PCr.LJ 591, Musarrat Shah v. The State PLD 1990 Pesh. 158 and a judgment of my own n Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472 where it was held in all such udgments that offences under Articles 3, 4, 8 and 11 of the Prohibition Order were cognizable only if committed at a public place. It is observed that due to conjunction and" used between Articles 16(l)(a) and 16(l)(b) it brought both the categories (a) and (b) at par and the rider" if committed at a public place" was applicable to both the categories i.e. all the offences falling under Articles 3, 4, 8 and 11 of the Order. 4. After having gone through the provisions of Article 16 and other case law as well, I hold, with due deference to the aforesaid rulings that it was not a correct interpretation of Article 16 of the Prohibition Order and I was also not properly assisted in Mst. Iqbal Bibi v. The State 1995 PCr.LJ 1472. 5. The conjunction "and" used between Articles 16(l)(a) and 16(l)(b) does not operate at all to bring the two categories at par and does not make the rider "if committed at a public place", equally applicable, had the legislature intended to make this condition equally applicable to categories (a) and (b), t ere was no sense n making the categorization at all and it could have easily been said under one category alone that all offences under Articles 3, 4, 8 and 11 would be cognizable if committed at a public place. The interpretation given by the learned counsel does not appeal to logic because offences of transportation and trafficking etc. are most likely to be committed at public places and through vehicles. 6. A correct appreciation was made first in Yaseen v. The State PLD 1988 Kar. 69 where it was held that offence under Article 3 was cognizable anyway whereas offence under Article 4 was cognizable only if committed at a public place. As it was a case covered by Article 4 alone, therefore, remaining Articles 8 and 11 were not brought under discussion. After Yaseen v. The State this problem was elaborately taken up and discussed by Federal Shariat Court in State u. Sohail Mimed PLD 1990 Federal Shariat Court 29 in this Division Bench judgment of the Court it was observed and rightly so that the split of Article 16 into (a) and (b) must be meaningful. "Only reason", it was observed, "is that while portion (a) of Article 16 is free from any fetters, portion (b) is subject to a rider "if committed at a public place". The learned Judges of the Federal Shariat Court further observed that if the intention of the legislature was to cover up Article 3 under Ihe rider "if committed at a public place" then there was no rationale for keeping Article 3 under an independent clause (a). Following such findings and disagreeing with the counter view and also my own previous view, I hold that an offence under Article 3 is cognizable without any conditions imposed. 7. Coming to the merits of the present case, the petitioner Hamid Gul is a minor boy of 13. There are confessional statements on file of the driver as well as the petitioner-conductor wherein they have completely denied the knowledge about the contents of the vehicle. Both the documents lack inculpatory nature. If still those are relied upon by the prosecution then the petitioner is entitled to be released on bail till his knowledge of the contraband material is established at trial. The age of the petitioner is hardly 13/14 and it remains yet to be believed if a boy of this age would be taken into confidence by drug traffickers qua the huge quantity involved. 8. In the circumstances, the petitioner is directed to be released on bail provided he furnish bail bond in a sum of Rs. 80,000 with two local, reliable and resourceful sureties each in the like amount to the satisfaction of Ilaqa Magistrate alone. (M.A.A.) Bail granted

PLJ 1996 CrrC PLJ 1996 Cr r C. (Lahore) 1861 Present: CH. MUHAMMAD NASEEM, J. MUHAMMAD ANWAR-Petitioner versus STATION HOUSE OFFICER, POLICE STATION BASTIMALUK, TEHSIL AND DISTRICT MULTAN and 3 others-Respondents Criminal Miscellaneous No. 310/H of 1995, heard on 9th October, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 4.91-Habeas corpus petition-Detenu on production making a statement before court that she was married to the respondent and wanted to accompany him and she was permitted to do so—Other detenus were neither required by the police in any criminal case nor their arrest had been shown in the Daily Diary and they were set at liberty accordingly. [P. 1863] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- 14 . [P. 1864] B & C Syed Athar Hassan Shah Bokhari, Advocate for Petitioner. Mr. Muhammad Iqbal Khan Khichi, A.A.G. for the State. Date of hearing: 9.10.1995. judgment One Fida Hussain made an application before Muhammad Bashir Sub-lnspector/S.H.O., Basti Malook District Multan wherein he expressed that he was married to a widow lady named as Mst. Waziran Mai daughter of Muhammad Anwar petitioner who was being detained illegally and improperly by her father and her brothers Falak Sher, Ramzan and Sultan sons of Muhammad Anwar residents of Chak No. 17/MR and for the purpose of fornication she has been sent to Jam Qadir Bakhsh in Mauza Sheikhupur. On that application the said S.H.O. directed in writing Muhammad Ayub Sub-Inspector for taking the legal action. 2. Muhammad Ayub Sub-Inspector entered the matter at Report No. 20, dated 11.6.1995 that he was going to Chak No. 17/MR alongwith constables for the recovery Mst. Waziran Mai detenu. He recovered Mst. Waziran Mai alongwith her minor son Zafar Hussain born from her husband Muhammad Akram since deceased. He brought Mst. Waziran Mai, Falak Sher and Zafar Hussain to Police Station Basti Malook and made the entry at Report No. 30, dated 11.6.1995. He produced Mst. Waziran Mai before the Ilaqa Magistrate on 12.6.1995 who recorded her statement wherein she expressed that she was married to Fida Hussain petitioner and wanted to accompany him. Thereafter she was taken to Police Station Basti Malook, Multan. 3. Muhammad Anwar petitioner made this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and under section 491, Cr.P.C. on 12.6.1995 for the recovery of his daughter Mst. Waziran Mai alongwith her minor son as well as Falak Sher and Abdul Razzaq. A bailiff was deputed. Mst. Waziran Mai alongwith her minor son as well as Falak Sher and Abdul Razzaq were found in the precincts of the Police Station Basti Malook who were recovered. They were produced before this Court on 14.6.1995 when the statement of Mst. Waziran Mai was recorded to the effect that she was married to Fida Hussain and she wanted to accompany him. On that it was ordered that she could accompany Fida Hussain according to her own desire. The plea of the police was that Falak Sher and Abdul Razzaq were neither required in any criminal case nor their arrest was shown in the Daily Diary. They were declared as the detenus and were set at liberty to go to a place of their own choice vide order, dated 14.6.1995. 4. Since Fida Hussain did not move the S.H.O., Police Station Basti Malook for the registration of any case and his desire through the making of the application was to get the person of Mst. Waziran Mai, my view is that it is a matter of alarming nature in view of the following legal aspects: - (i) According to section 100, Cr.P.C. if any Magistrate of the First Class or Sub-Divisional Magistrate has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant and after recovery of that person he shall be immediately taken before him (Magistrate), who shall make such order as in the circumstances of the case seen proper; (ii) Under section 552, Cr.P.C. upon complaint made to a District Magistrate on oath of the abduction or unlawful detention of a woman, or of a female child under the age of sixteen years for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary; (iii) Under section 491, Cr.P.C. the High Court has the power to issue direction of the nature of a habeas corpus for the release of a person illegally and improperly detained by any person including the police or public; (iv) Under Article 199(l)(b)(i) of the Constitution of our beloved country the High Court is competent to set at liberty a person who has been detained without lawful authority or in unlawful manner. 5. Without prejudice I am tempted to express that the Police Officers at the level of the police station/Thara have become fond of transgression of authority. It is an open secret that the police and the Magistracy are in league with each other. The initial application filed by Fida Hussain did not disclose the commission of any cognizable offence and therein no prosecution witness was mentioned. In this view of the matter it can safely he expressed that the Police Officer could not proceed on the application submitted by Fida Hussain in view of sections 100, 552, 491, Cr.P.C. and Article 199(l)(b)(i) of the Constitution of Islamic Republic of Pakistan, 1973. To examine the matter I summoned the Senior Superintendent of Police, Multan to appear alongwith the Law Officer. 6. On 1.10.1995 Mr. Mushtaq Ahmad Sukhera, Senior Superintendent of Police appeared alongwith Mr. Muhammad Iqbal Khichi, Assistant Advocate-General when the learned counsel for the petitioner, both the aforesaid Muhammad Bashir, Sub-Inspector and Muhammad Ayub, Sub-Inspector as well as Ghulam Haider, Inspector Legal and Bashir Ahmad, Inspector legal also appeared. Mr. Mushtaq Ahmad Sukhera, Senior Superintendent of Police scrupulously conceded that both the Police Officers had no power to proceed on the application filed before them and that the female could not be recovered. He was told that the people of the district are facing the problems due to working of his subordinates when he expressed that he would make every effort to enhance the prestige of his department and that he would issue the written directions and would also verbally direct the Police Officers in the meeting that for the recovery of the females from the house(s) of the parents and/or admitted husband they (subordinate Police Officers) shall not proceed in any case. Mr. Mushtaq Ahmad Sukhera, Senior Superintendent of Police, Multan has recently taken over after his transfer to Multan. 7. In view of the aforesaid aspect of the matter I could proceed against the Police Officers for the commission of the contempt of this Court as they have exercised the powers under section 491, Cr.P.C. and under Article 199(l)(b) (i) of the Constitution of Islamic Republic of Pakistan 1973. Muhammad Ayub, Sub-Inspector is a young law-graduate while Muhammad Bashir is a person of advanced age. They have submitted separate unconditional written apology where they have expressed that they have kids/children and put themselves at the mercy of this Court. They have expressed that each of them has been suspended y the Senior uperintendent of Police and have been transferred to the Police Lines, Multan. Forgiveness is a divine qualification and especially on the part of this Court. The respective written reply submitted by both the Police Officers is accepted who have been warned to be careful in future. If such an illegal act is committed by any of them in future and that comes to the notice of this Court, this matter shall also be opened so that they are properly dealt with. They have promised to be careful in future and they should remain careful keeping in view their own interest and future. This matter about the transgression of authority on the part of the police is disposed of. (M.A.A.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Quetta) 1865 [DB] Present: AMIR-UL-MULK MENGAL AND MlR MUHAMMAD NAWAZ MARRI, JJ. ZAHID ALI-Appellant versus Sheikh ABDUL HAMEED and another-Respondents Criminal Appeal No. 34 of 1995, decided on 4th October, 1995. (i) Interpretation of statutes­ '—Law cannot be said to have retrospective operation because it applies a new mode of procedure to suits commenced before its passing—If a statute deals merely with the procedure in action and does not affect the rights of the parties it will be held to apply, prima facie, to all actions pending as well as future-It is only if it be more than a mere matter of procedure, i.e., if it touches a right in existence at the passing of the new law, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the new law. [P. 1869] A (ii) Interpretation of statutes— —Retrospective operation-Presumption—Statutes are presumed to be appli­ cable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. [P. 1869] B (iii) Criminal Procedure Code, 1898 (V of 1898)- —S. 417-Penal Code (XLV of 1860), S. 302-Appeal against acquittal- Maintianbility of-Right of appeal against an order of acquittal had been conferred to any aggrieved person by means of amendment made in S. 417, Cr.P.C. vide Notification, dated 14.11.1994, where appeal against judgment, dated 14.2.1995 acquitting the accused had been filed by the brother of the deceased on 15.3.1995~Case of accused was at the trial stage at the time of the said amendment in law and neither the procedure of the trial had been changed nor any right of the accused had been infringed-Appeal filed by the deceased's brother against the acquittal of accused by Trial Court was consequently maintainable. [Pp. 1869 & 1870] C & E (iv) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 417(2-A)-Appeal against acquittal-Amendment in S. 417, Cr.P.C. by adding sub-section (2-A) had to take effect as regards cases which were pending trial so as to confer a right to any aggrieved person to prefer an appeal against acquittal in order to bring this section in conformity with Islamic Injunctions. [P. 1869] D (v) Pakistan Penal Code, 1860 (XLV of I860)- —S. 302-Testimony of relatives-Reqirements-Testimony of relatives if corroborated by circumstantial evidence or other pieces of evidence, cannot be thrown out of consideration on the sole ground of relationship. [P. 187 l']F (vi) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302 & 302(b)~Criminal Procedure Code (V of 1898), S. 417(2-A) Appeal against acquittal-Eye-witnesses had corroborated each other on all material points such as time of commission of offence, place of incident, sequence of events and the manner in which the offence had been committed and their testimony which was confidence inspiring, consistent, natural and convincing was corroborated by the incriminating recoveries and medical evidence—Minor contradictions in the statements of eye-witnesses in such circumstances were not material-Trial Court had not only erred in law in rejecting the said ocular evidence but it had done so on extraneous considerations and on flimsy and irrelevant grounds-Dying declaration made by deceased before his death was corroborated by the recovery of licensed shot-gun from the accused, statements of eye-witnesses and medical evidence-Motive for the occurrence had also been proved-Defence evidence could not cause any dent in the eye-witness account—Prosecution thus, had proved the charge to the hilt against the accused and the conclusions drawn by the trial Court were uncalled for and perverse-Trial Court's judgment acquitting the accused was consequently set aside and the accused was convicted under S. 302 (b), P.P.C. and sentenced to suffer imprisonment for life. [Pp. 1875, 1877, 1879, 1882, 1884, 1885 & 1886] G, H, I, K, L, M, N & 0 (vii) Pakistan Penal Code, 1860 (XLV of I860)-- —S. 302-Appreciation of evidence-Minor contradictions-Benefit of doubt, certainly, has to be given to the accused, but this does not entail that the Court should sit to highlight minor contradictions and to try to dislodge statement of a witness on mere technicalities. [P. 1879] J Mr. Noor Muhammad Achakzai, Advocate for Appellant. Mr. M. Wassay Tareen, Advocate for Respondent No. 1. Mr. Saleem Ansari, Advocate for the State. Date of hearing: 13.7.1995. judgment Amir-ul-Mulk Mengal, J.-This appeal is directed against the acquittal of Sheikh Abdul Hamid who was tried for an offence under section 302, P.P.C. by Sessions Judge, Quetta and was acquitted of the charge vide judgment, dated 14.2.1995. If put succinctly, the prosecution case is that on 1.2.1989 while Arshad Ali son of Kutab Khan took out his motor-cycle from his house to go to the city, the accused/respondent fired upon him with a shot-gun which hit him as a result whereof he was injured and removed to hospital. On examination following injuries were found on his person: - (i) Three gun shots entrance wounds circular with burned margins right lumber region at the level of mid axillary line. All three wounds are equal in size; (ii) Two gun shot entrance wound right side of chest 2" below and 1-1/2 medial to right nipple; (iii) One gun shot entrance wound right side of V.C. near scapular region (5th V Level). The injured was admitted in Male Surgical Unit. S.H.O. Sariab, Muhammad Akram S.I. was informed who came to Civil Hospital, Quetta after making entry in the Roznamcha (Exh. D/5-A). When he reached Civil Hospital, he found Arshad Ali injured and he prepared statement of injuries (Exh. P/7-C). He then left for place of occurrence. In the meanwhile a report was lodged by Sultana that her son has been injured by Sheikh Abdul Hameed. Muhammad Akram went to the house and arrested Sheikh Abdul Hameed, who came out of house alongwith a shot-gun. He also secured an empty-cock/pad from the place of occurrence. He took the accused to Sariab Police Station. Since the place of occurrence was outside of his territorial jurisdiction, therefore, he informed Tehsildar, Quetta about the incident and the fact, that the offence has been committed within his territorial jurisdiction. On receipt of telephonic information Akbar Ali Mirza, Tehsildar, Quetta directed Sardar Amir Jan, Naib-Tehsildar went to the police station and took the hand of accused from P.W. Muhammad Akram who also handed over him one shot-gun single barrel, 10 live cartridges, one licence and cock/pad which were taken into possession by P.W. Sardar Amir Jan vide recovery memo. Exh. P. 7/B. Naib-Tehsildar then proceeded to Civil Hospital where he found Arshad Ali admitted in the Casualty Ward. According to him the injured was conscious and in his senses and he recorded statement of injured which was produced as Exh. P.ll/A. In the statement so recorded the injured stated that he was 21 years old. He and accused were neighbours. Some times back father of injured was murdered by somebody and the injured remained in jail during investigation. He engaged Sheikh Abdul Hameed his counsel. The fee was fixed as Rs. 30,000 which was paid to Sheikh Abdul Hameed. But despite that, he made demand of an additional amount of Rs. 30,000. The injured further stated that Sheikh Abdul Hameed, Advocate has always been asking him to marry his sister but he refused to do so. Sheikh Abdul Hameed was aggrieved of this refusal and he always used to ask injured either to make payment of Rs. 30,000 or to marry his sister, failing which he would be killed. On the day of incident the injured was going towards city on his motor-cycle when accused came out from his house. He was armed with a shot-gun .12 bore and shouted at the injured to stop. Simultaneously, he opened fire. The injured received injuries and fell down. The accused made another attempt to reload his single-barrel shot-gun, but his attempt was thwarted by younger brother of injured namely, Zahid AH. According to him one of his neighbours Saifullah brought him to Civil Hospital in a Suzuki. Initially case was registered under section 307, P.P.C. and investigation started. The Naib-Tehsildar as Investigation Officer visited place of occurrence, prepared Exh. P. 8/A the site plan with the help of Abdul Latif, Patwari. He recorded statement of P.Ws. and during investigation the accused expressed that he would be giving 164, Cr.P.C. statement and was produced before City Magistrate and E.A.C.I, Quetta where he did not make any confessional statement and was remanded to judicial custody. It may be noted that the deceased succumbed to the injuries in the hospital and F.I.R. lodged under section 307, P.P.C. was altered into 302, P.P.C. After submission of challan the learned Sessions Judge, Quetta framed charge on 2.9.1989. The accused did not plead guilty to the charge and claimed trial. In order to substantiate the charge prosecution examined P.W. 1 Mirza Akbar Ali, Tehsildar, P.W. 2 Amjad, P.W. 3 Anwar Sultana, P.W. 4 Zahid Ali, P. W. 5 Muhammad Rahi, P.W. 6 Dr. Abdul Sattar, P.W. 7 Muhammad Akram, P.W. 8 Abdul Latif, P.W. 9 Faizullah, P.W. 10 Akhtar Khattak and P.W. 11 Sardar Amir Jan, Investigating Officer. The accused examined in defence D.W. 1 Atiq-ur-Rehman, D.W. 2 Arbab Lai Muhammad, D.W. 3 Amin Mengal, D.W. 4 Sadiq Ali, D.W. 5 Bashir Ahmed, D.W. 6 Sarfraz Khan, D.W. 7 Muhammad Aslam, D.W. 8 Raza Muhammad, D.W. 9 Qadir Bakhsh, D.W. 10 Pira Khan, D.W. 11 Muhammad Saleem, D.W. 12 Abdul Rehman and D.W. 13 Humayun. The accused was also examined under section 342 Cr.P.C. Besides, one Haji Abdullah was examined as Court-witness. The prosecution case hinges on ocular testimony of 4 eye-witnesses namely, Zahid Ali, Anwar Sultana, Muhammad Rahim Baloch and Amjad, recovery of shot-gun, live cartridges and cock/pad of used cartridge as well as dying declaration. Before proceeding further, it would be expedient to determine the question regarding maintainability of acquittal appeal filed by the complainant, who is the real brother of deceased. According to appellant section 2(a) was added/inserted in section 417, Cr.P.C. vide Notification, dated 14.11.1994. This appeal has been filed in March, 1995. Subsection 2(a) of section 417, Cr.P.C. reads as under:- "Sub-section 2(a) of section 417, Cr.P.C.--A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may within thirty days, file an appeal against such order." Thus, after amendment in section 417, Cr.P.C. the Legislature conferred a right of appeal on a person aggrieved by the order of acquittal passed by any Court other than a High Court. The argument advanced was that when the case was pending trial no such right was available to the complainant or a person aggrieved by the order of acquittal. Since the appeal is continuation of proceedings, therefore, any change even in filing an appeal is to be governed by the old procedure because the amendment has no retrospective effect. Reliance has been placed on PLD 1965 SC 681. From perusal of the said judgment it appears that the Supreme Court held that a Statute cannot be said to have retrospective operation because it applies a new mode of procedure to suits commenced before its passing. In other words if a Statute deals merely with the procedure in action and does not affect the rights of the parties it will be held to apply, prima facie, to all actions, pending as well as future. It is only if it be more than a mere matter of procedure, i.e., if it touches a right 11 existence at the passing of the new Act that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of a new Act. Similarly our attention was drawn to PLD 1969 SC 599 wherein an observation was made that Statutes are presumed to be applicable to cases and facts coming into existence after their enactment unless there be clear intention to give them retrospective effect. Similarly learned counsel placed other authorities to the same effect and contended that present appeal has been filed by brother of the deceased and not by the State, therefore, the same is not maintainable because prior to the amendment only Provincial Government could file such an appeal. We respectfully follow the dictum of the Supreme Court. But the only question is whether the ratio decidendi applies to the facts of the present case. Here the right of appeal against an order of acquittal has been conferred to any aggrieved person and this amendment has been made in law vide Notification, dated 14.11.1994; whereas present appeal has been filed on 15.3.1995 against the judgment passed on 14.2.1995. Amendment has been made in order to commensurate the law with the Shariah which gives such a right to an aggrieved party. Secondly when this amendment was brought in law the case of the accused was at the trial stage and no procedure of trial has been changed nor any right of present accused has been infringed. Even if this amendment is held to have affect prespectively, the present appeal is covered by it. None of the rights of the accused has been taken away by this amendment, but the Legislature thought it expedient to confer a right on a person aggrieved by acquittal in order to broaden the scope because sometimes due to inadvertence or red-tapsim the Provincial Government did not prefer appeal against acquittal. The intention of the Legislature is very much clear that this law has to take effect as regards cases which were pending trial so as to confer a right to any aggrieved person (the brother of deceased in present case) to prefer an appeal against acquittal in order to bring this section in conformity with Islamic Injunctions. After conscious consideration, we are of the view that accused plea has no force for the following reasons:- (i) The intention of the Legislature is manifest and clear that form the date of promulgation of this amendment a right of appeal has been given to a person aggrieved by any order of acquittal; (ii) this has been done in order to bring law in conformity with Islamic Injunctions; (iii) even otherwise it has been observed by the Supreme Court quoting Maxwell PLD 1965 SC 681 that where the Legislature has made its intention clear that the amending Act should have a retrospective operation, there is no doubt that it must be so construed even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law if the new law manifests such a necessary intendment. With regard to procedural laws, says Maxwell at p. 217 of his Book the general principle seems to be that alterations in procedure are retrospective unless there be some good reason against such a view; (iv) no right of accused has been impaired or infringed by this amendment. A right of appeal against acquittal was already there under section 417, Cr.P.C. and it has only been extended to a person aggrieved in addition to the Provincial Government which, in our opinion, has not impaired the right of any of the parties; (v) the accused cannot challenge the right given to an aggrieved person, of appeal, against acquittal when the matter was not mature for filing of appeal when the amendment was brought. In fact, we do not find any force in the arguments because when this amendment was brought question of filing of appeal had not arisen as the matter was at the trial stage. For all such reasons we hold that the argument of the accused is devoid of any force and present appeal has rightly been filed under sub-section (2-A) of section 417, Cr.P.C., which is maintainable to be decided on its own merits. Attending now to the merits of the case we proceed to assess and sift the testimony of the eye-witnesses. It may be pointed out that out of 4 eye­ witnesses, 2 are the brothers of deceased and one is the mother of the deceased. However, P.W. 5 Muhammad Rahim is an independent witness who belongs to none of the parties. P.W. 2 Amjad said that on the day of incident he alongwith his brother Arshad Ali (deceased), Zahid Ali and mother were present in their house and taking morning tea. His brother left the house for office on motor­ cycle. His mother and brother Zahid Ali went to close the door. He heard a fire-arm report and thought that perhaps his brother's motor-cycle has been punctured. His mother and brother Zahid went outside the house. He also came out of the house and saw that his brother was lying in injured condition. In the meanwhile his brother Zahid Ali and accused present in the Court respondent were grappling with each other and accused was loading cartridge in the gun. His mother asked him to immediately call Saifullah who was their neighbour. He called Saifullah and his mother requested Saifullah to bring his Suzuki. Then his injured brother was removed to hospital in the Suzuki. In cross-examination, however, certain contradictions were pointed out. It is pertinent to note that in cross-examination, on a suggestion as to who was the independent witness, reaching the place of occurrence, the witness replied it was Muhammad Rahim. P.W. 2 Mst. Anwar Sultana is the mother of deceased Arshad Ali. She stated that her son Arshad Ali was going to Rehman Hospital for duty where he was taking course of Nursing Orderly. It was at about 9.00 a.m. the accused committed murder of her son by means of a gun. According to her she took out the legs of her son out of the motor-cycle. In the meanwhile her son Zahid tried to snatch gun from the accused. The accused threw his gun towards the house of his sister. She sent her son to call Saifullah and sent message to fetch Suzuki Maskeen. She also mentioned presence of P.W. Rahim who reached the spot. They took the injured son to hospital where he died at 10.00 a.m. As to motive, she stated that the motive of the incident was that the sister of accused wanted to marry her son, but she and her son did not agree. Secondly, the accused was a greedy person and he also wanted to marry her. The accused in presence of P.W. Akhtar Khattak and Saifullah threatened that in case of refusal of his demands he would kill her son. P.W. 4 Zahid Ali the brother of deceased is a student. He deposed that on the day of incident, which took place on 1.2.1989 at 9.00 a.m. his brother Arshad Ali went out of the house. He was alongwith his mother and brother. He saw Sheikh Abdul Hameed who was sitting on the back side of the wall of his house. The height of the wall was between 3/4 feet. Sheikh Abdul Hameed fired upon Arshad Ali by a shot-gun. Arshad Ali fell down, and accused came out in the open plot. The witness ran towards the accused s he was reloading his shot-gun. In the meanwhile sister of the accused came out of her house. The gun was given to Mst. Bashira, the sister of the accused, by the accused who went in her house. His mother asked Amjad Ali to call for Saifullah who was their neighbour. Saifullah went to Dairy Farm of Miskin for having some conveyance. Miskin came with Suzuki and Saifullah and another person namely, Muhammad Rahim. Arshad Ali was taken to hospital in the Suzuki driven by Miskin, while they were in the hospital. Naib-Tehsildar asked them to visit his office for recording of their statements. His brother expired and according to him Sheikh Abdul Hameed killed his brother. The last eye-witness was Muhammad Rahim who used to live in Killi Jeo Jadeed. He did not know the parties. His house was at a distance of about 2 furlongs from the house of the deceased. He used to go to town on bicycle. He saw deceased came out of his house. He started his motor-cycle and in the meanwhile he heard a gun shot fire. He saw deceased fell down. He also saw the accused came in Medani (open place) and was having a shot­ gun in his hand. Accused attempted to make another fire but meanwhile 2 boys came out from the house, one of them caught hold of the accused and the other went to the house of Saifullah. He saw all this from the road. He also saw the injured in the lap of his mother. Saifullah shouted that his neighbour has been killed by Wakil Sahib. He alongwith Saifullah and another boy went to the house of Miskin in order to fetch some vehicle. .. When they reached back mother of deceased was shouting that his son was killed by a Punjabi Wakil who was their neighbour. The injured was taken to Casualty where his X-ray was taken. The witness then left for his duty. Besides, the above ocular version another important piece of evidence is dying declaration of the deceased. After being fired upon and injured, he was taken to the hospital. When police informed Tehsildar Quetta that offence has been committed within his jurisdiction, Naib- Tehsildar P.W. 11 Sardar Amir Jan was assigned investigation of the case who visited the hospital and found the injured in his senses. He recorded his statement in which injured stated that sometimes before his father had been killed and he was put in jail during investigation. He engaged Sheikh Abdul Hameed as his Advocate who was paid a fee of Rs. 30,000. Despite that Sheikh Abdul Hameed made a demand of Rs. 30,000 more, Sheikh Abdul Hameed has a sister and he always used to ask him to marry his sister, but the injured refused. Sheikh Abdul Hameed used to extend threats to make payment of Rs. 30,000 and to marry his sister otherwise he would be killed. On the eventful day at 9.30 a.m. when he was coming out of his house the accused came out of his house with a shot-gun in his hand and asked him to stop. Simultaneously he fired upon him as a result of which he received injuries and fell down. He wanted to make another fire but his brother reached and grappled with him. His mother and brothers were present. His neighbour Saifullah took him in his suzuki in the hospital. Recovery of a shot-gun and cock/pad were made by S.H.O. and handed over to Naib-Tehsildar after when he found that the place of occurrence falls outside his territorial jurisdiction. Apart from above evidence there is another corroboration by P.W. 6 Dr. Abdul Sattar Baloch who examined the dead body of Arshad Ali. According to his statement the probable cause of death of Arshad Ali was due to injuries on vital organ, i.e. heart, excessive haemorrhage, shock and death. Wounds were of gun-shot. P.W. 7 was Muhammad Akram Sub- Inspector. According to him on 1-2-1989 he was posted as S.I. Police Station Sariab Quetta. He was informed by a duty doctor that a shot-gun case of my area has been lodged. He proceeded to hospital and found Arshad Ah' lying injured in the hospital. He prepared injury memo. He found that occurrence did not fall within his territorial jurisdiction. However, Mst. Anwar Sultana (mother of deceased) has lodged a report that her son has been injured by Sheikh Abdul Hameed. He went to the house of accused and called him. Accused came out alongwith shot-gun. He collected one empty cock/pad and brought the accused alongwith shot-gun to Police Station Sarib. Amir Jan Naib-Tehsildar came to police station and this witness handed over Sheikh Abdul Hameed, shot-gun, 10 live cartridges and the cock/pad to Naib-Tehsildar. The shot-gun had licence which was also given to Amir Jan, Investigating Officer. He had made a report in Roznamcha which he produced as Exh. P. 7-A and he identified his signatures thereon. He prepared recovery memo. Exh. P. 7/B and identified his signatures thereon. He also identified accused present in the Court. In cross-examination he stated that the cock/pad was found in front of the house of Abdul Hameed in Medani (open place). P.W. 8 Abdul Latif prepared site plan and produced it as Exh. P. 8/A. P.W. 7 Faizullah is a levy Constable who accompanied Naib- Tehsildar to police station and he was witness to Exh. P. 7/B, Article P. 1 etc. P.W. 10 Akhtar Khattak was known to Arshad Ali deceased and had family relations. He has given details of the family background of Arshad Ali deceased. According to him one day Sheikh Abdul Hameed (accused) visited his house. There was a dispute of some money transaction and Sheikh Abdul Hameed claimed an amount of Rs. 30,000 as fee or in lieu thereof mother of Arshad Ali should marry him. He further stated that Sheikh Abdul Hameed said that if it was not accepted, he would kill Arshad Ali. The other day he went to inform Arshad Ali and his mother advising them to file an application in the Court of Assistant Commissioner for obtaining peace securities. However, they did not agree to his suggestion. After when he heard that Arshad Ali has been injured, he went to the hospital. He found him in his senses, who disclosed about the incident and the fact that Sheikh Abdul Hameed had injured him with a shot-gun. On the next day he sought permission from Assistant Commissioner for taking the deceased without having post-mortem and he produced permission as Exh. P. 10/A. Sardar Amir Jan Somalani P.W. 11 investigated the matter. When Sariab Police informed Tehsildar about the incident, Tehsildar assigned him the duty of investigation. He received the hand of Sheikh Abdul Hameed and also a Russian made shot-gun, single barrel alongwith 10 live cartridges and a licence in the name of Sheikh Abdul Hameed and an empty cock/pad and prepared Fard Exh. P. 7/B. He identified his signatures on the same. He prepared parcel of the shot-gun and cock etc. as well as of cartridges. He took the accused to Levies Headquarter, Quetta and started investigation. Accused admitted that he has fired upon Arshad Ali. The Investigating Officer then left for hospital. He saw Arshad Ali was admitted in Casualty Ward and was in his full senses. He saw mother of the deceased as well as Saifuddin and Akhtar Khattak present there. He recorded the dying declaration Exh. P, 11/A was made the basis of F.I.R. and case was registered under section 307, P.P.C. He then proceeded to the spot, recorded statements etc. In the meanwhile accused was produced before Tehsildar as he expressed that the would be making a confessional statement. He was taken to the Court of E.A.C.-I/City Magistrate, Quetta but Sheikh Abdul Hameed was not willing to give any confessional statement, therefore, he was sent to judicial custody. When he came to know that Arshad Ali has expired, he went to the hospital and confirmed his death. The case was converted from 307 to 302, P.P.C. As against this prosecution evidence accused produced P.W. 1. Atiqur-Rehman, who stated that although he married Mst. Anwar Sultana in December but later on divorced her and no child was born out of the wedlock. D.W.2. Arbab Lai Muhammad produced Ex. D. 2/A a mutation entry of some property in favour of Mst. Anwar Sultana. D.W. 3 Dr. Amin Mengal was produced in order to prove that Mst. Anwar Sultana had been admitted for treatment of poisoning. D.W. 4 Sadiq Ali brought copy of an order alongwith record Exh. D. 4/AA. D.W. 5 Bashir Ahmed produced Exh. D. 5/AA. D.W. 6 Sarfraz Khan was Special Prosecutor in a case tried by Special Military Court where Sheikh Abdul Hameed was a defence counsel f Arshad Ali deceased and his mother. D.W. 7 Muhammad Aslam produced Exh. D. 7/A. D.W. 9 Qadir Bakhsh tried to prove that Akhtar Khattak has remained in jail in connection with murder of deceased's father. D.W. 10 also deposed to the same effect. D.W. 11 Muhammad Saleem, Head Moharrar in Civil Lines Police Station deposed about the previous murder of the father of Arshad Ali and arrested and recorded statement of accused persons in the former case. D.W. 12 Abdul Rehman produced record of some decided cases filed by Arshad Ali for succession etc. as well as statement of Mst. Anwar Sultana before Senior Civil Judge and D.W. 13 Humayun stated nothing in respect of present case. After reproducing the gist of evidence of prosecution as well as of defence, it is proper time now to sift and reassess the evidence. As stated hereinabove, the prosecution produced 4 eye-witnesses who gave the ocular version. P.W. Anwar Sultana is the mother and P.W. Zahid and P.W. Amjad are brothers of the deceased Arshad Ali. The defence, therefore, mainly criticised their testimony firstly on the ground of relationship with the deceased contending that being interested witness their testimony should not be readily believed. In the first instance it may be observed that facts of each criminal case differ, therefore, it is to be seen in the context of entire evidence brought on record. Mere relationship per se does not render the evidence of such witness as inadmissible or untrustworthy, unless of course it is proved that the statements made by them were out of vengeance or some personal interest or ill-will. Apart from this while appraising evidence, the Court has to take into consideration the cumulative effect of all other evidence and to adjudge the truthfulness or otherwise of such piece of evidence. In the instant case, the prosecution version is that after taking morning tea, Arshad Ali after taking his motor-cycle set out to his duty and soon after the inmates of the house heard gun shot report. According to site plan the house of the accused is just near the house of the deceased, therefore, the inmates of the house in the natural course of events are the best witnesses of the incident. It is, therefore, wrong to conclude that their testimony be excluded from consideration simply for the reason that they were relatives of the deceased. It is now a settled rule of law that if the testimony of relatives is corroborated from circumstantial evidence or other pieces of evidence then their testimony cannot be thrown out of consideration on the sole ground of relationship. Reliance may be placed on 1994 SCMR 1 where the Honourable Supreme Court observed, after surveying the law on the point, as under: - "An interested witness is one who has a motive for falsely implicating an accused, is a partisan and is involved in the matter against the accused. Friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of even an interested witness are set out in Nazir v. The State PLD 1962 SC 269. In the present case. P.W. 10 is not an interested witness as nothing has been brought on record to show that he had motive for falsely implicating the appellants or was personally involved in any act of enmity between the parties. In Khalil Ahmed v. The State 1976 SCMR 161 the testimony of deceased's son aged 15 years was accepted as he was not personally involved in any act of enmity and his statement was consistent, corroborated by the presence of injuries on his person, human blood-stained articles recovered from the accused and supported by two other witnesses." It is not a case of defence that P.W. Zahid, P.W. Anwar Sultana and P.W. Amjad were residing with deceased Arshad All in the house in front of or in the vicinity of which the incident took place. Thus, they were not chance witnesses. We are not impressed by the arguments of respondent's counsel that the evidence of these witnesses should be outrightiy rejected on the ground of relationship. We would be discussing at proper stage of the judgment how ocular version is corroborated form circumstantial evidence, but at present we deal with the second objection as agitated by the respondent's counsel. The next objection was that there are material contradictions in the statements of these 3 eye-witnesses. While elaborating such contradictions, it was argued that these witnesses are not consistent as to who came, out from the house first after hearing the gun-shot. We are really not impressed by this argument for many reasons. The most important reason being that the accused who is an Advocate by profession made successive attempts to prolong the cross-examination of witnesses and very lengthy crossexamination was done in order to bring some omissions on record or some petty contradictions from here or there. From perusal of record it is revealed that P.W. 1 was examined, on 10.9.1989, his cross-examination was postponed on the request of accused. However, he was recalled and recross-examined on 11.12.1989 and he was again called for cross-examination which concluded on 28.6.199C. Thus, it almost took more than 3 years to conclude cross-examination of this witness. Similarly P.W. 2 Amjad, a boy of tender age, was examined on 5.5.1990 but his cross-examination was done on 20.4.1991. He was again recalled on 31.10.1991 when his cross-examination was concluded. Likewise P.W. 1 Anwar Sultana recorded her examination-in-chief on 2.6.1991 and her crossexamination was concluded on 30.10.1991. In such state of affairs, minor contradictions in the statement of eye­ witness shall not be material, particularly so when such testimony is otherwise fully corroborated by independent witnesses as well as circumstantial evidence. In this respect reliance may be made to the observations made by Honourable Supreme Court in case titled Sher Muhammad and others v. The State Criminal Appeal No. 268 of 1991. In para. 18 of the said judgment it was observed:- "Article 140 of the Qanun-e-Shahadat envisages that a witness may be contradicted with his previous statement. There is no cavil on the proposition. The question is whether certain facts which had been brought on the record by the defence himself through cross-examination could be equated with a previous statement. A bare reading of the above said two sections of the Criminal Procedure Code and Qanun-e- Shahadat will say no. It is not all, besides, the contradictions pointed out being of minor nature would not affect the material evidence of eye-witnesses." Besides, the accused has made all efforts to prolong the case by making vexatious applications to High Court almost on each and every hearing which is reflected from the record and even from observations made by the trial Judge. In this connection first observation would be sufficient to be reproduced. "Demeanour of the accused is hostile towards the Court The case is referred to the Honourable High Court. Cross closed." Not only that, but the accused while cross-examining the mother of deceased tried to provoke her by putting obscene and scandalous questions as for instance:- (1) You cut down your lip of vagina which was stitched? (2) Your naked photographs are with Lai Muhammad Kakar ofKuchalk? Now testing the ocular testimony we have found that these eye-witnesses have corroborated each other on all material points such as time of commission of the offence, the place of incident, the manner in which incident took place, the accused being found armed with a shot-gun. In the circumstances minor contradictions as to who came out from the house first would be hardly material in the circumstances of the case. As far as sequence of events and the manner in which offence was committed, the testimony of these eye-witnesses is confidence inspiring, consistent, natural and convincing. Not only that the eye-witnesses have spoken the truth, but such truth comes out from the circumstantial evidence of recovery of a Russian Shot Gun licensed in the name of accused, recovery of cock/pad of the cartridge used, from the place of incident. It will not be out of place here to mention the reasons upon which the learned trial Court did not rely on the statement of Anwar Sultana following contradictions were highlighted:- My deceased son had told me that it was 9.30 a.m. when he was going on duty. Nobody told me to state timings of 9.00 a.m. I was mentally upset therefore, some times I stated 9.00 a.m. and some times 9.30 a.m. Zahid told me that there were many cartridges in your pocket. I do not remember what was the colour of your clothes of the time of incident. The accused was wearing Kamiz and Shalwar at that time. I stated to Tehsildar that told my second son to call Saifullah to fetch Suzuki of Maskeen (confronted not so record). (Confronted my son Arshad Ali was seriously injured, my neighbourer Saifullah under semi-consciousness took him to hospital in a Suzuki. I stated to Tehsildar that sister of accused told me and my son to marry (confronted not so recorded). The sister of the accused told that to marry my deceased's son to the sister of the accused. I stated so to Tehsildar (confronted not so record) your sister id not say to deceased for marry. You did not say to me for marriage. I did not say to Tehsildar that you directly compelled me to marry. I and my son Zahid went to Tehsildar to give statement ' It is correct that Akhtar Iqbal Khattak was also accompanied with us at that time. You never directly teased me. It is correct that I stated before the Court that I have no trust with Arshad. There is a distance of 2,000 feet between my house and that of the accused. I cannot say how much was the distance between accused and that of my deceased son. I cannot say whether the distance of 2,000 feet, more than that or less than. I alongwith my son Amjad and Maskeen accompanied the injured to hospital. Saifullah was also accompanying us. Aklitar Khattak did not accompany me to Tehsil Office. A case was registered against me for murdering of my husband. It is correct that Arshad and my brother was also accused in the said murder case. It is not correct that subsequently I married with Iteeq-ur- Rehman. After the death of my son I got the house transferred in my name as I intended to sell the said house. It is correct that a suit for the recovery of fee was filed by the accused in the Court of Senior Civil Judge, Quetta. It is incorrect that my deceased son had given a statement under section 164, Cr.P.C. that I murdered his father and my husband. Similarly that statement of P.W. Amjad has been rejected for contradictions in the statements which he gave before the Tehsildar. Although Tehsildar has not recorded his statement, but it was Naib-Tehsildar who recorded his statement. It may be mentioned here that learned trial Court not only erred in law to reject a consistent statement on all material points of the 3 eye­ witnesses but he has done so on extraneous considerations on flimsy and irrelevant grounds. We are conscious of the fact that in criminal justice benefit of doubt, if any, shall be given to the accused, but this does not entail that the Court should sit to highlight minor contradictions and to try to dislodge statement of a witness on mere technicalities. Adverting now to the testimony of P.W. 5 who is related to none of the parties it may be observed that he gave a very honest statement before the Court. P.W. 5 deposed that he is resident of Killi Jeo Jadeed. He lives in the same vicinity about 2 furlongs from the house of deceased. According to him incident occurred on 1.2.1989 at 9.00 a.m. He came out of his house on bicycle and reached the main road. He saw deceased came out from the house and when he attempted to ride on his motorcycle he heard a gun-shot fire. He clearly saw deceased fell down. He also saw the accused came in Maidan (open place) having a gun in his hand. After 2/3 minutes accused attempted to make another fire but in the meanwhile 2 boys came out of the house of deceased and one of them caught hold of accused and the other went to the house of Saifullah. He saw the injured in the lap of his mother. Saifullah shouted that his neighbour was killed by accused Wakil Sahib. Saifullah asked him to bring a vehicle to pick the injured. He alongwith Saifullah went to the house of Maskeen and reached the place of occurrence where mother of deceased was shouting that his son was killed by Panjabi Wakil who was their neighbour. The injured was brought to hospital alongwith his mother, Maskeen and Saifullah. In cross-examination he made it clear that the deceased fell down and simultaneously boys came out of the house. His mother also came out at the same time. This independent witness fully corroborates the other ocular testimony. He corroborates the place of incident, the time of incident. He saw the accused with shot gun coming to Maidan. He saw the injured fell down. He also saw the boys coming out of the house of P.W. Zahid grappling with accused. Thus, to no stretch of imagination, it can be inferred that this eye-witness is either interested or a chance witness. He is resident of the locality and was going to his duty. He saw the incident. It is indeed strange that learned trial Court also did not rely on this independent eye-witness on flimsy grounds and drew conclusions which are not only incorrect but are perverse on the face of it. As for instance the first reason why the statement of this witness was not relied is given as under by the trial Court- Strange enough that he is stranger and the parties were not known to him but P.W. 6 Dr. Abdul Sattar disclosed the name of P.W. 5 Muhammad Rahim who brought the injured to Civil Hospital." The learned Judge lost sight of the fact that P.W. 6 Dr. Abdul Sattar who was on duty in Casualty should ask the name of the person who brought the injured and the witness must have told him his name. No cross-examination was done on this point by the defence. Thus, this was not at all a ground to discredit the statement of an eye-witness. Secondly the ground prevailing with the trial Judge was that there are chain of authorities that delayed examination of witness by Investigating Officer was not believed. We do not know from where the learned Judge has concluded because in crossexamination he stated that the Naib-Tehsildar recorded his statement only after 3 days. In the peculiar circumstances of the case when the information was firstly given to police and then handed over to Tehsildar or Naib-Tehsildar, this much delay does not render statement of this witness and particularly so when the accused died and the Naib-Tehsildar was busy in all other formalities. From the above discussion we unhesitatingly hold that the prosecution, through ocular testimony successfully brought home the charge against the accused. However, it was argued by respondent/accused that the ocular version is contradicted by medical testimony, therefore, it should be altogether ignored. Reliance was placed on the following authorities: - (i) 1978 PCrJLJ 670, (ii) PLD 1993 Kar. 347, (iii) PLD 1988 Kar. 521. Astonishingly, the learned trial Judge while elaborating this argument has gone astray because he indulged in elaborating difference between shot-gun and gun-shot in very detail which were not required at all. We failed to reconcile ourselves that there was at all any contradiction in the medical testimony and ocular version. In cross-examination P.W. 6 Dr. Abdul Sattar stated that the injuries mentioned at Serial Nos. 2 and 3 are quite opposite. Furthermore, these two injuries are by two different shots. Thus, statement of the doctor has been given a wrong interpretation by the trial Court and undue importance has been given to this contradiction. We have already reproduced 3 injuries received by the deceased. In fact injury No. 1 and injury No. 3 both are on backside. So also injury No. 1 is on scapula, i.e. flat triangular bone in the back of the shoulder; whereas injury No. 3 was gun shot entrance wound on lumbar region at the level of mid axillary line, i,e. the part of the back between thorax and pelvis and injury No. 2 on right side of chest medial of two right nipple, i.e. pertaining to the middle line of the body or structure. Although in the first glance, it appears that fires were made from two different directions but from close scrutiny it becomes clear that all the wounds were as a result of one fire of a shot-gun with several pellets. If we read the statement of the injured and statement of P.W. 5 this dilemma would be resolved. He stated as under:- Similarly P.W. 5 Muhammad Rahim stated as under:- It is thus clear that the deceased was fired upon by the accused when he was on his motor-cycle. At the same time the accused had loudly asked him to stop and he simultaneously fired with a shot-gun. It is known to us all that the cartridge of shot gun had many pellets. The deceased must have responded to the call and received all the pellets on right side of his body, even on the right nipple when he must have fully turned, therefore, this dilemma of one wound on the right nipple, that too on the right side, does not suggest that firing was made on him from two sides. Even otherwise in the circumstances of the case and evidence brought on record the presumption that accused must have been fired from two directions is hypothetical and baseless. The consequence of the wounds suggests that injury No. 3 was caused and then injury No. 1 and when he instantaneously turned to see the accused, he received injury on the chest. As to the size of shot doctor is not the expert. He could depose only about injuries and not size of shots. Injuries may differ in size of the same shot if the angle is changed. Furthermore, no shots were taken into possession or taken out of body of the deceased, therefore, to say that those differ in size is a hypothesis without any basis. Besides, in case of Saeedullah Kkan v. The State reported in 1986 SCMR 1023 the Honourable Supreme Court observed on page 1031 as unden- "After considering the evidence on the record we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed. So far as Mueen Badshah is concerned, his presence at the scene of occurrence is corroborated by the fact that he was also injured with the fire weapon and it is difficult to hold that he was not present at the scene of occurrence. In the circumstances of this case when he was being killed by the successive shots which were being fired at him, it is not expected from him to describe with exactitude the details of the manner in which the deceased was injured, however, his testimony that it was the accused who fired at the deceased cannot be rejected on that account. Similarly the complainant whose close relation was being attempted to be murdered in his presence, must be looking at the lawful scene enacted in his presence with great amount of tension and confusion about the fate of the victim. Having regard to these circumstances the contradiction in the F.I.R. and the police version with the evidence in Court seems to pale into insignificance. As observed by the High Court, in the extract reproduced above, there can be any doubt about the presence of these witnesses at the time of occurrence and their testimony fully implicates the appellant." | Keeping the ratio decidendi of the above case we are of the opinion that the K[ medical evidence does not contradict the ocular version and we cannot reject | the ocular version on this ground, alone. Another important piece of evidence is the dying declaration. It has come on record through testimony of P.W. 3 and P.W. 5 that the injured was shifted to hospital in the Suzuki of Maskeen. The doctor P.W. 6 informed the police as it was a lego-medical case. The Sub-Inspector, Sariab Police Station reached hospital and then proceeded to inspect the scene of occurrence. He arrested the accused alongwith the gun and obtained cock/pad but found that the place of occurrence was outside his territorial jurisdiction and was in the jurisdiction of Tehsildar, Quetta. He, therefore, informed the Tehsildar, Quetta who assigned investigation to Naib-Tehsildar. He came to the hospital and recorded statement of the injured. The injured stated that accused and they are neighbours. He was arrested in case of murder of his father and while in jail, he engaged Sheikh Abdul Hameed. Sheikh Abdul Hameed was paid a sum of Rs. 30,000 as fee, but despite that he always used to demand for payment of Rs. 30,000 more. Furthermore, he asked him to marry his sister, on refusal he used to extend threats to him. On 1.2.1989 in the morning at about 9.30 a.m. when he came out of his house and when he was on motor-cycle, the accused came out of his house and was having a shot-gun in his hand and asked him to stop. Simultaneously, he fired as a result of which the injured received injuries. He made an attempt to reload his gun but his younger brother Zahid grappled with him. His mother also was present there and their neighbour Saifullah brought his Suzuki and he was shifted to hospital. The dying declaration was challenged by the accused on the ground that it has been recorded in presence of the mother and brother and there is every likelihood that they have tutored the injured against the accused. Reliance was placed on PLD 1970 SC 13. We have perused the judgment written by Mr. Justice Sajjad Ahmed Jan (as he then was) and while discussing section 32 of Evidence Act read with section 302, P.P.C. following observations were made in respect of dying declaration:- "The dying declaration of the deceased have a degree of sanctity under the law, being the statement of a dying man, on the belief that he being placed in a situation of immediate apprehension of severance of his ties with the mundane affairs, he would not tell a lie and implicate innocent persons on false charges. But, in the matter of the administration of criminal justice, taking in view the present state of our society, the assessment of evidence, whether it is the statement of a witness or the statement of a person who is dead, is essentially an exercise of human judgment to evaluate the evidence so as to find out what is true and what is false therein. In this effort, the case has to be considered in all its physical environments and circumstances to find out how far the evidence or its different parts fit in with the circumstances and possibilities that can be safely deduced in the case. In this country, the habit, unfortunately, is quite common, now judicially recognized, that people do add innocent persons alongwith the guilty to satisfy their sense of revenge and to put the other side to the utmost grief. It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted, as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age old habits and deep rooted rancours and enmities." Another case relied upon was 1994 SCMR 1852. In this case the Honourable Supreme Court has observed that for proper evaluation of the dying declaration the surrounding circumstances in which the same were made and the contents thereof have to be kept in view. However, a specific observation was made on page 1855 which may be beneficial for our purpose:- "To impart veracity to a dying declaration, it is necessary that the declarant should be free from external influence and not crowded around by unauthorized persons while making the statement. The doctor admits that 5 or 6 persons were sitting around the deceased when she made the declaration. The record before us does not indicate that necessary steps were taken that no influence was brought about on the deceased." In the instant case when Naib-Tehsildar went to the hospital to record statement of the injured at that time his mother Anwar Sultana and another person namely Saifullah as well as Akhtar Khattak were present The question arises whether steps were taken that no influence was brought about on the deceased while steps were taken that no infulence was brought about on the deceased while giving statement. It may be noted that when the injured received gun shot injures, his mother took him into her lap and obviously she could not leave the company of her son who was injured. P.W. Saifullah's presence is a natural because he was the neighbour who arranged for a vehicle to shift the injured to hospital. However, as far as Akhtar Khattak is concerned he is a Police Officer having family relations with the deceased party. He had no motive to influence the injured or to wrongly implicate the present accused. The dying declaration finds corroboration from the recovery of shot gun licence in the name of the accused, the statements of the eye-witnesses and medical evidence that the deceased was fired at with a shot gun. There was no suggestion put to the doctor that the accused was not in his senses, when his statement was recorded. P.W. 5 Rahim Baloch testified about the incident and his statement also corroborates the dying declaration. Although in law no bar has been imposed to the manner in which a dying declaration is recorded nor there is any provision suggesting that the same would be inadmissible in evidence if the declaration is made in presence of relations or other persons present. But the superior Courts and the Honourable Supreme Court have laid down certain principles in order to minimise any chances of padding or false implication of an innocent person. However, facts of each case differ and it is for the Courts to take into consideration the attending circumstances and to draw conclusions from the evidence so brought on record. Thus, we find no reason to disbelieve dying declaration in the circumstances of the case. The recovery of shot gun has not been seriously challenged because it was the accused himself who at the time of arrest produced it before. P.W. 7 Akram S.I. Sariab Police Station. Not only he produced gun but also the licence. However, an argument was raised that this gun, alongwith licence, were recovered during search of the house of accused. No evidence was produced that police has ever made any search of the accused's house. The case of the prosecution, on the contrary, is that when S.I. Akram went to the place of occurrence, he called for the accused who came out alongwith his shot gun as well as licence. Prosecution version is more confidence inspiring on the point because there was no occasion for police to search the house when the accused had yet not been arrested. When P.W. Akram deposed about the recovery of shot gun, cartridge and licence from the accused, he was not at all suggested by the accused that the gun had been recovered during search of the house. Be that as it may, the shot gun recovered belongs to the accused as it is licensed in his name. Another objection raised by the accused was that the shot gun has not been sent to ballistic expert, therefore, its recovery is of no consequence. It may be noted that this argument has no force because empty cartridge has not been found and Investigating Officer stated that accused informed him that he had burnt it, therefore, there was no point to send the shot gun for examination of the ballistic expert. About the remaining recoveries our attention was drawn to certain cuttings of dates on recovery memo, which we think are not material as rightly explained by Naib-Tehsildar in his statement In the dying declaration as well as in the statement of the eye­ witnesses it has come on record that the motive to kill was that the accused Sheikh Abdul Hameed had been engaged by the deceased who had made a payment of Rs. 30,000 to him but the accused still insisted for making payment of Rs. 30,000. Also that Sheikh Abdul Hameed wanted that brother of accused should marry his sister but Arshad Ah declined. As to dispute over Rs. 30,000 P.W. Akhtar Khattak, statement of injured, statement of P.W. Anwar Sultana and Zahid all corroborate each other. So much so that accused in his statement recorded under section 342, Cr.P.C. in reply to this question answered as follows: - "Factually it was not a dispute but the deceased agreed to pay the amount and a stamp paper and pronote was also written in this regard and the said amount subsequently decreed." Thus, the motive is proved as the deceased had not paid Rs. 30,000 to the accused, who in a dubious manner obtained a pronote as fee which is indeed unheard off, of an Advocate. In defence the accused tried to prove that P.W. Anwar Sultana was a lady of loose character who made an attempt to commit suicide. In this regard he produced D.W. 1, D.W. 2 and D.W. 3. All the remaining witnesses deposed about the previous murder of Qutab Khan and involvement of Anwar Sultana etc. The evidence at the most may cast some doubt on the character of Anwar Sultana but as far as Arshad Ali and Zahid, there is nothing to doubt their veracity on any ground. Besides, P.W. 5 Rahim baloch was an independent witness who fully corroborated their version. It is pertinent to mention here that learned trial Court has made an observation that Tehsildar or Naib-Tehsildar had no jurisdiction under Cr.P.C. to conduct investigation. It may be noted that areas of investigation have been divided into "A" and "B" since very long and the police has been conducting investigation in this part of the country only in "A" areas; whereas the Tehsildar, Naib-Tehsildar as incharge of Levies have been responsible for conducting investigation in "B" areas. A specific provision for investigation by Levies had been made in the Criminal Law (Special Provisions) Ordinance (II of 1968) which law was declared void being violative of the Constitution. But the areas of investigation are still divided into "A" and "B" areas and it requires time and money to make alternate arrangement for introducing police in all the areas. However, till such arrangements are made Courts would not create a vacuum to the prevalent practice of investigation which is carried out by Naib-Tehsildar alongwith Levies. From the above discussion we have come to the conclusion that the prosecution brought sufficient evidence and proved the charge to the hilt against the accused by producing ocular evidence, dying declaration, recovery of incriminating articles and circumstantial evidence. The

conclusions drawn by the trial Court are uncalled for and perverse. The judgment of the Sessions Judge, dated 14.2.1995 is, therefore, set aside and in view of overwhelming evidence the accused is found guilty for an offence under section 302, P.P.C. However, keeping in view the circumstances of the case we convict the accused under section 302(b), P.P.C. He is sentenced to suffer imprisonment for life. He shall be arrested and confined in Central ' Jail Mach to undergo the sentence. He is also given benefit of section 382(b), Cr.P.C. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1886 (DB) Present: QAZI HAMIDUDDIN AND QAZI IHSAN ULLAH QURESHI, JJ. SHAHZADA-Appellant versus STATE-Respondent Criminal Appeal No. 195 of 1995, decided on 18th December, 1995. (i) Pakistan Penal Code, 1860 (XLV of I860)-- -—S. 302/34~Appreciation of evidence-Ocular version had identically substantiated the promptly lodged F.I.R. nothing materially contradictory had been adduced in the cross-examination of the eye-witnesses who were positive and consistent in their statements about the involvement of the accused in the crime-Degree of interest of the prosecution witnesses in the matter was not proved to be of such a nature as to lead them to malicious implicate the accused-Accused and his co-accused had perpetrated the crime in furtherance of their common intention and accused had absconded after the occurrence and he had not even cared to explain his abscondence-Conviction and sentence of accused passed by Trial Court were upheld in circumstances. [Pp. 1890 & 1891] A, D & E (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302/34--Eye-witnesses are supposed to narrate what they had seen happening and are not required to explain the physical phenomenon accompanying the occurrence or solve the mysteries arising out of the incident. [P. 1890] B (iii) Pakistan Penal Code, 1860 (XLV of I860)-- —- S. 302/34-Wintess-Interested witness-Credibility--Wintess would not lose his credibility for being related to the complainant or inimical to the accused and it would not be fair to altogether discredit his evidence or presuppose the same to be false or fabricated merely for the reason of his being "interested"-Essential to prove that the degree of the interest of the witness had rendered him compulsive, liar to maliciously implicate the accused notwithstanding his own knowledge about the accused being innocent. , [P. 1891] C Mr. Abdul Sattar Khan, Advocate for Appellant. Mr. Patch Muhammad Khan, Advocate for the State. Mr. Bashir Ullah Khan, Advocate for the Complainant. Date of hearing: 29.11.1995. judgment Qazi Hamiduddin, J.-Shahzada son of Faqir Shah aged 55/60 years resident of Dargai, Tehsil and District Nowshera, appellant herein, charged for the murder of Ajmir Shah, his co-villager, alongwith the absconding co-accused Gulzada, Pir Akbar Shah and Tajbar Shah, was tried under section 302/34, P.P.C.. by the learned Sessions Judge, Nowshera, who vide his judgment, dated 4.6.1995 convicted and sentenced him under the aforesaid section of law to imprisonment for life and a fine of Rs. 20,000 or in default to undergo one year's R.I. Half of the fine on realization was ordered to be paid to the heirs of the deceased. Benefit of section 382-B, Cr.P.C. was also extended to the appellant. This criminal appeal challenges the conviction and sentence of the appellant. 2. Facts of the prosecution case as disclosed in the F.I.R. lodged on 21.4.1993 at 7.10 a.m. by the complainant Alif Shah are that on 21.4.1993 at about 6.15 a.m. he alongwith his son Ajmir Shah (deceased) was proceeding towards their Arhat from their house. Ajmir Shah (deceased) was going ahead having a bull with him while the complainant was following him with a cow. When they reached near the house of the appellant Shahzada, all the four accused namely Shahzada son of Faqir Shah, Gulzada son of Shahzada, Mir Akbar Shah son of Ghafoor Shah and Tajbar Shah son of Akbar Shah, his co-villagers, armed with fire-arms, emerged form the street of Shahzada and started firing at Ajmir Shah with intention to kill with which he was hit fell down and died on the spot. After committing the offence the culprits decamped from the spot. The occurrence is stated to have been witnessed by Zafoor Shah and Zarbad Shah, P.Ws. Motive for the offence is stated to be previous enmity on account of disgrace of womenfolk. 3. The report (Exh. PA.) was recorded by Zarif Khan, S.H.6. (P.W. 5), it was read over to the complainant Alif Shah who after having admitted it correct thumb-impressed it. He prepared the injury sheet (Exh. P.D.) and inquest report (Exh. P.D./l) of the deceased and despatched the dead body to the mortuary for post-mortem examination under the escort of zim Dad, F.C. (P.W. 6). He then proceeded to the spot and during the spot inspection he took into possession blood-stained earth vide memo. Exh. P.C./l in the presence of marginal witnesses and prepared the site plan (Exh. P.B.) at the instance of the complainant and the eye-witnesses. He also took into possession blood-stained clothes of the deceased P. 1 to P. 3 brought by Azim Dad F.C. from the hospital and sealed the same into parcel vide memo. Exh. P.C. He sent the blood-stained earth and blood-stained clothes of the deceased to the Chemical Examiner vide obtaining warrant of arrest under section 204, Cr.P.C. against all the accused and vide Exh. P.F./1 also mad an application for obtaining proclamation against the appellant and the absconding accused. He recorded the statements of the P.Ws. and on completion of the investigation submitted complete challan against all the accused under section 512, Cr.P.C. The appellant was arrested on 5.8.1993 and a supplementary challan was submitted in Court by S.I. Fakhrullah Khan S.I. (P.W. 4). 4. Dr. Tariq Khan (P.W. 9) Medical Officer, District Headquarters Hospital, Nowshera performed autopsy on the dead body of Ajmir Shah on 21.4.1993 at 8.30 a.m. and found the following injuries on external examination:- (1) Fire-arm entry wound 1/4" x 1/4" present on mastoid region of skull behind right ear. (2) Fire-arm exit wound 2" x 1" present left ear with tearing of left pinna. (3) Fire-arm entry wound 1/4" x 1/4" ou left lateral chest at 7th intercostal space 2 c.m. lateral to mid axillary line. (4) Fire-arm exit wound 2" x 1" on right lumber region of abdomen. (5) Fire-arm entry wound 1/4" x 1/4" on lateral surface of left thigh 4" below left hip. (6) Fire-arm exit wound 1/2" x 1/2" on anterior surface of left thigh 4" below left hip. On dissection the doctor found the following: - Scalp, skull membrane, brain injured. Thorax walls, ribs, pleurae, left lung injured. Abdomen, wall, peritoneum, diaphragm (Lt), stomach, small and large intestine, right kidney injured. The doctor opined that the death of the deceased had occurred due to injuries to vital organs Le. brain as a result of fire-arm. Probable time between injuries and death was stated to be instantaneous while time between death and post-mortem within three hours. 5. The prosecution examined as many as 10 witnesses in support of its case. Appellant Shahzad when examined under section 342, Cr.P.C. denied all the charges and pleaded innocence. He further stated that he had been falsely charged and the prosecution witnesses were interested and inimical towards him. As regards the abscondence he stated that he was in Azad Kashmir for labour purpose and on coming to the village he was arrested by the police. He did not opt to be examined on oath or to produce defence. 6. In this case the prosecution while relying on the testimony of the two eye-witnesses, Ali Shah (P.W. 2) complainant father of deceased Ajmir Shah and Zarbad Shah son of Mehboob Shah (P.W. 3) cousin of the deceased, the enmity of the accused party with the complainant party, the recoveries from the spot and abscondence of the accused succeede in obtaining conviction of the accused. While in the present appeal to the conviction has been assailed on the ground that the conviction is illegal as it is against material available on the record; that there was no recovery of any empty from the scene of occurrence though quite a large number of shots were fired; that the ocular evidence is not supported by any independent witness; that P.W. 3 Zarbad Shah was employed at Margala, Islamabad and his presence at the scene of occurrence is not proved; there is no motive for he commission of the offence against the accused; that the injuries received by the deceased are of identical dimensions whereas the number of accused is four including the present appellant and all of them have been shown to have been armed with different types of weapons and it is also not known as with whose fire shots the deceased was injured and succumbed to the injuries; that the prosecution case suffers from many discrepancies and contradictions; that the ocular testimony is in conflict with the circumstantial evidence and that the provisions of section 34, P.P.C. are not attracted and that the petitioner being the elder member of the family has been falsely implicated in the present case. 7. Arguments heard and record perused. The perusal of statements of Alif Shah (P.W. 2) and Zarbad Shah (P.W. 3) reveals that their version identically substantiates the promptly lodged F.I.R, and nothing materially contradictory has been obtained from them in the cross-examination. On factual side of the narration, they have given similar version and their testimony has withstood the gruelling test of cross-examination about the details of the occurrence as narrated in their statements. The eye-witnesses are supposed to narrate what they have seen happening and are not required to explain the physical phenomenon accompanying the occurrence or solve the mysteries arising out of the incident. They are not supposed to explain as | to why only the deceased sustained injuries while the complainant and other eye-witnesses who were also fired at escaped unhurt. Similarly they are not supposed to explain as to where the empties of the fire shots fired by the accused party have gone and why the same were not recovered from the scene of occurrence. Similarly they are not required to prove as to why the walls of the street did not carry the bullet marks. The ocular evidence is to certify beyond any shadow of doubt, the role attributed to the appellant in the commission of the crime which in this case has been amply proved beyond doubts and the testimony of these witnesses with regard to their presence at the scene of occurrence and the firing by the appellant and his accomplices at the complainant paity and the deceased as a result of which the deceased was fatally wounded has gone unquestioned. It is correct that the testimony of the ocular evidence can be contradicted by the accompanying circumstances of the crime like the absence of recovery of the empties from the scene of occurrence and other such facts but the fact as to whether the occurrence has taken or has not taken place and whether the appellant had participated in the commission of the crime can be safely ascertained to be correct in this case. The discrepancies referred to in the grounds of appeal can be ignored because the cross-examination of the two eye-witnesses has not dislodged the witnesses from their claim to be the eyewitnesses of the occurrence nor any doubt has been created otherwise than through these discrepancies to their presence at the spot. The absence of recovery from the scene of occurrence at the time of inspection of the spot could have been for the reason that the scene of occurrence was left unprotected and there is no evidence to the effect that a guard was installed v by any one after occurrence to protect the scene of the occurrence from the access of the people of the locality. As regards the objection of the appellant to the effect that all the four accused have allegedly fired at the complainant, eye-witnesses and the deceased, but only the deceased received the fatal injuries can be explained by the fact that in such like cases the witnesses do exaggerate their involvement in the occurrence and the fact that they escaped unhurt would not absolve the appellant of the charges which the witnesses levelled against him. Similarly the defence objection to the absence bullet marks on the walls of the street can be overruled for the reason that the bullets may not have struck the walls at all as the line of fire shots does not indicate that the bullets should have struck the wall. The next point in defence of the appellant's case is that the injuries on the person of the deceased are of identical dimensions but no effort has been made by the defence to prove that the weapons carried by the four accused could not cause the injuries of the dimensions borne by the deceased and also the possibility cannot be excluded that the fire shots of only one of the accused may have resulted in the death of the deceased. The two eye­ witnesses have consistently charged the four accused including the appellant for the offence with a motive which has not been shattered and the subsequent conduct of the appellant of abscondence goes a long way to prove a case against the appellant. The learned counsel for the appellant has assailed the testimony of the two eye-witnesses for being interested as they are related to the deceased but has not been able to prove that their animosity towards the accused was of such nature to have led them to substitute the real offender. A witness would not lose his credibility for being related to the complainant or inimical to the accused. It would not be fair to altogether discredit the evidence or presuppose it to be false or fabricated merely for the reason that it is interested. It is essential to prove that the degree of the interest of the witnesses rendered him compulsive liar to maliciously implicate the accused, notwithstanding his own knowledge that the accused is innocent. In this case the witnesses are positive and consistent in their statements about the involvement of the appellant and that the degree of interest of the P.Ws. is not proved to be of such a nature as to lead them to maliciously implicate the accused. Similarly whatever may be the number and dimensions of the injuries the fact that they in furtherance of their common intention perpetrated the crime goes a long way to establish a good case against the appellant and his conduct subsequent to the occurrence and that of bis co-accused, who all preferred to abscond and only the appellant surrendered, may be as a test case to pave the way for future line to be adopted by them. The abscondence has gone unexplained and the appellant does not even prefer to explain it even through his own statement on oath or through other evidence in this regard. In the light of the above discussion this Court agrees with the learned Sessions Judge who has recorded the conviction and maintains his judgment. Appeal is accordingly dismissed. (M.A.A.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1891 Present: jawaid nawaz khan gandapur, J. ARBAB KHAN-Petitioner versus STATE-Respondent H.C.P. No. 21 of 1995, decided on 29.11.1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491--Ha6eos corpus petition-Alleged detenu had been arrested in case registered at the Police Station under Art. 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and his arrest had been shown in the Daily Diary Register-Magistrate had also granted five days' police custody of the accused to the Investigating Officer-Alleged detenu, therefore, had not been detained illegally by the police-Petition was dismissed accordingly. [P. 1892] A & B Khan Akbar Afridi, Advocate for Petitioner. Malik Hamid Saeed, A.A.G. for the State. Date of hearing: 29.11.1995. judgment The instant petition was filed under section 491, Cr.P.C. for the recovery and release of Haji Murad Khan son of Haji Umar Khan (the detenu) from the alleged illegal custody of respondent No. 1 Shah Wall Khan, D.S.P., C.I.A., Peshawar. 2. Malik Hamid Saeed the learned Additional Advocate-General who was present in some other case (Buner u. The State) had accepted the notice in this petition at 12.30 p.m. today. 3. The learned counsel for the petitioner had submitted that the bailiff or any other official of this Court be directed to go to the Police Station C.I.A., and to recover the detenu, where he was detained, and to produce him in the Court today. Accordingly the bailiff/official of this Court was directed to go to the Police Station C.I.A. for iiie recovery of the detenu and to produce him in Court at 2.30 p.m. and a notice to respondent No. 1 was also given to appear in person alongwith the record. 4. In compliance with the order of this Court respondent No. 1 Shah Wali Khan, D.S.P., C.I.A. Peshawar presented himself in person as well as produced Haji Murad Khan, the alleged detenu. 5. The statement of respondent No. 1, Shah Wali Khan D.S.P., C.I.A., Peshawar recorded on oath and placed on file. 6. I have also seen the Daily Diary Register (Serial No. 12), the application (Exh. P. 1) submitted by the Investigating Officer (Khitab Gul) before the Magistrate, seeking the remand of Haji Murad Khan and the order (Exh. P. 2) of the Magistrate (Mr. Mastan Khan Wazir) and I am satisfied that Haji Murad Khan has not been detained illegally or without any rhyme or reason. He has been arrested in case registered vide F.I.R. No. 641, dated 28.10.1995 registered in Police Station Kabali under Article ¾ of the Prohibition (Enforcement of Hadd) Order, 1979 and was duly produced before the Magistrate who, in turn, granted five days' police custody to the Investigating Officer. 7. In the circumstances the present petition having become infructuous is accordingly dismissed. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1893 Present: mrs. khalida rachid, J. AHMAD ALI--Petitioner versus STATE-Respondent Criminal Miscellaneous No. 770 of 1995, decided on 8th October, 1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)--Penal Code (XLV of I860), S. 302--Bail, grant of--Accused was not charged in the F.I.R. for having committed the murder of his sister and had been implicated in the case after the receipt of medical report prima facie, medical report did not give any positive indication either denying the suicide or affirming the homicide-Date of confessional statement made by accused was not known as it was not produced in Court-Parents cf the accused had filed affidavits regarding his innocence and false involvement in the case-Case against accused in circumstances needed further inquiry and he was admitted to bail accordingly. [P. 1894] A & B Mr. Gulmast Khan, Advocate for the Petitioner. Mr. Ashab All Bangash, Advocate for the State. Date of hearing: 8.10.1995. order This is a bail application submitted by Ahmad Ali charged under section 3C2, P.P.C. on the basis of F.I.R. No. 501, dated 27.6.1995 registered at Police Station Kalu Khan. 2. The brief facts of the case are that on 21.6.1995 at 11.00 hours Sarwar son of Haider Khan brought the dead body of his daughter, Mst. Anwarzia, to the police station reporting that his daughter Mst. Anwarzia was married to one Fazal Hadi some 6/7 months back but due to strained relations with her husband, she returned to her parents' house about three months ago and despite several Jirgas she could not persuaded to go back to her husband. On the day of occurrence when he and his wife were away from the house she had committed suicide. Report was accordingly recorded as case of suicide vide Mad. No. 35. dated 21.6.1995. 3. After receiving the report of post-mortem, police suspected the suicidal story for the reasons that entry wound was found at the right back side and the exit wound on the front side of the victim, therefore, F.I.R. No. 501 on 27.6.1995 was drawn to be a case of section 302, P.P.C. and charged Ahmad Ali son of Sarwar, brother of the deceased, on the ground that Mst. Anwarzia had eloped with one Fazal Hadi and had returned home after staying 3 months with her paramour which made the petitioner to kill his sister. Subsequently he was arrested on 4.7.1995. The prayers of the petitioner for his enlargement on bail did not find favour with the Courts below, hence, the present application. It is alleged by the learned counsel for the petitioner that the confessional statement of the petitioner was extracted from him by force and coercion. It is further alleged that statement of complainant recorded under section 164, Cr.P.C. was also the result of severe pressure by the police on the assumption that being the family matter it would be compromised. 4. Admittedly the petitioner is not charged in the F.I.R. lodged by complainant, Sarwar. He was made an accused after receipt of medical report, dated 21.6.1995 and statement of complainant recorded under section 164, Cr.P.C. 6.7.1995. It is not understood as to how the petitioner was made an accused before the statement of the complainant under section 164, Cr.P.C. against the petitioner was recorded. Neither the copy nor the original of the confessional statement was made available for this Court to be able to confirm the date of recording the confessional statement. The medical report showing entry wound at the back and exist wound on the front with charring present does not give any positive indication denying the suicide or affirming the homicide. Though the medical report was the basis of charging the petitioner, however, injury on the finger of the right hand could not be ignored which according to the learned counsel was the result of using the trigger with full force by the deceased while committing suicide. The complainant, father, and Mst. Saleh, mother of the petitioner and the deceased have also submitted affidavits that their son, petitioner, is innocent and has been falsely involved in the case by the police. In view of above, I hold it a case of further enquiry and thus allow bail to the petitioner provided he furnishes bail bond in the sum of Rs. 1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of Additional Registrar of this Court. The Additional Registrar is directed to ensure that the sureties are reliable and men of means having immovable property in their names equivalent to the amount of the bond. (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Peshawar) 1894 Present: jawaid nawaz khan gandapur, J. MUHAMMAD SHERAZ-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 90 of 1995, decided on 26th September, 1995. Criminal Procedure Code, 1898 (V of 1898)-- ...g. 497-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 5/10-Penal Code (XLV of I860), S. 506-Bail-Delay of 16/17 hours in lodging the F.I.R. had been reasonably explained-Complainant, an unmarried young girl of 16/17 years of age, had no ulterior motive to falsely implicate the aee<:sud--Complainant had irectly charged the accused in the F.I.R. for the commission of the offence and her version was supported by the prosecution witnesses, medical evidence and the recoveiy of the gun at the instance of the accused—Reasonable grounds were available to believe the connection of the accused with the commission of the alleged offence-Bail was declined to accused in circumstances. [P. 1896] A & B Abdullah Jan and Shad Muhammad Khan, Advocates for Petitioner. Ghulam Mustafa, Advocate for the State. Qazi Shams-ud-Din, Advocate for the Complainant. Date of hearing: 26.9.1995. order The petitioner has been charged for having committed an offence punishable under section 5/10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with section 506, P.P.C. vide F.I.R. No. 53, dated 25.3.1995 lodged in Police Station Phulra, Tehsil and District Mansehra. His bail petition' in the first instance, was rejected by S.T.M./M.I.C,, Mansehra uide his order, dated 12.4.1995. Thereafter he approached the Court of bessions Judge Mansehra for the redress of his grievance. The Sessions Judge by his order, dated 18.4.1995 also rejected his prayer for bail. Hence this petition. 2. The learned counsel for the petitioner Mirza Abdullah Jan, Advocate contended that in the case in hand the F.I.R. was lodged after considerable delay inasmuch as the occurrence is alleged to have taken place at Degarwela, on 24.3.1995, whereas the F.I.R. was lodged on the next day, on 25.3.1995 at 12 noon, in spite of the fact that the place of occurrence is situated at a distance of 17/18 kilometers form the police station. He, therefore, stated that on this score, alone, the prosecution case has become highly doubtful and thus of further inquiry. He next contended that the story contained in the F.I.R. is belied by the P.Ws., examined under section 161, Cr.P.C., thereby demolishing the entire prosecution case. The learned counsel further stated that the medical report is defective in its nature and hardly inspires confidence because it has not been disclosed as to when the complainant was subjected to sexual intercourse by the petitioner/accused and that there is nothing on the record to suggest that the petitioner was in fact capable of performing sexual intercourse at the relevant time, that the Investigating Officer had not bothered to get the petitioner medically examined in this regard. He also drew my attention to the statement of P.W. Mst. Shameem, wife of Muhammad Maroof, recorded on 5.4.1995 under section 164, Cr.P.C. and submitted that she has made improvement between her statements recorded under section 161, Cr.P.C. and under section 164, Cr.P.C. respectively. He accordingly prayed that the petitioner's case is that of further inquiry and that he be released on bail. 3. On the other hand, the learned counsel for the State, Sardar Ghulara Mustafa, Advocate, and the learned counsel for the complainant, Qazi Shams-ud-Din, Advocate, contended that in the very F.I.R. the delay (of about 16 hours) in lodging the F.I.R. has been reasonably explained and that is that the elders of the village were trying to patch-up the matter between the parties. They further stated that since the matter could not be settled amicably, therefore, the complainant was forced to lodge the F.I.R. According to them there was nothing on the file to suggest if there was any ill-will or enmity between the victim (complainant) and the petitioner (accused) which could instigate or motivate her to charge the petitioner falsely, without any ' rhyme or reason, for such an heinous offence/crime. They statedthat no reason exists and none indeed has been made out as to why a respectable young and unmarried lady would disgrace herself as well as her entire family by lodging such a frivolous report. . 4. I have gone through the record of the case with some degree of care and am of the considered view, without dilating upon the merits of the case at this stage, that the reason for lodging the report, after a lapse of 16/17 hours, has been duly and reasonably explained in the circumstances of is case. There is nothing on the file to suggest that the complainant who is admittedly an unmarried young girl of 16/17 years of age, has any ulterior motive or enmity to implicate falsely, the petitioner for committing such heinous crime. I, therefore, agree with the contention of the learned counsel r the complainant that no respectable lady would lodge a false report where not only her own honour but the honour of her entire family is at stake. There is also no doubt that the petitioner alone is charged, directly, in the F.I.R. and that the version of the victim (complainant), for the time being, is supported by the P.Ws. Needless to mention that the medical evidence as well as the factum of the recovery of the gun, at the pointation of the petitioner/accused, tentatively, support the version of the complainant. 5. In the circumstances I am of the opinion that reasonable grounds do exist for believing that the petitioner is connected with the commission of the offence with which he has been charged and accordingly does not deserve to be released on bail. This petition being without any merit is thus, rejected. 6. Since the investigation has been completed an<" the challan has also been prepared, therefore; the prosecution is directed to submit the challan for trial in the Court of competent jurisdiction within a period of 15 days, positively. (M.A.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1897 Present: mian muhammad ajmal, J. IRSHAD and another-Petitioners versus STATE-Respondent Criminal Miscellaneous Nos. 611 and 612 of 1995, decided on 14th September, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)- —-S. 497-Penal Code (XLV of 1860), S. 302/324/34-Bail-Grant of- Promptly lodged F.I.R. had ruled out the possibility of concoction or a false charge against the accused-Accused had been charged by name in the F.I.R. for having fired at the complainant party whereby the deceased girl lost her life-Accused had absconded after the occurrence and remained fugitive from law for a considerable period without any explanation-Charge against accused was also supported by an eye­ witness-Reasonable grounds existed to believe that accused were guilty of an offence punishable with death or imprisonment for life-Bail was refused. [Pp. 1898 & 1899] A & C (ii) Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Bail-Abscondence-Fugitive from law loses some of the normal rights granted by the procedural and substantive laws and noticeable abscondence disentitles the absconder to the concession of bail notwithstanding the merits of the case. [P. 1899] B Mr. ShahzadAkbar Khan, Advocate for Petitioner. Mr. Fateh Muhammad Khan, Advocate for State. Mr. Fazal Elahi Khan, Advocate for the Complainant. Date of hearing: 14.9.1995. order By this order I propose to disposes of Criminal Miscellaneous No. 611 and 612 of 1995, as both of them arise out of the same F.I.R. 2. The accused-petitioners are charged in F.I.R. No. 643, dated 24.9.1994, registered at Police Station, Kalu Khan under section 302/324/34, P.P.C. for the murder ofMst. Sareer aged about 10 years. After their arrest they applied for their release on bail to the Hlaqa Magistrate, but their applications were rejected. Thereafter they moved the Court of Sessions for the same relief, but they failed thereto as well. 3. I have heard learned counsel for the petitioners, complainant and the State and have gone through the record. 4. Learned counsel for the petitioners contended that the accusedpetitioners have been falsely implicated in the case as due to pitch dark night they could not be identified; that they are stated to have fired from the field having maize crop of 6' height and that non-recovery of blood from the spot indicates that the occurrence has not taken place in the manner as set forth by the prosecution. He referred to the application to Tajbar and stressed that the complainant party, in order to pressurise the accused petitioners for effecting compromise in earlier case, killed the minor girl and plastered the charge against the petitioners, which finds support from the statements of yed Qadar Shah and 7 others. According to him the case requires further inquiry into the matter and thus the petitioners deserve bail. 5. Opposing the bail application, learned counsel for the State assisted by complainant's counsel maintained that the F.I.R. was lodged within one and a half hour of the occurrence in police station, which was at a distance of 5/6 Km. eliminates the possibility of fabrication/false implication or non-identification. It was urged that the story tailored by the defence is simply absurd as one cannot even conceive that anybody would kill his own daughter to pressurise the opponent for compromise. The petitioners after the occurrence absconded and remained in hiding for a noticeable period which disentitles them to bail. 6. The promptly lodged report rules out the concoction or a false charge against the accused-petitioners. All the three accused-petitioners have been charged by name in F.I.R. for firing at the complainant party whereby the girl got hit and then was taken in injured condition to the police station. After recording the report she was referred to hospital where she succumbed to her injury. The very fact that the girl was taken in an injured condition to the police station falsifies the defence story that she was killed by the complainant party and false charge was labelled against the petitioners. The accused-petitioners absconded after the occurrence and remained fugitive from law for a considerable period for which no plausible explanation could be advanced. One of the accused namely Farhad is still at large. The application which was greatly stressed upon, cannot lend and help to the petitioners for two-fold reasons, firstly, it being of a dubious character and secondly it is based on suppositions. The application containing unbelievable stoiy was addressed to S.P., Swabi on the very next day of the occurrence i.e. on 25.9.1994 which was marked to S.H.O., Police Station Kalu Khan for enquiry and report but it is strange to note that the date given under the initial is 20-9 Le. 5 days prior to date of application itself. This application was moved by Tajbar Shah when the accused named in that F.I.R. had already absconded. Had the charge been false or concocted, they should not have gone into hiding for 8/9 months but should have faced the charge. The S.H.O.. after recording the statements of Syed Qadar Shah and others, opined that it was rumoured that murder was committed by Wazir and Aurangzeb P.Os. but none was coming forward to depose as an eye­ witness, hence their depositions can only be treated as hypothetical. It is a ettled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law, and noticeable abscondence disentitles the absconders to the concession of bail notwithstanding the merits of the case. There is no finding on the record either of the officer-in-charge of the police station or of Court that there are no reasonable ground for believing that the accused has committed a non-bailable offence and without such a finding the accused cannot press into service the ground of further inquiry for their release on bail. In view of the direct charge supported by an eye-witness coupled with noticeable long abscondence sufficiently provide reasonable grounds to believe that the accused-petitioners are guilty of offence punishable with death or imprisonment for life, therefore, their applications for bail are dismissed. (M.A.A.) Bail refused

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1899 Present: abdul majid khanzada, J. FAHlMUDDIN-Appellant versus STATE-Respondent Criminal Appeal No. 176 of 1993, decided on 29th November, 1995. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302-Appreciation of evidence-No witness of the occurrence was named in the F.I.R.-Accused had no motive to commit the murder-­ Complainant had departed from his F.I.R. at the trial- -Deceased's clothes id not bear the corresponding cut mark-Some of the Mashirnamas had admittedly been prepared and signed at the police station—Chemical xaminer's report was not worth reliance-Prosecution witnesses had belied each other and were not supported by any other evidence-Coaccused had been acquitted by Trial Court on the same evidence- Accused was acquitted in circumstances. [P. 1904] A & B Shaikh Mir Muhammad, Advocate for Appellant. Mr. Anwar Jamal, Advocate for the Complainant. Mr. Habib Ahmed, Advocate for the State. Date of hearing: 7.11.1995. judgment This appeal is directed against the judgment, dated 16.5.1993, passed by the Illrd Additional Sessions .Judge, Karachi-East, whereby the appellant has been convicted in Sessions Case State v. Fahimuddin and another No 519/9T) under section 302/34, P.P.C. registered at Police Station Malir Extension, as Crime No. 94/90 and sentenced to imprisonment for life and to pay a fine of Rs. 10,000 to the legal heirs of the deceased or in default thereof to undergo R.I. for one year more. Briefly stated the facts which give rise to this appeal are that on 20.6.1990 at 00-10 hour complainant Muhammad Shakeel lodged his above referred F.I.R. as under: - "I am residing at the above address and do tailoring work. On 19.6.1990 when at about 10.30 p.m. I was present at home Mohalla boys came and told that one Fahimuddin stabbed my brother Aqeel aged about 20/22 years at the left side with a knife at double storey School Ground, on some money matter due to which he is seriously injured. I took him to the Jinnah Hospital in a taxi, but Aqeel died on the way. I brought dead body to police station after it Was checked by the doctor. This incident was witnessed by the people who were present there. Report made for taking legal action. I cla ; -n that my brother Aqeel has been murdered by knife blows. Report is read over and affirmed correct." After lodging the report by the complainant, Sub-Inspector Muhammad Ismail prepared the inquest report and memo, of inspection of dead body in presence of Mashirs. The dead body was then despatched to Police Surgeon for post-mortem examination. The site was then inspected in presence of Mushirs Muhammad Rafiq and Muhammad Shakeel. Such merno. was also prepared. The blood-stained clothes were secured and sent to Chemical Examiner for report. The statements under section 161, Cr.P.C. of the witnesses, namely, (1) Akram Hussain, (2) Muhammad Rafique, (3) Rahib, (4) Muhammad Javed and (5) Muhammad Arif were recorded. The accused Fahimuddin and Abdul Ghaffar were then arrested by the Sub- Inspector Muhammad Ismail and on the pointation of accused Fahimuddin the crime weapon was secured from a Juggi. The same was sealed in presence of the Mashirs. After completing the investigation the accused were challaned. They pleaded not guilty to the charge and disowned the allegations of prosecution. In support of its case the prosecution examined complainant Muhammad Shakeel (P.W. 1) as Exh. 5, who produced F.I.R. as Exh. 6, Inquest Report as Exh. 7, Mashirnama of dead body as Exh. 8, Mashirnama of securing blood-stained clothes of deceased Muhammad Aqeel as Exh. 9, Mashirnama of arrest of accused Fahimuddin as Exh. 10, Mahsirnama of arrest of accused Abdul Ghaffar as Exh. 11, and Mahsirnama of site inspection as Exh. 12. P.W. Akram Hussain (Exh. 13), P.W. 3 Muhammad Javed (Exh. 14), P.W. Inspector Rab Nawaz (Exh. 15), P.W. 5 Muhammad Rafique (Exh. 16), P.W. H.C. Abdul Majeed (Exh. 17), who produced the memo, of recovery of knife as Exh. 18 and P.W. 7 H.C. Mir Bux (Exh. 19). Mashir Mustaqeem was given up by the learned counsel for the State vide Exh. 20. C.W. 1, H.C. Abdul Latif process-service (Exh. 21) who stated that P.Ws. Muhammad Arif son of Ghulam Jaffer and Rajoo son of Mohabat Khan Pathan are not traceable. P.W. 8 Muhammad Ismail Khan (Exh. 28), who produced receipt of handing over the dead body to the complainant as Exh. 29, letter, dated 20.6.1990 addressed to M.L.O. Jinnah Hospital by him for conducting post-mortem as Exh. 30 and report of Chemical Analyser as Exh. 31 and P.W. 9 DR. Abdul Razzak (Exh. 32), who produced the M.L.O. No. 2641/90 as Exh. 33 and post-mortem report as Exh. 34. Statements of accused persons under section 342, Cr.P.C. were recorded as Exhs. 35 and 36, wherein they denied the allegations of prosecution. However, neither they examined any witness in their defence, nor examined themselves on oath. The learned Illrd Additional Sessions Judge, Karachi East, convicted the appellant .Fahimuddin son of Naeteiuddin under section 302, P.P.C. and sentenced him to suffer imprisonment for life and to pay fine of Rs. 10,000 to the legal heirs of the deceased or in default to suffer further imprisonment for one year while acquitted the co-accused Abdul Ghaffar son of Abdul Jabbar under section 265-H, Cr.P.C. after determining the following points: - "(1) Whether the deceased Muhammad Aqeel died an unnatural death? (2) Whether the accused in furtherance of their common intention committed murder of deceased Muhammad Aqeel? (3) What offence has been committed by the accused?" No revision has been filed against the acquittal of co-accused Abdul Ghaffar nor for enhancement of the sentence of accused Fahimuddin. The main contentions of the learned counsel for the appellant/accused are that co-accused Abdul Ghaffar has been acquitted on the same set of evidence; that no name of the eye-witness has been mentioned in the F.I.R.; that the complainant has given complete gobye to the F.I.R. and the complainant who is the real brother of the deceased is Mashir in 12 Mashirnamas; that the main witness, taxi driver, Rajoo Khan Pathan has not been examined; that there is no cut on the clothes of the deceased of the knife mentioned in Mashirnama (Exh. 9) so also on the person of the dead body in Mashirnama (Exh. 8); that no blood was secured from the scene of offence; that the name of the eye-witness Akram Hussain does not appear in the F.I.R.; that the name of witness Muhammad Javed does not appear in the F.I.R. nor at the stage of examination of the complainant; that there is material contradictions between the evidence of P.W. Muhammad Javed and Akram Hussain; that P.W. Muhammad Javed is also the real brother of the deceased and he was examined after 4/5 days; that Mashir Muhammad Rafique states that all the Mashirnamas signed by him were prepared at police station; that the production of Kuph (a knife type) was made form a Juggi which was not in exclusive possession of the accused and there was no blood on Kuph; that there are also material contradictions between the evidence of P.W. Pir Bux and P.W. Abdul Majeed; and that no local people from the area of Juggi were made Mashir though admittedly two persons were there in the Juggi and also it is a thickly populated area. Learned counsel for the appellant/accused has also argued that according to the doctor rigor mortis was fully developed and, according to him, this incident has taken place much earlier and no one had witnessed it; that P.W. Muhammad Rafique has not supported the case of the prosecution; that there is material contradiction in the evidence of the complainant as, on one hand, the complainant stated that he took the dead body to the hospital and, on the other,hand, he stated that he took the dead body to the police station; that the statement of Dr, Khalid has not been recorded; that the present accused was arrested from Hotel Mehran though the owner and 2/4 persons were present at the time of the arrest but none of them has been examined; that there is also material contradiction in the statement of Dr. Abdul Razzak as according to him he received the dead body of Muhammad Aqeel and informed the Police Station Malir Extension, rigor merits has developed, there is a gap of 3/4 hours in the time of death and post-mortem and he received the dead body at a 11.05 p.m. while the incident has taken place, as shown, at 10.30 p.m. and the report is made on the next day i.e. 20.6.1990 at 12.10 a.m., that the doctor contradicts the statement of the Investigating Officer Muhammad Ismail Khan, as according to him the complainant came with the dead body; that the name of the co-accused Abdul Ghaffar does not appear in the F.I.R.; that the incident took place on 19.6.1990 while the letter was written by the S.H.O. to the Chemical Analyser on 3.7.1990 and the same was received by the Chemical Analyser on 19.7.1990; that, • according to him, the delay has not been explained as such it loses the evidentiary value. Lastly, he has argued that the knife so secured was not blood-stained and P.W. Muhammad Javed being the real brother of the deceased was examined after 7 days and has given a different story to that of the complainant and has tried to improve the case of the prosecution. In support of his contentions learned counsel has placed reliance on Muhammad and another v. The State 1991 PCr.LJ 761, Khalid Zaman v. The State 1992 PCr.LJ 2289 and Iqbal Masih v. The State 1995 PCr.LJ 231. Mr. Habib Ahmed, learned counsel for the State, has argued that the incident has taken place on 19.6.1990 at 10.30 p.m. while the report was made on the next day at 12.10 a.m., after the lapse of 2-1/2 hours. According to him, the delay has been explained as firstly the injured was taken to private clinic and then to the Jinnah Hospital. According to him, there is no false implication and the name of the present appellant/accused appeared in the F.I.R. He has argued that the complainant Muhammad Shakeel has explained the delay in lodging the F.I.R.; that the P.W. Akram Hussain is an independent and natural witness as he is the resident of the same locality and his evidence is unchallenged, that P.W. Muhammad Javed, the brother of the deceased has also implicated the co-accused Abdul Ghaffar; that the present appellant/accused Fahimuddin in reply to a question put to him in his 342, Cr.P.C. statement has stated that the deceased was my friend and due to suspicion I was involved in this case. Lastly, he has argued that it was a sudden fight and there was no intention as such the learned trial Court has already taken lenient view as there is only one injury caused to the deceased by a weapon used to cut leather. I have also heard Mr. Anwer Jamal, learned counsel for the complainant, at length though no revision was filed. He has argued that the F.I.R. is lodged by a person who was not an eye-witnes? as such the name of the witnesses are not given. On this point he has relied on AsifJang and 2 others v. The State PLD 1978 Lah. 1285, State v. Naseer Ahmad PLD 1986 SC (AJ&K) 35, Rasool Bux and another v. The State PLD 1964 (W.P.) Quetta 6. He has also relied upon Qasim and others u. The State PLD 1967 Kar. 233. He has further argued that mere relationship to the deceased does not bar to become a witness and the relations are as good witnesses as others. On this point, he has relied on Muhammad Rafiq v. The State 1981 PCr.LJ 1304. Yousif v. The State PLD 1981 Kar. 672, Muhammad Aslam and another u. The State PLD 1968 Lah. 964. He has argued that the prosecution is not bound to examine all the witnesses and minor contradictions are not helpful to the accused at this stage. On this point he has placed reliance on Ahmad and 4 others v. The State 1968 PCr.LJ 386. Further he has contended that particular point can be disbelieved, but not the whole story for which he relied on PLD 1962 (W.P.) Lah. 58. He has submitted that during those days there was curfew as such police could not examine the witnesses in time. Lastly, he has argued that it is not necessary to take the person of the locality at the time of recovery for which he has relied on Sundar Singh v. The State of Uttar Pradesh PLD 1956 SC (Ind.) 30, 1995 SCMR 614 and 693 and has supported the conviction. I have heard Mr. Shaikh Mir Muhammad, learned counsel for the appellant, Mr. Habib Ahmed, learned counsel for the State and Mr. Anwer Jamal, learned counsel for the complainant and have also gone through the record. The complainant who is real brother of the deceased has stated in the F.I.R. that he was at home when at about 10.30 p.m. on 19.6.1990 some Mohalla boys came and told that one Fahimuddin has stabbed his brother Muhammad Aqeel, aged about 20/22 years at the left side with a knife and as such he took the injured in a taxi but the deceased died on the way. According to him, this incident was witnessed by the people who were present there but no name has been given. There are material contradictions between the evidence of doctor who performed the post-mortem and the Investigating Officer and the witnesses as according to the doctor he received the dead body at about 11.05 p.m. and informed the Police Station Malir Extension while the complainant Muhammad Shakeel who is, real brother of the deceased has stated that when the Mohallah boys informed him that Fahimuddin has murdered this brother Aqeel by giving him knife blows he went to the house of his brother Rafique and with him went to the clinic of Dr. Khalid where he found that the dead body of Aqeel was lying on a bed and the doctor advised him to take the dead body to the J.P.M.C. as such he took the dead body in a taxi to Jinnah Hospital. There is also material contradiction between the evidence of Dr. Abdul Razzak, Muhammad Shakeel and the Investigating Officer Muhammad Ismail Khan, Investigating Officer has stated that the complainant brought the dead body at police station while the doctor says that he informed the Police Station Malir extension. According to Investigating Officer, he took the dead body to the Jinnah Hospital alongwith the complainant and others. This version is belied by the evidence of the complainant as well as by Dr. Abdul Razzak. There is no name of the witnesses in the F.I.R. even the complainant has not said who has informed him as according, to him, some Mohallah boys came and informed him. There is no motive as to why accused Fahimuddin committed murder of deceased. On the other hand, the accused has stated in his 342, Cr.P.C. statement that the deceased was his friend and his name has been given due to suspicion. The complainant who is real brother of the deceased has given complete gobye to the F.I.R. he is also Mashir of all the twelve (12) Mashirnamas. It is very strange to note that the Mashirnamas (Exh. 8 and 9), inquest report and Mashirnama of securing of the clothes of the deceased do not show any cut on the clothes of the deceased. It is strange and unbelievable that if the injury is caused form sharp side of a weapon, how it penetrated the body without cutting the clothes. The complainant has stated in his deposition that he went to the house of Rafique Bhai and with him went to the Clinic of Dr. Khalid, but P.W. Rafique does not support the complainant. On the other hand, he says that he signed the Mashirnamas of inquest report, clothes of deceased and place of Wardat. According to him, these Mashirnamas were prepared at police station and he signed them at police station. The report of the Chemical Analyser cannot be relied which is in respect of Shalwar, shirt and Banyan of the deceased as the incident took place on 19.6.1990 and the S.H.O. sent the same on 3.7.1990 which was received by the Chemical Analyser on 19.7.1990 as such they were lying in the police station for about a month. The prosecution has failed to establish the guilt of the accused. On perusal of the evidence it reveals that the witnesses belie each other and do not get support form any other piece of evidence. The co-accused has already been acquitted on the same set of evidence. The prosecution has miserably failed to bring the guilt of the accused at home. The appeal is, therefore, allowed, conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be set at liberty forthwith, if not required in any other case. (M.A.A.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1905 Present: TASSADUQ HUSSAIN JlLANI, J. NAWAZ alias NAZIM--Petitioner versus STATE-Respondent Criminal Miscellaneous No. 100-B of 1994/BWP, decided on 12th October, 1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(1), third proviso-Pakistan Penal Code (XLV of 1860), S. 302/ 324/109/34--Bail--Bail was sought on the ground of statutory delay alone-Accused armed with a gun alongwith others had, prima facie, thwarted the process of the Court by attempting to take forcible possession of the land in dispute with a view to show their possession before the Commission appointed by the Civil Court who was to visit the spot that day and in doing so he not only fired a fatal shot at the deceased but also fired at a prosecution witness and injured him—Such conduct of the accused had, prima fade, made him a desperate person to bring his case within the ambit of fourth proviso to S. 497(1), Cr.P.C.-Bail was declined to accused in circumstances. [P. 1907] A Mr. Abdur Rehman Tayyib, Advocate for Petitioner. Mr. Mumtaz Mustafa, Advocate for the Complainant. order The petitioner and four others were proceeded against vide F.I.R. No. 72/92 under section 302/324/109/34, P.P.C. Police Station Shaidani, Tehsil Liaquatpur, District Rahim Yar Khan. 2. The prosecution story briefly stated in the F.I.R. is that on 22.5.1995 at about 7.30 a.m., the petitioner armed with .12 bore gun and his co-accused variously armed with fire-arms trespassed into the complainant's land. The petitioner fired at Yar Muhammad, father of the complainant, who fell down. Master Ghulam Sarwar fired at Zarif and Eisa co-accused also fire at him. Nazim petitioner again fired at Hayat injured. Muhammad Yar succumbed to the injuries at the spot. The motive alleged in the F.I.R. is that the complainant party had taken land on lease and they were in possession of the said land. The question of possession was subjudice before a Civil Court between the accused party and the complainant party and a commission appointed by the Civil Court was to visit the site on the said day for necessary report. It was alleged that the accused party with a view to show their possession before the commission attempted to take forcible possession of the said land. 3. The learned counsel for the petitioner seeks bail on the ground of delay alone. He submits that the petitioner is behind the bar since 27.5.1992 and more than three years and five months have elapsed but the trial has not been concluded as yet. The learned trial Court vide its report dated 9.4.1995 has reported that the challan in this case was received in the Court of Session on 9.7.1992. Supplementary challan was submitted on 3.3.1993 and report of the Forensic Science Laboratory was attached. Thereafter, the judicial file was summoned by this Court in connection with bail petition of co-accused and the file was received back by the learned trial Court on 25.1.1994. The complainant moved an application for summoning Muhammad Iqbal accused who had been placed in Column No. 2. The learned trial Court summoned him. He did not appear and his warrants of arrest were issued which could not be served and ultimately on the statement of the process-server recorded on 17.1.1995, the case of the co-accused, was separated under section 512, Cr.P.C. The statements under section 161, Cr.P.C. were distributed to the accused persons on the said date. The case was adjourned to 24.1.1995 but the charge could not be framed as the Court time was over. On 8.3.1995 the charge was framed and the evidence was summoned for 28.3.1995 on which date the Presiding Officer was on leave and the case was adjourned to 2.5.1995 on which date Mr. Ejaz Ahmad Hashmi, Advocate filed his Vakalatnama on behalf of the accused and the case had to be adjourned as no P.W. was present. The case was adjourned to 30.5.1995. Again on this date no P.W. was present. On 13.6.1995 two P.Ws. were present but their statements could not be recorded as the Deputy District Attorney was on leave. On the adjourned date i.e. 27.6.1995 case could not proceed as the learned defence counsel was indisposed and the case was adjourned to 13.7.1995 on which date the accused engaged another counsel and the case was adjourned to 24.7.1995. On this date, two P.Ws. were present but their statement could not be recorded as learned counsel for the parties were busy before the High Court. The case was adjourned to 9.8.1995 on the request of the parties and on this date the P.Ws. were present but their statements could not be recorded as the complainant's counsel and the D.D.A. were not present. The case was adjourned to 3.10.1995. 4. The break-up of the adjournments granted by the learned trial Court shows that the delay in trial was not entirely attributable to the accused party. It is not denied that the commission so appointed by the learned Civil Court was to visit the spot to report about the factum of possession qua which both the parties had conflicting claims before it. The prosecution case is that with a view to show their possession, the accused party attempted to irrigate a portion of the land and when the complainant party asked them to desist from taking forcible possession, they resorted to firing. Fatal shot received by Yar Muhammad (deceased) is attributed to the petitioner and as per the F.I.R. he also fired two more shots which hit Hayat Muhammad injured. Under sub-para, (b) of third proviso to section 497(1) an accused is entitled to bail if:- "who, being accused of an offence punishable with death has been detained for such offence for a continuous period exceeding two years and whose trial for such offen_e has not be concluded." However, the afore-referred proviso is not applicable "to previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal." The question as to who is a desperate person within the meaning of the afore-referred provision came up for consideration before the Honourable Supreme Court in Moundar and others v. The State PLD 1990 SC 934 (941) and the Court held as under: - "The provision under consideration here is a proviso to the same subsection, and, therefore, it will be reasonable to construe it in the same manner authorizing a Court to take into consideration the evidence collected by the prosecution for purposes of determining whether the accused is a criminal of the categories prescribed therein. Of course the Court can take into consideration and indeed in most of the cases it will take into consideration other materials produced by the prosecution in ordur to show that the case falls within the prohibitions contained in the 4th proviso." 5. Analysing the role attributed to the petitioner in the light of the criterion laid down by the august Supreme Court referred above, the petitioner alongwith others armed with a gun prima facie thwarted the process of the Court by attempting to take forcible possession of the land in question with a view to show their possession before the commission appointed by the Civil Court who was to visit the spot that day and in doing so he not only fired a fatal shot at the deceased but also fired at Muhammad Hayat injured. This conduct of the petitioner would prima facie make him a desperate person to bring his case within the ambit of fourth proviso to section 497, Cr.P.C. That being so, he is not entitled to be released on bail. The petition is, therefore, dismissed. (M.A.A.) Bail refused

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1908 Present: ahmad saeed awan, J MUHAMMAD ASLAM and others-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 205/Q of 1995, decided on 6th December, 1995. Criminal Procedure Code, 1898 (V of 1898)- —-Ss. 435, 439, 439-A & 173--Penal Code (XLV of 1860), S. 324/3S7/ 148/149/109-Revisional jurisdiction of Sessions Judge-Accused persons were arrested and sent to judicial lock-up—Police investigation found accused persons innocent and required Ilaqa Magistrate to discharge them and Magistrate concurring with police report under S. 173, Cr.P.C. discharged accused persons-Complainant filed revision against order of Magistrate and Additional Sessions Judge, accepting revision, directed police to place names of accused persons in column No. 2 of challan- Magistrate while discharging accused persons concurring with police report submitted under S. 173, Cr.P.C. being not inferior Criminal Court within meaning of S. 435, Cr.P.C. order passed by Magistrate was not revisable—Order passed by Sessions Judge was set aside and that of Magistrate was restored. [P. 1910] A CM. Latif, Advocate for Petitioners. Malik Muhammad Akram Khan Awan, Advocate for the Complainant. Mr. Waji-ud-Din Tariq, Advocate for the State. Date of hearing: 6.12.1995. order Muhammad Aslam and six others have filed this petition under section 561-A, Cr.P.C. to seek setting aside of the order, dated 14.5.1995 passed by the learned Additional Sessions Judge, Bhalwal, District Sargodha as being illegal, void and beyond jurisdiction. 2. The facts, in brief, are that a case F.I.R. No. 45/1995 under section 324/337/148/149/109, P.P.C. was registered with Police Station Bhalwal against the petitioners at the instance of respondent No. 1. The petitioners were arrested and sent to judicial lock-up. During the investigation they were found innocent and the police requested Ilaqa Magistrate to discharge the petitioners. The learned Magistrate concurring with the police report, discharged them. Respondent No. 1 filed revision petition against the order of the Magistrate and the learned Additional Sessions Judge while accepting the revision petition directed the police to place the names of the petitioners in column No. 2 of the challan, hence this petition. 3. Learned counsel for the petitioners contends that the order of the Magistrate discharging accused on police report under section 173, Cr.P.C. is not revisable. According to him, the order of the learned Additional Sessions Judge is against the principle ofaudi alterant partem. 4. Conversely, learned counsel for respondent No. 1 argued that the learned Additional Sessions Judge in revision can interfere in such like orders bearing judicial orders. He further contended that the petitioners have complete knowledge of the execution of the revision petition and intentionally did not appear and the order passed by the learned Additional Sessions Judge is legal one and the principle of audi alteram partem is applicable. Learned counsel for the respondents in support of his submissions, relied on the cases PLD 1968 Lah. 537 and 1994 PCr.LJ 497. 5. I have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance. The controversy whether the order of the Magistrate discharging an accused on police report under section 173, Cr.P.C. is a judicial order and hence revisable or is an administrative order and not revisable has been set at rest by the Honourable Supreme Court of Pakistan in the case of Bahadar and others v. State and another PLD 1985 SC 62. It was held in the precedent that a Magistrate concurring with police report submitted under section 173, Cr.P.C. discharging accused and cancelling a criminal case does not function as a criminal Court and order of cancellation of criminal case for that reason is not amenable to revisional jurisdiction. The case relied upon by the learned counsel for the respondent Le. PLD 1968 Lah. 537 was also taken note of by the Honourable Supreme Court of Pakistan. The same controversy came under consideration before the Lahore High Court in the case of Waqar-ul-Haq alias Mithoo and others v. The State (PLD 1988 Lah. 336) wherein the learned Judge (as his Lordship then was) held that the order of Magistrate under section 173, Cr.P.C. for cancellation of F.I.R. is an administrative order and the Magistrate making such an order is not inferior Criminal Court within the meaning of section 435, Cr.P.C., as such, the order passed by him are not revisable. The controversy involved in this petition and set at rest by the Honourable Supreme Court and the Lahore High Court also came under consideration before the Peshawar High Court in the case of Muhammad Shamim v. All Gohar and 3 others 1990 PCr.LJ 1932. The learned Judge while relying on Supreme Court's decision in Bahadar's case observed as under:- "In other words, a Magistrate, while discharging an accused on a report of police under section 173, Cr.P.C., is not acting as a Court and his order is not revisable under section 439, Cr.P.C. Understood in this sense, if that order is not impeached, it does not stand as a bar to the remedy of filing a private complaint on the same facts with some additional allegations." 6. In view of the authoritative judgments of the Honourable Supreme Court and the High Courts, there is no course left open for me but to accept this petition. Accordingly, this petition is accepted. The order passed by the learned Additional Sessions Judge is set aside and that of Magistrate is restored. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1910 Present: SALEEM DlL KHAN, J. JANAS KHAN-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 901 of 1995, decided on 17th October, 1995. Criminal Procedure Code, 1989 (V of 1898)-- —S. 497--West Pakistan Foodstuffs Control Act (XX of 1958), Ss. 3 & 6- Bail, grant of—Allegations—Petitioner has not affixed price list in his shop and Magistrate caught red-handed selling at higher rate-Accused having already been sufficient reprimanded by remaining in jail for more than one month, it would meet ends of justice if he was released on bail, especially when case against accused did not fall within prohibition contained in S. 497, Cr.P.C. [P. 1911] A & B Sardar Aslam Afridi, Advocate for Petitioner. Mr. Fateh Muhammad Khan, Advocate for the State. Date of hearing: 17.10.1995. judgment Janas Khan, petitioner herein, has come to this Court with the prayer that he be released on bail in case F.I.R. No. 251, dated 15.9.1995 registered at Police Station, Kotwali, Peshawar under sections 3 and 6, West Pakistan Foodstuffs (Control) Act, 1958. Petitioner was refused bail by the learned M.I.C. through his order, jjated 19.9.995. He then preferred his application in the Court of learned Sessions Judge, Peshawar for the grant of bail but met with no better fate and the same was dismissed through order, dated 26.9.1995. 2. The case of the prosecution as against the present petitioner is that he is a butcher by profession and runs the shop of meat selling. It is stated that Mr. Masoodur Rehman Sethi, Special Magistrate was on routine checking of essential commodities and during this checking he found that the petitioner had not affixed the price list in his shop. It is also alleged that the petitioner was caught red-handed by the said Magistrate while selling meat on higher rate than the one prescribed by the Government. He was, therefore, arrested and the prebeiit case registered against him. 3. So far as the charges against the present petitioner are concerned, this Court would refrain to dilate upon the merits of the case because it may prejudice the proceedings at the trial. Nevertheless there is something more to be said about the quantum of sentence prescribed for the offences the petitioner has been charged with. 4. A perusal of section 3 and 6 of the Foodstuffs (Control) Act, 1958 indicates that section 3 empowers the Government to pass any reasonable order for controlling the sale, purchase and supply of the essential commodities and the contravention of any such order has been made punishable under section 6 of the Act. A perusal of section 6 would indicate that the maximum sentence prescribed for contravention of section 3 has been determined as 3 year or fine or both. While taking into consideration this aspect of the case this Court is of the firm view that the petitioner has already been sufficiently reprimanded by remaining in jail for more than one month. Therefore, it would better meet the ends of justice if he is released on bail because the case against him does not fall within the purview of prohibition contained in section 497, Cr.P.C. 5. Resultantly, this petition is allowed and Janas Khan son of Waris Khan, petitioner herein, shall be released on bail if he furnishes bond in the sum of Rs. 1,00,000 (Rupees one hundred thousands) with two sureties each in the like amount to the satisfaction of the Dlaqa/Duty Magistrate. (M.A.A.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1911 Present: rana muhammad arshad khan, J. IFTIKHAR AHMAD and others-Appellants versus STATE-Respondent Criminal Appeal No. 1051 of 1992, decided on 8th October, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/149, 449 & 148--Witness-Interested witnesses-Interested or partisan witnesses deposing on capital charge cannot be relied upon unless corroborated by some unimpeachable, reliable and trustworthy source or strong circumstances which might remove inherent doubt attaching to such interested or partisan witnesses. [P. 1919] A (ii) Criminal Trial— -—Tainted evidence-Corroboration-Tainted piece of evidence cannot corroborate other tainted piece of deposition. [P. 1919] B (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/149 449 & 148—Appreciation of evidence—Where the evidence of eye-witness has been disbelieved by the Trial Court for some of the acquitted accused, the same cannot be relied upon to convict the other accused persons in the absence of independent corroboration through a reliable source. [P. 1921] C - (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/149, 449 & 148-Appreciation of evidence-Occurrence having taken place in a thickly populated village but none of its residents came ahead to depose independently-Medical evidence is not in consonance . with the ocular evidence, the recoveries of crime weapons from the accused had become doubtful-Ocular evidence was tained with animosity against the accused-Prosecution had withheld the most independent evidence-Occurrence had taken place in a manner different from that claimed by eye-witnesses who had not witnessed the same—Case of accused was at par with that of acquitted co-accused-Accused were acquitted on benefit of doubt in circumstances. [P. 1922 & 1923] D, E, F & G Mr. Ijaz Hussain Batalui and Akhtar Mi Qureshi, Advocates for Appellants. Mr. Nqjamul Hassan Gill, Advocate for the State. Syed Zahid Hussain Bokhari, Advocate for the Complainant. Date of hearing: 8.10.1995. judgment Iftikhar Ahmed (28), Abdul Sattar (25), Muhammad Shafique (17), Faqir Hussain (25), Babar Jamal (17), Muhammad Akram (20), Ibrar Ahmed (30), Abdul Jabbar (30), Muhammad Nawaz (26), Anwaar Khan (52), Mukhtar Ahmad (64), Jamal, Khoso (60), Ajmal Khan (55) and Aslam Khan '53) were tried, for committing the murder of Abdul Haq and Falak Sher, in an Indictment Exh. P.E. recorded on 20.8.1990 at 2 p.m. by Liaquat Ali, S.I./S.H.O. (P.W. 12) on the statement of Maqbool Ahmed (P.W. 6), the real brother of the deceased regarding the occurrence which took place on the same day at 12 noon in village Kalukey at a distance of seven miles from the Police Station, Saddar, Sheikhupura. 2. The learned Additional Sessions Judge vide his judgment, dated 30.11.1992 convicted the appellants under section 148, P.P.C. and sentenced them to three years' R.I. each; further convicted them under section 449, P.P.C. and sentenced them to five years' R.I. each on two counts with a fine Rs. 5,000 each on two counts and in default of payment thereof to undergo further one year's R.I. each on each count. They were further convicted under section 302/149, P.P.C. and sentenced to life imprisonment each on two counts with a fine of Rs. 20,000 each on two counts and in default of payment of fine to undergo further two years' R.I. each on each count. The learned trial Court also directed that the fine, if realised, shall be defrayed to the legal heirs of the deceased as compensation to the extent of one half. The sentences were ordered to run concurrently and the benefit of section 382-B, Criminal Procedure Code was also extended to the appellants. Abdul Jabbar, Muhammad Nawaz, Anwaar Khan, Mukhtar Ahmed, Jamal Khan, Ajmal Khan, and Aslam Khan were given the benefit of doubt and acquitted by the learned trial Court. 3. The convicts have assailed the legality of the judgment through this appeal. 4. The facts, in brief, of the prosecution case are that on 20.8.1990 Abdul Haq, deceased, brother of the complainant, had gone to the shop of Abdul Hameed to fetch ice but when he did not return for quite some time, the complainant, himself, went to inquire and found his brother sitting and talking to the aforesaid Abdul Hameed. All of a sudden, Iftikhar Ahmed, Faqir Hussain, Muhammad Nawaz, Muhammad Shafique and Abdul Sattar armed with rifles, Akram Khan, Ibrar Hussain, Abdul Jabbar and Babar armed with .12 bore guns reached there while raising Lalkara and Muhammad Nawaz accused exhorted his co-accused to take revenge of the murder of Zubair Khan whereupon Abdul Haq deceased was caught hold of by Muhammad Shafique accused and dragged out of the shop. Abdul Haq, after getting rescued, ran towards his house. The aforesaid accused while raising Lalkara ran after him. The deceased on his way to his house, entered into the house of Karam Elahi and through the stairs reached the top roof of the house of Channan Din. All the aforesaid accused followed him to the roof. The complainant also continued running after them while raising alarm. Iftikhar Ahmed reached on the top of the roof of the house of Channan Din, fired a shot from his rifle which struck Abdul Haq towards the front left side of his head. After sustaining fire-arm injury Abdul Haque fell down. Ibrar Hussain fired with his gun hitting Abdul Haque, while he was lying, on the lower part of his right leg. Abdul Jabbar fired a shot from his gun on the right buttock of the deceased. The accused when satisfied that Abdul Haque had died, ran out from the same stairs. Falak Sher was statedly present in the house of his uncle Jamal Din. Hearing about the aforesaid incident, he rushed towards his house and when he reached near the Baithak of Anwar Kumhar the accused encountered him. Nawaz Khan again exhorted his companions to do away with Falak Sher also. He himself fired with his rifle hitting on the left side of the neck of Falak Sher deceased. Muhammad Shafique, fired a shot from his rifle hitting Falak Sher on the left side of his chest. Falak Sher fell down. Then Abdul Sattar fired with his rifle which struck the jugular vein of Falak Sher deceased. Akram accused fired a shot hitting Falak Sher on his back. Babar Khan fired with his gun striking the right shoulder of Falak Sher. Faqir Hussain fired with his rifle hitting the deceased on the right upper arm. Iftikhar fired a shot which hit "" Falak Sher on his left wrist. Some of them continued firing in the air to create terror so as to prevent anybody coming near them. On seeing number of people gathered at the place of occurrence, the accused ran away from the spot. Falak Sher died instantaneously. The motive behind the murder of Abdul Haq and Falak Sher was that a case of committing the murder of Zubair Khan, nephew of Muhammad Nawaz accused was registered about 8/9 years ago against ^ Abdul Haque, deceased and another. All the accused while wreaking vengeance of the murder of Zubair Khan in consultation with each other and on instigation of Anwar Khan, Haji Mukhtar Khan, Jamal Khan, Ajmal Khan and Aslam Khan had committed the murder of Abdul Haque and Falak Sher, the real brothers of the complainant. 5. Liaquat Ali, S.I/ S.H.O. (P.W. 12) after recording the F.I.R. assumed the investigation and proceeded to the place of occurrence. He took the dead body of Abdv>l Haq >n custody, prepared the inquest report Exh. P.N. and the injury statement Exh. P.O. He collected the blood-stained earth form the place of occurrence. It was taken into possession vide recovery memo. Exh. P.F. Site Plan Exh. P.T. was prepared. He, therefore, proceeded to the place of occurrence of the murder of Falak Sher, prepared the inquest report Exh. P.Q. and the injury statement Exh. P.R. The dead bodies, escorted by Shaukat Ah' (P.W. 1) and Sarfraz Hussain (P.W. 9) Constables, were despatched to the mortuary for post-mortem examination. The blood­ stained search was secured vide memo. Exh. P.G. Rough sketch Exh. P.U. of the place of the second murder was prepared. Last worn clothes of Falak Sher, Shalwar P. 1, Shirt P. 2, Bunyan P. 3 were sealed in phial and the last worn clothes of Abdul Haq, deceased Shalwar P. 4, Shirt P. 5, Bunyan P. 6 were produced before him and he vide memo. Exh. P.A. and Exh. P.B. respectively took into possession. On 25.8.1990 he arrested the accused Faqir Hussain, Babar Jamal, Abdul Jabbar, Abdul Sattar, Muhammad Shafique, Akram Khan, Iftikhar Ahmed, Ibrar Ahmed and Muhammad Nawaz. Jabar and Sattar while in custody led to the recovery of crime weapons gun P. 7 and rifle P. 8 from their residential place and the same were taken into possession vide recovery memos. Exh. P.H. and Exh. P.I. respectively. He recorded the statements of the P.Ws. under section 161, Cr.P.C. The investigation, thereafter, was carried out by Muhammad Sharif S.I. (P.W. 10), who effected the recovery of the crime weapon from Muhammad Shafique and Iftikahr on their pointing out from their residential places, gun P. 9 and the gun P. 10 were secured vide recovery memos. Exhs. P.J. and P.K. respectively. He also recorded the statements of the .Ws. under section 161, Cr.P.C. 6. Dr. Sajid Bashir, Medical Officer, D.H.Q. Hospital Sheikhupura (P. W. 11) had conducted the post-mortem examination on the dead body of Abdul Haq, deceased, on 21.8.1990 and found the following injuries:- (1) A lacerated wound 3.5 c.m. x 3. c.m. with blackening of edges at middle of forehead near hair margin damaging skull, brain matter was protruding out of wound. (2) Fire-arm wound of entry 2.5 c.m. x 2.5 c.m. with burning of edges at front of abdomen just left to the mid line 4 c.m. below umbilicus damaging greater omentum, small and large intestines, blood vessels of that particular region, right hip bone and made exit wound 4 c.m. x 3.5 c.m. at right high upper and outer part. (3) Three fire-arm wounds of entry each 1 c.m. x 1 c.m. at right leg upper and front part in area 6 c.m. x 4 c.m. making one fire-arm wound of exit at the back of right leg lower part. Two pellets were removed from deep skin of right leg back and middle part. There was no bony injury detected. In the opinion of doctor the death occurred due to severe shock and haemorrhage resulting into cardio pulmonary failure and that injuries Nos. 1 and 2 individually and all injuries collectively were sufficient to cause death of a person in ordinary course of nature. According to him the probable time that elapsed between injuries and death was immediate while that between death and post-mortem examination was 20 to 36 hours. 7. On the same day at 1.40 p.m. Dr. Sajid Bashir, Medical Officer had also conducted the post-mortem examination on the dead body of Falak Sher and found the following injuries: - (1) Fire-arm wound of entrance at front of neck upper part in mid line measuring 2 c.m. x 2 c.m. with blackening of edges making wound at left side of neck upper and outer side measuring 3 c.m. x 2 c.m. damaging trachea, oesophagus and big blood vessels of that region. (2) Fire-arm wound of entrance 3.5 c.m. with blackening and tattooing of edges of right shoulder front part making exit wound 5 c.m. x 4 c.m. at right upper arm outer and upper part damaging muscles, blood vessels and upper part of numerous bone (fracturing the bone). (3) Fire-arm wound of entrance 2 c.m. x 2 c.m. with blackening of edges at left front of chest upper part inner to left nipple involving small part of nipple also. Fire-arm damaged blood vessels of the region left 3rd and 4th ribs from front left lung, heart, 2nd, 3rd and 4th left ribs from behind, also some part of 3rd thoracic vertebrae damaged. The fire-arm made exit at left back of chest upper part 4 c.m. x 4 c.m. near mid line. A small piece of bullet was < removed from left chest wall back part (posterior chest wall). (4) Four fire-arm wounds of entrance each 1 c.m. x 1 c.m. in area 9 c.m. x 7 c.m. at back of chest middle part just left to mid line damaging left lung, heart blood vessels. All four pellets were recovered from tissues of lefting lung. (5) A fire-arm abrasion 2 c.m. x 2 c.m. at left fire-arm lower and outer part. In his opinion death occurred due to severe shock and profuse haemorrhage leading to cardio respiratory failure. Injuries Nos. 1, 3 and 4 individually and all injuries collectively were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was immediate and between death and post-mortem examination was 20 to 36 hours. 7. On the completion of the investigation, all the accused persons were challaned, placing Faqir Hussain, Babar Jamal, Muhammad Akram, Ibrar Ahmed, Muhammad Nawaz, Anwaar Khan, Haji Mukhtar Ahmed, Jamal Khan, Ajmal Khan and Aslam Khan in Column No. 2. 8. The prosecution, in order to substantiate its case, produced twelve witnesses in all. Shaukat Ali, Constable (P.W. 1) had escorted the dead bodies alongwith Sarfraz Hussain, Constable. Muhammad Ibrahim son of Mehr Din (P.W. 2) had identified the dead bodies of the deceased before the post-mortem examination. Muhammad Rafique (P.W. 3), Moharrir of the police station was handed over the sealed parcel containing blood-stained earth and he had kept the same in the Malkhana of the police station intact. uhammad Riaz (P.W. 4) draftsman had prepared the site plan Exh. P.C. and Exh. P.C. /I, Exh. P.D. and Exh. P.D/1 of both the murders under the instructions of the police and on the pointation of the witnesses. Sabir Ali (P.W. 5) deposed to the conspiracy hatched by Mukhtar, Jamal, Aslam, Ajmal Khan and Anwaar while sitting in the Baithak of Mukhtar Ahmed. Maqbool Ahmed (P.W. 6) reiterated his version as he had given in the F.I.R. Channan Din (P.W. 7) and Jamal Din (P.W. 8) furnished the ocular account in support of the version of the complainant giving the details of the occurrence of both the murders. Sarfraz Hussain, Constable (P.W. 9) had also escorted the dead bodies alongwith Shaukat Ali, Constable. Muhammad Sharif (P.W. 10), S.I./S.H.O. had effected the recovery of crime weapon from Muhammad Shafique and Iftikhar while in police custody. Dr. Sajid Bashir (P.W. 11) had performed the autopsy upon the dead bodies of Abdul Haq and Falak Sher deceased. Liaquat Ali (P.W. 12)/Inspector, S.H.O. gave the details of the investigation conducted by him. 9. On the conclusion of the prosecution evidence, the same was put to the accused persons who refuted the allegations levelled by the prosecution and professed their innocence. They were examined under section 3-42, Cr.P.C. However, none of the appellants volunteered to make the statement on oath under section 340(2), Cr.P.C. in disproof of the charges and the allegations against them. 10. I have carefully considered the arguments advanced by the learned counsel for the respective parties and have gone through the entire evidence on the record with their assistance. I have also given my anxious considerations to the material and the circumstances contradictions and improbability pointed out from the evidence of the witnesses. I may refer to the evidence brought on the record by the prosecution in order to appreciate the worth of it. 11. The prosecution in support of the ocular account produced Maqbool Ahmed (P.W. 9) lodger of the F.I.R. Exh. P.E. and Channan Din (P.W. 7) and Jamal Din (P.W. 8) who also deposed with regard to the recoveries. 12. Maqbool Ahmed (P.W. 6) lodged the F.I.R. Exh. P.E. alleging that he had sent his brother Abdul Haq deceased to fetch the ice from the shop. He came out from the house to see as to why Abdul Haq had not returned. He saw Abdul Haq sitting inside the shop talking with the shopkeeper Abdul Hameed alias Muhammad Ibrahim (P.W. 2). He had hardly reached there when Iftikhar, Faqir Hussain, Abdul Sattar, Muhammad Shafique and Muhammad Nawaz armed with rifle, and Ibrar, Abdul Jabbar, Akram and Babar armed with .12 bore guns reached there and on the exhortation of Nawaz, Muhammad Shafique caught hold of Abdul Haq from his shirt dragging him out of the shop. Abdul Haq got himself rescued in order to save his life, ran towards his house. He was chased. The complainant also followed. Abdul Haq through the stairs of the house of Karam Ellahi, reached the. roof of the house of Channan Din, P.W. The complainant, Muhammad Siddique (given up P.W.), Channan Din and Jamat Din (P.Ws. ) climbed the roof through the stairs of the house of Channan Din P.W. He gave the details of firing of the accused persons hitting the deceased Abdul Haq attributing different injuries to Iftikhar, Faqir Hussain, Ibrar and Abdul Jabbar. Falak Sher another brother of the complainant was, thereafter, attacked by the accused within the view of the P.Ws. All of them except Jabbar and Ibrar resorted to firing which struck the deceased Falak Sher. He also narrated the motive behind the murders stating that a case was registered against Abdul Haq and Abbas regarding the murder of Zubair Khan whereas the deceased Falak Sher and the com­ plainant were not named in that case. Another case under section 307, P.P.C. was also got registered against Abdul Haq, Manzoor and Lai Din, father of the complainant. In his cross-examination he stated that he had not been living permanently in that village. He was a labourer and was doing his work while moving from place to place. He admitted that he had visited this village off and on. In an answer to a question he stated that the house of Abdul Haq, deceased, falls prior to the house of Channan Din. The village is big one and thickly populated. Nobody was attracted to the place of occurrence. None had appeared during the investigation to support the prosecution version. He further stated that the people had gathered there but none of them had seen the accused running away from the place of occurrence. On the other hand, the people had asked them as to what had happened. 13. The next witness who provided the ocular account is Channan Din (P.W. 7) He testified the statement of the complainant and stated that he was present in the house alongwith his brother Jamal (P.W. 8). He heard the noise and tried to come up through the stairs. Muhammad Siddique (given up P.W.), Maqbool Ahmed (P.W. 6) also had gone upstairs with them. He also gave the details of the firing made by the accused in corroboration of the statement of the complainant. He stated that they had followed the accused and also witnessed the second occurrence. In cross-examiantion he stated that Jabbar had fired hitting Abdul Haq on right shoulder. He, in an answer to a question, stated that he had not attested any document during the investigation. 14. The third eye-witness examined by the prosecution was Jamal (P.W. 8), who also deposed, corroborating the other ocular evidence. However, he stated that the crime empties were not seen by him lying at both the places of the occurrence. There were five Lambardars and nine Councillors in the village but the police officer did not ask any one of them to associate with the investigation. He in cross-examiantion also insisted that the injury sustained by Falak Sher, deceased was on the right arm and right buttock and on the left side of the neck and the injuries suffered by Abdul Haque on the lower part of his right leg were not exit wounds. 15. Muhammad Ibrahim alias Abdul Hameed (P.W. 2), the witness of genesis of occurrence had identified the dead bodies before the post­ mortem examination. He stated in his cross-examination that he was not present in the shop at the relevant time. 16. Liaquat Ali, S.I./S.H.O. (P.W. 11), investigated the case and prepared all the necessary papers. He, in his cross-examination stated that he had, after thorough-investigation, placed Faqir Hussain, Babar Khan, Jamal Khan, Akram, Ibrar, Muhammad Nawaz, Anwaar Khan, Haji Mukhtar Khan,,Ajmal-Khan and Aslam Khan in Column No. 2 of the challan as he coiuld not find sufficient material to forward their case for trial and he had found them innocent whereas Iftikhar Ahmed, Abdul Jabbar, Abdul Sattar and Muhammad Shafique were placed in Column No. 8 of the challan. He, in an answer to a question, stated that the dead body of Abdul Haq was lying on the roof of Channan Din and Chaddar had been spread beneath his dead body. He further stated that it was not lying on the cot. He stated that in Column No. 1 of the inquest report Exh. P.N. he had not shown cot but in the last column he had shown the same. He categorically stated that, in fact, the dead body was lying on the cot. He also did not mention specifying the places or the houses where the dead bodies were lying at the time of his arrival at the spot. 17. From the above survey of the evidence of the prosecution, it is clear that the motive for the double murder in this case was asserted to be a previous murder of Zubair Khan, nephew of Muhammad Anwar, acquitted accused, by Abdul Haq deceased and another. This motive is obviously double-edged weapon. On the one hand, it could be a motive for murder of two deceased persons. It would, on the other hand, also be a cause of false involvement of the appellants and the acquitted accused persons in this case. The prosecution witnesses alleged to be the eye-witnesses of the occurrence viz., Maqbool Ahmed (P.W. 6), Channan Din and Jamal (P.Ws. 7 and 8), respectively all the three are admittedly dose relatives of the deceased. Maqbool Ahmed is a real brother, Channan Din and Jamal Din are the real paternal-uncles of the deceased. The motive asserted by the prosecution for the murder in this case proved the pre-existing enmity between the two parties. All the three eye-witnesses being closed relation of the deceased are thus interested witnesses and had inimically deposed towards the accused persons. The principle of prudence which has virtually matured as a principle of law by now, is well-settled by way of authority of our Supreme Court that in case of interested witnesses deposing on capital charge. They cannot be relied upon unless it is corroborated through some unimpeachable, reliable and trustworthy source or strong circumstances that might remove inherent doubt attaching to evidence of such interested or partisan witnesses. The evidence regarding the motive has come on the file from the mouth of the same witnesses who testimony requires corroboration through independent and trustworthy source, especially when the testimony of eye-witnesses is tinged with hatred against the appellants. The evidence pertaining to the motive, in the circumstances of the case, cannot be relied upon as it is settled principle of law that one tainted piece of evidence cannot be taken as corroborative to other tained piece of deposition. The prosecution has mainly relied upon the testimony of the eye-witnesses. But it is strange to note that Muhammad Siddique P.W. was shown to be present alognwith Channan Din and the complainant on the roof of Channan Din at the time of the murder of Abdul Haq. The said P.W. was neither relative of the complainant nor he was inimical to depose against anybody; withholding such evidence is indicative to draw the inference that he had not surrendered to depose in support of prosecution version. It has been held in case titled Wasiullah v. Khizar Alt and others PLD 1963 SC 25 that where there is a strong motive to include as many persons as accused as possible and some of them have been found to be falsely implicated, it definitely leads to a person of ordinary prudence to the suspicious circumstances and the possibility of false implications of other accused cannot be ruled out. It is prosecution's own case that the occurrence took place in the midday within the densely populated village but it is strange to note that no independent witness could be produced by the prosecution to support its version. Rather Maqbool Ahmed (P.W.6) in answer to a question admitted that the people of the village instead of their version, supported the versions of the appellants during the investigation. Muhammad Siddique seems to be an independent witness cited in the challan but he too was given up by the prosecution as being unnecessary. Obviously it attracts the provision under Article 129, illustration (g) of the Qanun-e-Shahadat Order, 1984 reads as follows: - (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;" 18. It makes evidently clear that had he been produced, he would have not supported the prosecution version. (A perusal of the record indicates that the name of Ibrahim (P.W. 2) has inadvertently been mentioned in the statement of D.D.A. instead of Muhammad Siddique). 19. The genesis is that the occurrence took place in the shop of Ibrahim known as Abdul Hameed (P.W. 2) from whose shop Abdul Haq deceased was alleged to have been dragged out by Muhammad Shafique, accused. He appeared as P.W. 2 but he did not support the prosecution version. The story that Abdul Haq deceased ran from the said shop and the accused persons equipped with fire-arms were chasing him; that he went to he roof of the house of his uncle Channan Din through the house of Karam Ellahi; that he was killed at the said roof by the accused persons is absolutely improbable and unnatural in view of the admitted circumstances that the house of Abdul Haq, deceased, fell prior to the house of Channan Din and next to Karam Ellahi as per statement of Maqbool Ahmed (P.W. 6). 20. It is not understandable as to why Abdul Haq deceased did not enter into his own house which fell on the way, and instead he entered in the house of Karam Ellahi and using the stair-case reached all the way to the roof of Channan Din P.W. Again it is also highly improbable that the accused persons would have chased Abdul Haq, deceased, right up to the roof of Channan Din and not opened fire upon the deceased in the street itself. The astonishing feature of the case is that, according to Maqbool Ahmed (P.W. 6), the complainant, real brother of Abdul Haq deceased had been running after the accused but none of the accused turned up to fire at him. Moreover a large number of persons armed with deadly weapons after killing two brothers, could have easily done away with the complainant and two other eye-witnesses but they did not receive even a single injury at the hands of the assailants. All this leads one to believe that the witnesses were not present at the time of occurrence and the story seems to have been concocted after due deliberation. 21. The trial Judge very carefully discussed the injures meted to e£ch accused separately in Paras. Nos. 50 to 61 of his judgment and proceeded acquit Abdul Jabbar and Nawaz accused on the very cogent grounds that according to the medical evidence of Dr. Sajid Bashir (P.W. 11) nd that injuries attributed to the said two accused were merely exit wounds and not independent injuries but it is strange that he believed the ocular evidence as to the injuries caused by each of the accused although there were injuries meted out to some of the appellants which were also proved by the same medical evidence to be the exit wound. The injury meted out to Babar Jamal appellant to have been caused by him to Falak Sher deceased on the right shoulder front part making exit wound at right upper arm which was ascribed to Faqir Hussain appellant and the same cannot be, by any stretch of imagination, said an independent injury. Similarly the injury ascribed to Shafique Hussain appellant, to have been caused by him to Falak Sher, deceased, was also similarly proved to be the exit wound on the left side of front of chest upper part inner to left nipple making exit wound at left below of chest upper part. This injury was attributed to Ibrar Khan which was not an independent injury, but Faqir Hussain and Ibrar Khan appellants were convicted by the trial Court on the same set of evidence on which Abdul Jabbar and Muhammad Nawaz, accused, were acquitted. The ground which rightly prevailed with the trial Court for acquitting Abdul Jabbar and Muhammad Nawaz, accused, was overlooked in the case of Faqir Hussain and Ibrar Ahmed Khan. Although the principle contained in the maxim "Falsus in uno falsus in omni bus" has been held not to be of universal application yet it has been ruled by the Supreme Court that where the evidence of eye-witnesses had been disbelieved by the trial Court for some of the acquitted accused, the same could not be relied upon the convict the other accused persons in the absence of independent corroboration through a reliable source. In the present case, such corroboration is patently missing. The reliance can safely be placed on Rehmat and others v. The State PLD 1959 SC (Pak.) 109. The relevant para, reads as follows:- "In our opinion, the approach of the learned Judges to the appraisement of the evidence of individual witnesses was not based upon a full comprehension of all the circumstances appearing in the case, from the making of the initial report, up to the according of evidence at the trial. When the evidence of the eye-witnesses is examined in the light of all the circumstances which we have enumerated, a possibility clearly arises that the implication of some or all of the eleven persons accused in the case was based, not upon direct knowledge of their participation, but upon conjecture aided by the motive of revenge. Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye-witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g., a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No circumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reasonable doubt by the prosecution evidence." 22. This principles was, thereafter, followed in the following authorities:- (1) Bagh Alt and 4 others v. State PLD 1973 SC 321. (2) Manchia and 2 others v. The State PLD 1976 SC 695. (3) Mushtaq Ahmed and others v. State 1991 SCMR 2270. Another important feature of the case which was overlooked by the trial Court was that Liaquat Ali, Inspector/S.H.O. (P.W. 12) made a strange contradictory statement in his cross-examination. He stated that when he reached the spot the dead body of Abdul Haq was not lying on any cot but in the same breath the deposed "it is correct that in the last column of the inquest report Exh. P.N. I had shown that the dead body of Abdul Haq was lying on the cot. The dead body was lying on the cot when I visited the spot." But it is not the case of prosecution that Abdul Haq, deceased, had spread himself on any cot on the roof of Channan Din. This indicates that cogent efforts had been made by the complainant side for concocting the story. In view of the above discussion, I am of the considered view that the prosecution had failed to prove the charge against the appellants beyond any reasonable doubt. The case of the appellants is in no way distinguishable from the cases of Abdul Jabbar and Muhammad Nawaz, the acquitted accused. There is no independent corroboration or the circumstance for sustaining the conviction of the appellants on the very evidence on the basis of which two accused persons had been acquitted. The reliance can very safely be placed on Elahi Bux v. The State 1982 SCMR 57 and the elevant portion of which reads as follows:- "No doubt it is open to the Court to sift grain from the chaff. But before relying only certain portions of the statements of the prosecution witnesses who have deliberately perjured themselves with regard to another portion of the prosecution story, the Court must of necessity seek unimpeachable and wholly independent evidence to corroborate the portion of their statements on which it wishes to rely." While summing up the case I have noticed that the occurrence statedly took place in the thickly populated village but none of the residents came ahead to depose independently. The medical evidence is not in consonance with the ocular evidence qua the four accused persons. So the recoveries of crime weapon from them have become doubtful. The ocular evidence was tainted with animosity against the appellants. The most independent evidence was withheld by the prosecution. The close and further scrutiny of the record is warranted to find out as to whether the occurrence had taken place in a manner as alleged by the eye-witnesses or whether there was nay possibility of the said occurrence having been taken place in some other manner when the case was seen in its perspective there is a reasonable possibility that the occurrence had not taken place in the manner in which the eye-witnesses claimed. The genesis of this occurrence is unclear. The minute scrutiny of the record leads to draw the inference that the occurrences had taken place in a different manner and unfortunate occurrences were not witnessed by the eye-witnesses. The upshot of the aforegoing discussion is that I am satisfied that the case of Muhammad Shafique and Ibrar Ahmed Khan is at par with the case of co-accused namely Muhammad Nawaz and Abdul Jabbar since acquitted and in this way grave doubts have arisen as to who had killed the deceased persons which makes the whole case of the prosecution as doubtful. Consequently, the appeal is accepted, the conviction and sentence awarded to the appellants are set aside and they are acquitted of the charge by giving them the benefit of doubt They shall be released forthwith from the jail if not required to be detained in any other criminal case. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C . ( Lahore ) 1923 Present: raja abdul Aziz bhatti, J. WAH CEMENT WORKS-Petitioner versus ABDUL KHALIQUE and another-Respondents Criminal Miscellaneous No. 775/CB of 1995, decided on 14th December, 1995. Criminal Procedure Code, 1898 (V of 1898)-- -S. 497(5)~Penal Code (XLV of 1860), S.302/34-Bail-Cancellation of~ Allegedly death caused by co-accused who was armed with a pistol whereas accused was empty-handed and only Lalkara had been attributed to him-- Concellation of bail of accused, in circumstances, was not appropriate because when bail was granted and discretion was used y Court of competent jurisdiction, then some special circumstances were needed to set aside bail order-In absence of anything special in order of Trial Court which could be taken into consideration for interference, petition of cancellation of bail was dismissed. [P. 1924] A Mr. Muhammad Asif Chaudhry , Advocate for Petitioner. Raja Saeed Akram , A.A.-G. for Respondents. ORDER Brief facts of the case are that a case F.I.R. No. 73, dated 10-2-1995 under section 302/34.P.P.C. was registered at Police Station Wah Cantt . On the report of Mst . Zohra Bibi against the two accused namely Nazir Ahmed and Abdul Khaliq . 2. According to the contents of the F.I.R. Mst . Zohra Bibi , being issueless adopted Muhammad Asghar as a son, when he was aged of 5/6 months. When he coming to his youth, he married with one Mst . Musarat Bibi . Abdul Khaliq and Nazir Ahmed were not happy on this marriage. In order to take revenge, allegedly on the night of occurrence, when Muhammad Asghar had repatriated to Pakistan after serving in Saudi Arabia , he was done to death by Abdul Khaliq and Nazir Ahmad accused. Nazir Ahmad was armed with a pistol, he made two fires which hit Muhammad Asghar deceased, who fell down on the ground and died at the spot. While Abdul Khaliq accused raised only Lalkara . Thereafter both the accused ran away from the spot. 3. During investigation both the accused were arrested. Nazir Ahmad applied for bail which was refused by the trial Court. While Abdul Khaliq was granted bail vide order, dated 5-9-1995. 4. Learned counsel for the petitioner seeks cancellation of bail granted to Abdul Khaliq co-accused on the grounds that both the accused committed lurking house-trespass; that on the basis of the facts mentioned in the F.I.R. both the accused have committed murder of Muhammad Asghar intentionally and with preplanning, as they came to the place of occurrence together; and that both are real brothers, as such, the motive is attributed to both of them. 5. On the other hand, cancellation of bail petition has been opposed by the learned counsel for the accused/respondent. According to him, Abdul Khaliq accused/respondent has been attributed only Lalkara . He had not caused any injury to the deceased. The trial Court has rightly granted the bail after due consideration of the facts and circumstances of the case. The bail order passed by the trial Court is not whimsical. 6. I have heard the arguments of the learned counsel for the parties and gone through the record minutely, especially order passed by the learned trial Court for granting bail to Abdul Khaliq , respondent No. 1. Admittedly, Abdul Khaliq was empty-handed. Only Lalkara has been attributed to him, which itself is sufficient to say, at this stage, that order passed by the learned trail Court is not liable to be set aside. Seeking cancellation of bail in the given circumstances is not appropriate. Though the arguments of the learned counsel for the petitioner has some weight but when bail is granted and discretion is used by the Court of competent jurisdiction then some special circumstances are needed to set aside the bail order. There is nothing special in the order of the learned trial Court to be taken into consideration for interference. Hence the petition for cancellation of bail is dismissed. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 1925 Present muhammad aqil mirza, J Mst. ISHRAT BIBI-Petitioner versus S.H. 0. --Respondent Writ Petition No. 3681 of 1996, decided on 5th March, 1996 (i) Constitution of Pakistan , 1973- —-Art. 199-Penal Code (XLV of I860), S. 302-Criminal Procedure Code (V f 1898), S. 156-Constitutional jurisdiction-Interferecne in police investigation-Investigation of a criminal case lies within the statutory functions of the police under S. 156, Cr.P.C.-High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution cannot direct police to change the course of investigation or adopt a particular course of investigation to discover the truth or otherwise to control the investigation. [Pp. 1926 & 1927] C (ii) Criminal Procedure Code, 1898 (V of 1898) -- —S. 154-First Information Report-Evidentiary value: First Information Report recorded by the complainant is never a gospel truth and the ccurrence might not have taken in the manner and by the persons mentioned therein. [P. 1926] D (iii) Penal Code, 1860 (XLV of I860)-- -S. 302-Criminal Procedure Code (V of 1898), Ss. 154 & 164~Constitution of Pakistan CJ973), Art. 199-Constitutional Petition seeking direction for Magistrate to record the statement of the complainant/petitioner under S. 164, Cr. P. C.-F.I.R. got registered by the com-plainant was not a gospel truth and the occurrence might not have taken place exactly in the manner and by the persons mentioned therein-Police was duty bound to discover the truth by joining in the investigation such persons who were reasonably suspected to have some hand in the commission the crime or who could give information to facilitate its unearthing-View of the Investigating Officer that triple murder appeared to have been committed by more than one person was not fanciful or arbitrary-- Unless the complainant was interested to save some persons of the family, there was no reason why should she have insisted for the recording of her statenient under S. 164, Cr.P.C. or that the accused nominated in the F.I.R. alone be considered as the only culprit by the police-Constitutional petition lacked bona fides and appeared to have been filed at the instance of other persons who had been or sought to be joined in the investigation by the police and the same was dismissed in limine accordingly. [P. 1926] A & B Ch. Muhammad Abdullah, Advocate for Petitioner. . order This petition has been filed for issuance of a direction in exercise of the Constitutional jurisdiction of this Court, inter alia, to the effect that the Resident Magistrate should record the statement of the petitioner under section 164, Cr.P.C. 2. The petitioner is a complainant of F.I.R. No. 12/96 registered at Police Station Badrian, District Sialkot in a triple murder case. Liaquat All has been named by the petitioner in the F.I.R. as the only person who committed murder of her husband Muhammad Nawaz, his brother Ghulam Abbas and Mst. Rukhsana Bibi wife of Ghulam Abbas. It is alleged in the petition that the Investigating Officer has enlarged the inquiry and has joined in the investigation some other persons who have not been made in the F.I.R., on the ground that three persons could not have been murdered by one person alone. Grievance has also been made that Liaquat Ali has been taken into custody by the police but his formal arrest has not been shown in the record. Muhammad Sharif the elder brother of the two deceased persons has also been joined in the investigation, which has been resented to by the petitioner. It is further alleged that she made an application to the Illaqa Magistrate for recording her statement under section 164 Cr.P.C. but the police is not helping her with the result that her statement has not so far been recorded. It has been argued by the learned counsel that it was Liaquat Ali alone who had murdered three persons and the Investigating Officer is trying to involve other members of the family and is harassing them. 3. After going through the contents of the petition and hearing the learned counsel, I am of the view that the petition lacks bona fides. It appears that the petition has been filed at the instance of other persons who A have been or sought to be joined in the investigation by the police. If the petitioner has consciously made this petition, then apparently she wants to isave the skin of some other persons who are suspected to be involved in the commission of the crime by the police. 4. Needless to say that F.I.R. is not the gospel truth. The occurrence jjlneed not have taken place exactly in the manner and by the persons tmentioned in the F.I.R. It is the duty of the police to discover the truth by joining in the investigation such persons who are reasonably suspected to have some hand in the commission of the crime or who can give information C to facilitate its unearthing. The view of the Investigating Officer that triple murder appears to have been committed by more than one person is not fanciful or arbitrary. Unless the petitioner is interested to save some persons of the family, there is no reason why should she insist for the recording of her statement under section 164, Cr.P.C. or that Liaquat Ali alone be considered as they only culprit, by the police. . 5. The investigation of a criminal case lies within the statutory [functions of the police, under section 156, Cr.P.C. This Court in the exercise of the Constitutional jurisdiction under Article 199 of the Constitution cannot direct the police to change the course of investigation or adopt a particular course of investigation to discover the truth or otherwise to control the investigation. The Honourable Supreme Court in Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142, has held as under:- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. There is a statutory right on the part of the police to nvestigate the circumstances of an alleged cognizable crime without acquiring any authority from the Judicial Authorities and it would, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case." Similarly views were expressed by the Supreme Court in Malik Shukat All Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 in the following words:- "Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their Province and into which the law imposes upon them the duty of enquiry. There is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the Judicial Authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Cr.P.C., to give directions in the nature of habeas corpus. In such a case, however, the Court's functions begin when a charge is preferred before it and not until then." 6. To the same effect is the judgment of the Privy Council in Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18. 7. For what has been discussed above, this petition is dismissed in limine. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1928 Presentsh. muhammad zubair, J. SAIF SHAH and 2 others-Petitioners versus GULNAZ BOKHARI and another-Respondents Criminal Misc. No. 188/Q of 1994, decided on 26th September, 1995. Criminal Proceure Code, 1898 (V of 1898)- —S. 561-A-MusIim Family Law, Ordinance 1961-S. 6»Pakistan Penal Code, 1860--S. 420/494/109-Quashing of proceedings-Allegations, that accused ladies have managed second marriage of their brother without observing the legal formalities laid down in S. 6 of Muslim Family Laws Ordinance, 1961 and without obtaining the certificate from the concerned Arbitration Council-No evidence on record showing that accused had prompted their brother to enter into second marriage, nor they are the witnesses to said marriage-Even otherwise the provisions of S. 109, P.P.C. were not applicable to offences under the Muslim Family Laws Ordinance, 1961 which was a special enactment-Continuance of proceedings against the accused ladies in the Court of Magistrate, therefore, would be an abuse of the process of the Court hence the same were quashed. [P. 1930] A Rana Ilam-ud-Din Ghazi, Advocate for Petitioners. Af. Ikram Nagra, Advocate for Respondent No. 1. AltafHussain Sidhu, Advocate for the State. Date of hearing: 26.9.1995. judgment Through this petition under section 561-A, Cr.P.C., the petitioners have assailed the orders of the learned Additional Sessions Judge, Sheikhupura, dated 12.6.1994, whereby he dismissed the revision petition of the petitioners against the order of the learned Magistrate dated 21.11.1993, who dismissed their application under section 249-A, Cr.P.C. 2. Facts giving rise to this petition are that Mst. Gulnaz Bokhari respondent herein filed a complaint against Shahbaz Ali, his brother-in-law, Saif Shah, his sisters Mst. Shahnaz Begum and Robina and his father Bashir Shah, under section 420/494/109, P.P.C. read with section 6 of the Muslim Family Laws Ordinance, 1961, alleging therein that Shahbaz Ali in the presence of his first wife (the respondent) contracted second marriage without obtaining permission from her and that the remaining petitioners abetted the offence under section 6 of the Ordinance and thus are liable to be prosecuted under sections 420/494/109, P.P.C. The learned Magistrate after recording the preliminary evidence of Gulnaz Bokhari and her father summoned all the accused persons under the aforesaid provisions of law vide order, dated 7.9.1992. Shahbaz Ali and the petitioners moved an application under section 249-A, Cr.P.C. before the learned Magistrate for their acquittal. The learned Magistrate vide his order, dated 21.11.1993, dismissed the said application, observing therein that Shahbaz Ali had not obtained the permission to contract a second marriage from the concerned Arbitration Council and that the petition had been filed at a premature stage. The petitioners and Shahbaz Ali then assailed the order of the learned Magistrate in revision before the learned Additional Sessions Judge, who too dismissed the revision petition vide order, dated 12.6.1994; hence this petition by the three petitioners excluding Shahbaz Ali, the husband of the respondent. 3. Vide order, dated 25.7.1994, the petition qua Mst. Shahnaz Begum and Mst. Robina Akhtar was admitted to regular hearing on the ground that they are neither the witnesses of the Nikah nor there is any evidence that they prompted their brother to enter into second marriage during the subsistence of first wife. However, the petition qua Saif Shah was dismissed. 4. The learned counsel for the petitioners vehemently contended that the petitioners are being prosecuted as they abetted the offence under section 6 of the Muslim Family Laws Ordinance, 1961 by instigating the principal accused Shahbaz Ali to contract a second marriage during the subsistence of first marriage without obtaining the consent from the former wife and certificate from the concerned Arbitration Council, as contemplated under section 6 of the Muslim Family Laws Ordinance, 1961. He argued that the petitioners were neither party to the marriage nor they could be tried for having abetted the offence, because the provisions of the Penal Code could not be applied to the provisions of Muslim Family Laws Ordinance, 1961, which is special Statute. Placed reliance on 1991 PCr.LJ 1063 and PLD 1968 Lah. 703. 5. The learned counsel for the respondent argued that the petitioners abetted the commission of the offence under section 6 of the Muslim Family Laws Ordinance, 1961, by deceitful means and as such they are liable to be punished under section 420/494/109, P.P.C. hence the complaint against the petitioners was competent and the case-law cited by the learned counsel for the petitioners is not applicable to the facts of the case. 6. I have heard the learned counsel for the parties and have perused the record. The allegation against the petitioners is that when the respondent was turned out of his house by Shahbaz Ali, they managed his second marriage with Mst. Nasim Akhtar, without observing the legal formalities as laid down in section 6 of the Muslim Family Laws Ordinance, 1961 and f without obtaining the certificate from the concerned Arbitration Council and thus they are liable to be prosecuted under section 420/494/109, P.P.C. In this connection it may be observed that there is no evidence on the record that the petitioners prompted her brother to enter into second marriage, nor ^ they are the witnesses to the marriage. Even otherwise the provisions of section 109, P.P.C. are not applicable to offences under the Muslim Family Laws Ordinance, 1961, which is a special enactment and as such the continuance of proceedings against the petitioners would be an abuse of the process of the Court. Respectfully following the case-law relied upon by the learned counsel for the petitioners I accept this petition qua the two j petitioners and quash the proceedings against them Before parting with this order, I may observe that for the violation of section 6 of the Muslim Family Laws Ordinance 1961, only the husband is liable whereas for the other offences, if the respondent has sufficient evidence in her possession against the persons who committed the forgery and prepared false document, she can file a complaint against them in the proper Court. With these observations, this petition stand disposed of. (A.P.) Proceedings quashed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 1930 Present: ahmad saeed awan, J. MUHAMMAD YASIN and another-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 3504/B of 1995, decided on 19th September, 1995. (a) Criminal Procedure Code (V of 1898)-- —-S. 497-Penal Code (XLV of 1860), S. 302/324/148/149~Bail-- Investigating Officer's opinion not binding on Court-Court is not bound by the opinion of the Investigating Officer and it has to form its own opinion in the light of the evidence and material brought on record. [P. 1932] A (b) Criminal Procedure Code (V of 1898)- —-S. 497(2)--Bail--Affidavits--Evidentiary value of--Evidentiary value of affidavits tendered in defence is to be determined by the Trial Court and they cannot be considered as a material to attract the benefit of the provisions which warrant further inquiry. [P. 1933] B (c) Criminal Procedure Code (V of 1898)-- —S. 497--Pakistan Penal Code (XLV of 1860), S. 302/324/148/149--Bail« Grant of--Prayer for--Accused had named in the F.I.R. with specific role and in the presence of eye-witnesses their plea of alibi could not be relied upon-Opinion of the Investigating Officers with regard to the innocence of accused found on the affidavits of certain colleagues qua their alibi was not based on any cogent evidence tenable in law for the purpose of bail- Overwhelming ocular evidence prima facie connecting the accused with the alleged offence of double murder was corroborated by medical evidence-Bail refused. [P. 1933] C & D Riyasat All Chaudhry, Advocate for Petitioners. Miss Raana Kaleem Toor, Advocate for the State. order This is a petition for grant of post-arrest bail on behalf of Muhammad Yasin and Muhammad Zafar who have been arrested in case FJ.R. No. 156/95, dated 23.4.1995 registered under section 302/324/148/149, P.P.C. with Police Station Sadar, Depalpur. 2. The brief facts of the case are that the occurrence took place on 23.4.1995 at 5.30 p.m. whereas Muhammad Jafar died at the spot and Zafar Iqbal who was injured during the occurrence died later on. Faiz Ahmad complainant reported the police that at the time of occurrence he alongwith Saeed Ahmad, Zafar Iqbal, Muhammad Jafar and Muman was present at Chah Purbian Wala, Muhammad Hussain and Muhammad Yaseen armed with rifle, Amin, Zafar, Safdar Ali and Asghar Ali armed with Sotas came there and shouted Lalkara whereafter Zafar Iqbal ran but Yaseen fired a shot with rifle hitting him on the right buttock who fell down. Muhammad Hussain fired a shot with rifle hitting Muhammad Jafar on the left flank who too fell down. Amin, Zafar, Safdar and Asghar accused gave Sota blows to him on different parts of body due to which he died at the spot. 3. The learned counsel for the petitioners contended that the petitioners have been found innocent in three consecutive investigations as the plea of alibi set up by the petitioners was found to be correct and on the basis of the plea of alibi the third accused Muhammad Amin who has been named in the F.I.R. and specific role has been attributed to him, was granted bail by the learned Additional Sessions Judge by accepting the findings of Investigating Officers. 4. The learned State Counsel opposed the bail petition and contended that plea of alibi cannot be considered at this stage of bail; further contended that it was a daylight murder, specific role of inflicting injuries to one of the deceased has been attributed to Muhammad Yaseen petitioner while the other petitioner inflicted injuries to the other deceased. 5. I have heard the arguments of learned counsel for the petitioner at length as well as the State Counsel and have perused the record with their able assistance 6. Admittedly, the petitioners have been found innocent by the police in all the three investigations and report under section 173, Cr.P.C. was submitted to discharge the petitioners but the learned Magistrate did not agree with the report and left the matter at the mercy of trial Court. 7. It is necessary to point out that the Courts indeed have discretion under section -;97, Cr.P.C. but are bound to exercise it judiciously with due care and caution by taking all facts into consideration and material produced before the Court; while hearing a bail application this Court will not go deep into the evidence as sifting of the evidence or deeper appreciation of the evidence at tnal sbge is not required to be done; all that is required under section 4'j7, O P •'.'. is to assess as to whether the reasonable grounds exist to believe tii< i_;u oners to be connected with the commission of the alleged offence 01 sjiLeru lie. S. The learned counsel for the petitioners relied upon case Nake Muhammad :: The State 1991 SCMR 1630, Asghar Masih v. The State 1995 PCr.LJ 544, Kchmat Ullah alias Rehman v. The State 1970 SCMR 299 and Muhammad Aslam v. The State 1993 SCMR 2288 wherein the accused were granted concession of bail as were found innocent in the investigations successively by the police. Further, relied upon case Khalid Jaued Gillon v. The State PLI) 1978 SC 256 wherein bail was granted on the plea of alibi supported by the affidavit of a disinterested person. 9. While it is well-established principle of law that a Court is not . bound by the opinion of the Investigating Officer. The Court has to form its j own opinion in the light of the evidence and material brought on record. 10. In case in hand; the opinion of the Investigating Of icers is primarily based on the affidavits of certain colleagues qua the alibi of the petitioners. None from the locality where the occurrence took place came forward to support the plea raised by the petitioners that they did not participate in the occurrence. The petitioners are specifically named in the F.I.R. which was lodged promptly. The F.I.R. story is corroborated by the statements of witnesses mentioned in the F.I.R. and the medical evidence corroborates their testimony. 11. The facts of the case in hand are quite distinguishable from the facts of the cases cited at the Bar by the learned counsel for the petitioners. The evidentiary value of affidavits tendered in defence would be determined by the learned trial Court and cannot be considered as a material to attracted the benefit of the provisions which warrant further inquiry. As it was held in case Mst. Bashiran Bibi v. Nisar Ahmad PLD 1990 SC 83:- "Criminal Procedure Code (V of 1898)-- S. 497(2)--Further inquiry-Mere filing of affidavits of certain Advocates would not attract the expression 'further inquiry' nor would it amount to "two versions-Evidentiary value of such evidence should be left to be determined by trial Court." 12. It was observed in case Sadoro v. The State 1990 PCr.LJ 118fi that "it is the overall consideration of a case which qualify an accused person for grant of bail. All factors are to be weighed and assessed. Even an iron clad plea of alibi may disappear altogether on closer examination. It is not unheard of that people, even in police custody, by recourses to collusion and use of unhealthy practices, may yet have their way. Further, a plea of alibi B has its own limitations in the context of bail, which obviously, is not the same thing as a determination on regular trial. Of all such matters the Court sized of the case is to be the Judge." 13. The petitioners have been specifically named in the F.I R with ( , specific role, hence in the presence of eye-witnesses; the plea of alibi ccnncl be relied upon. 14. According to my mind, the opinion of the Investigating Officers with regard to the innocence of the petitioners is not based on any cogent evidence tenable in law for the purpose of bail and there is overwhelming ocular evidence prima facie connecting the petitioners with the alleged offence (of double murder) which is corroborated by the medical evidence. I am not convinced to admit the petitioners to bail at this stage. The petition I lacks merit which is hereby dismissed. (MAA.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1933 (DB) Present: SH. MUHAMMAD ZUBAIR AND RAJA MUHAMMAD KHURSHID, JJ. EHSANULLAH and another-Appellant versus STATE-Respondent Criminal Appeals Nos. 26 and 8 of 1992, Murder Reference No. 537 of 1991 and Criminal Revision No. 3653 of 1993, heard on 13th November, 1995. (i) Pakistan Penal Code, 1860 (XLV of I860)- —-S. 302/34-Principle of Administration of justice-Evidence-Number of witnesses not important-Quality and not the quantity of evidence is more important to prove a case--If a solitary witness inspires confidence of being truthful and trustworthy, the principle of safe administration of justice would require placing of reliance on him [P. 1939] A (ii) Word & Phrases-- —Falsus in uno falsus in omnibus-Principle of "falsus in uno falsus in omnibus" has undergone a change in the recent years and the dictum of "sifting the grain out of the chaff' has come to be recognised by the Courts in the light of present social structure as nobody is ready to run the risk of poking his nose into the blood of others. [P. 1939] B (iii) Pakistan Penal Code, 1860 (XLV of 1860)- —S. 302/34--Evidence--Benefit of doubt-Benefit of doubt may be given to an accused only where the doubt arises from the facts of the case and is inherent in its circumstances-Benfit of doubt cannot be given if it is of trivial nature and only resides in the mind and is not established through evidence-The maxim, that it is better that ten guilty persons be acquitted rather than one innocent person be convicted does not mean that even an imaginary, unreal and improbable doubt is enough for holding accused not guilty, if the evidence on the whole, points to conclusion on which a prudent man can hold that the accused is guilty. DP. 1940] C (iv) Pakistan Penal Code, 1860 (XLV of I860)-- —S. 302/34--Evidence--Assessment of evidence-where some of the accused already acquitted-Every bit of evidence has to be evaluated for safer administration of criminal justice rather than to condemn it as a whole on the premises that some of the accused were given the benefit of doubt and acquitted by relying on the same evidence. [P. 1940] D (v) Medical Jurisprudence-- —Fabricated injuries or forged wounds-Fabricated injuries or forged wounds are often cut wounds, occasionally stab wounds and sometimes bruises-Contused or lacerated wounds are rarely fabricated on account of the pain they cause and the force required to produce them—Still rare are the fire-arm injuries and burns-Fabricator usually produces only that much of injury as he thinks necessary to sustain a story and he is careful to avoid doing any serious harm to himself-Such injuries are, therefore, usually multiple, superficial and not sustained on vital parts of the body. [P. 1941] E Parikh's Text Book of Medical Jurisprudence and Toxicology p. 256 ref. (vi) Pakistan Penal Code, 1860 (XLV of I860)-- —-S. 302/34-Appreication of evidence-Complainant had been injured during the occurrence and the injuries sustained by him could not be said to have been produced through friendly hand, forged or fictitious, rather the same had negated the assertion of the accused about his absence and confirmed his presence at the place of occurrence-Fire attributed to accused was supported by the Forensic Expert as the crime empty was found wedded to the gun used—Complainant's version was corroborated by the medical evidence-Defence version put up by the accused was not plausible-Conviction and sentence of death passed upon accused by Trial Court were confirmed in circumstances. [Pp. 1941 & 1942] F, H, I & K (vii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/34 & 307—Appreciation of evidence-Crime empty discharged from the gun of accused was not wedded to it -Injury attributed to accused on the left thumb of the deceased had been caused with blunt weapon as per medical evidence-Use of gun by the accused during the occurrence was, therefore, doubtful-Ace used was acquitted on benefit off doubt in circumstances. [Pp. 1941 & 1942] G & J Mr. S.M. LatifKhan Khosa, Advocate for Appellant. Kh. ShaukatAli, Advocate for the State. Mr. A. Salirn Nishtar, Advocate for the Complainant. Dates of hearing: 12 and 13.11.1995. judgment Raja Muhammad Khurshid, J.--A case under section 302/307/325/34, P.P.C. was registered against Ihsan Ullah, Muhammad Asif, Muratab Ali and Shahid Kussain accused at Police Station, Sadar Raiwirid District Kasur for an occurrence which took place during the night falling between 16th and 17th June, 1990 at about 3.00 a.m. or 4.00 a.m. in the area of village Handal 15 kilometers towards south of police station. 2. According to the F.I.R. lodged by Khurshid Akhar (P.W. 8), he alongwith his deceased son Shahbaz were sleeping in their Dhari on the cots. At about 3.00 a.m. or 4.00 a.m., while awake he saw Ihsan Ullah accused armed with .12 bore gun, Shahid Hussain armed with hatchet, Muhammad Asif equipped with carbine and Muratab Ali armed with iron bar (Saria), entering Dhari. Ihsan Ullah accused fired gun at deceased while the latter was asleep. The fire hit the chest and left side of abdomen of the deceased. Muratab opened attack on the complainant with Sana thereby causing injuries on his left upper arm and head. In the meanwhile Muhammad Asif accused fired from his carbine hitting left hand of the deceased who died on the spot. The thumb of the left hand of the deceased was separated due to the aforesaid firing. Shahid accused gave blows on the left arm of the complainant from the wrong side of the hatchet. As a consequence the wrist of the complainant was fractured. Asif also gave a butt blow of his carbine to the complainant, who raised noise which attracted Zafar Ah' P.W. 9, and Asghar Ali given up P.W., who were allegedly on their way to the Dhari for fetching milk. The aforesaid P.Ws. came running to the spot, whereupon the accused escaped towards bridge Rajba Handal while making fires in the air. The aforesaid witnesses had identified all the accused in the moon light. The bone of contention leading to the F.I.R. consisted of a dispute regarding inheritance over a land. 3. The police submitted the challan to the Court against the four accused. The trial was conducted by Sardar Ghulam Farid, the then learned Sessions Judge, Kasur, who convicted Ihsan Ullah accused to death and a fine of Rs. 2,000 or in default to undergo one year's S.I. The aforesaid accused was also directed to pay compensation to the heirs of the deceased under section 544-A vide his judgment, dated 15.12.1991. By the same judgment Muhammad Asif was also convicted under section 302/34, P.P.C. and sentenced to imprisonment for life, with a fine of Rs. 2,000 or in default to undergo one year's S.I. The aforesaid accused was also directed to deposit a sum of Rs. 50,000 to be paid as compensation to the legal heirs of deceased Shahbaz or in default to undergo six months' S.I. The aforesaid Asif was also convicted under section 307, P.P.C. for causing injuries to Khurshid Akbar complainant and sentenced to 3 years' R.I. with a fine of Rs. 5,000 or in default to undergo 6 months' S.I. The fine if recovered, was directed to be paid as compensation to the legal heirs of the injured P.W. Both the sentences to Muhammad Asif were directed to run concurrently. 4. The learned Sessions Judge made a reference (Murder Reference No. 537 of 1991) for confirmation of death sentence passed upon Ihsan Ullah, who also preferred Criminal Appeal No. 26 of 1992 challenging his conviction and sentence on the charge under section 302/34, P.P.C. Muhammad Asif accused also filed Criminal Appeal No. 8 of 1992 challenging his conviction and sentence passed against him under section 302 and under section 307, P.P.C. respectively. A Criminal Revision No. 353 of 1992 was filed by Khurshid Akbar complainant against the acquittal of Muratab Ali and Shahid Hussain accused. 5. We have heard the learned counsels for the parties and have also gone through the evidence with their assistance. It was contended by the learned counsel for appellant Ihsan Ullah that motive of the occurrence was not proved by the prosecution at the trial. Likewise the evidence of Zafar Iqbal P.W. 9 was not believed by the trial Court whereas Asghar Ali was not produced by the prosecution having been given up as unnecessary. The only witness i.e. complainant namely Khurshid Akbar P.W. 9 was believed to base the conviction of the appellants by the learned trial Court. In this regard, it was contended that the close examination of the testimony of the complainant P.W. will reveal that he had been consistently improving his statement at the trial in order to bring it in line with the medical evidence, which had already been examined before he could enter the witness-box. It was, therefore, urged that such a witness would be considered to be interested and keen to advance the prosecution case to secure the conviction of the accused persons at all costs. Such an interested witness should not be believed on a charge, which may result into sentence of death. In this regard, the learned counsel for the appellants submitted that recoveries in this case were not of any use. The gun P. 3 recovered from Ihsan Ullah vide memo. Tbch P.G. was not seen by any independent witness and as such would not carry any corroborative value. The carbine recovered from Muhammad Asif accused vide memo. Exh. P.H. also suffers from the same defect and should not have been taken into account to provide corroboration to the ocular account of occurrence. The recovery witness to this case namely Niaz P.W. 6 though brother of the deceased was disbelieved by the trial Court whereas Liaquat Ah was given up having been won over, which would lead to an influence that if examined, he would have stated against the prosecution. Reliance upon Babu Khan, S.I. P.W. 10, in respect of recoveries could not be made particularly when his investigation and conduct were also subjected to server criticism by the learned trial Judge in his judgment. The empty of carbine attributed to Muhammad Asif did not match with the weapon and as such made the case of the prosecution further doubtful. 6. The learned counsel for the appellant contended that the medical evidence also did not provide any corroboration to the case of the prosecution as set up in the F.I.R. However, a conscious attempt was made by the complainant during the trial to make improvement as referred to above to bring his case to conform to the medical evidence, but such an attempt would not be of any help to the prosecution, rather it will damage the prosecution case beyond any repair. The ocular account of occurrence given in the F.I.R. and even by the complainant was at variance regarding the nature of injuries. In such a situation there were material discrepancies between the two sets of evidence so as to render uie prosecution case highly doubtful. It was particularly so because the motive in respect of inheritance of Mst. Inayat Bibi was not proved though the learned trial Judge wrongly interpreted the story of motive on the basis of document Exh. D.G. showing litigation over a question of inheritance regarding Mst. Rashida Bibi pending in the Revenue Court. A perusal of his document will rather show that the complainant side had motive against the accused persons as they were cited as respondents/defendants in those proceedings having usurped the right of accused party. The finding of the trial Court would not therefore, be sustainable on the question of motive being topsy-turvy. The F.I.R. was got prepared at the spot and therefore, the scope for deliberation or preliminary investigation could not allegedly be ruled out. The evidence would rather suggest that the story about the prompt F.I.R. was negated as it seemed that the case diary was stopped to prepare relevant papers such as injury statement etc. in the light of the medical evidence coming through the medico-legal report of the injured P.W. and post-mortem report of the deceased. Since the prosecution allegedly failed to prove its own motive, the motive following from the defence evidence could not be successfully utilized in favour of the complainant. The testimony of the complainant as P.W. 8 was also seriously questioned on the ground that either he was not present at the spot or he had not actually seen the happening being in sound sleep. It was improbable that he will be awaking on the late mid night i.e. 3.00 a.m. and 4.00 a.m., which are the deep sleep hours. The injuries on the person of the complainant were also stated to be dubious fabricated and not free from suspicion due to their nature. The ocular account was allegedly inconsistent with the position of the dead body vis-a-vis whether the same was on the cot or on the ground and the deliberate attempts were made to meet the consistency but without any effect. It was, therefore, submitted by the learned counsel for the appellants that the case of the prosecution being highly doubtful should not be given any credence particularly when on the basis of the same evidence two out of the four accused have already been acquitted. 7. While concluding the arguments, the learned counsel for the appellants pointed out that the appellants were falsely named in the case out of enmity and political rivalry although it was a blind murder having been committed during the dead of night. 8. The learned counsel for the prosecution however, came up with the arguments that the story put up by the injured complainant P.W. was truthful and there was no scope to entertain any doubt that the occurrence was not seen by him. It was particularly so because the F.I.R. was lodged without any delay on the statement of the complainant recorded at 6.15 a.m. on the same morning and that the formal F.I.R. was registered at 7.00 a.m. and there was no time for deliberations or twisting the story, which was stated in natural manner by the complainant Secondly the complainant having been injured during the occurrence was medically examined on the same morning at 11.00 a.m. and 5 injuries were found on his person out of which one was lacerated wound, a swelling and there were three bruises on his body. Injury on the head being on vital part of the body would suggest that there was no fabrication or manipulation of the injuries as alleged by the other side. 9. Lastly it was contended by the learned counsel for the prosecution that ocular account of occurrence given by the complainant was fully supported by the medical evidence at the trial. The motive was also admitted though half-heartedly by the accused by stating that there was a land dispute resulting into some litigation by virtue of which one of the acquitted accused had obtained possession. It was, therefore, contended that the prosecution had proved its case in toto beyond any reasonable doubt 10. We have taken into consideration the arguments addressed at the bar and the evidence produced at the trial. It is true that there is only one witness i.e. Khurshid Akbar complainant, who has been believed in the Court below, but the other witness namely Zafar was disbelieved and yet another eye-witness Asghar Ah' was given up. Thus, we are left with only one witness, who is father of the deceased and was allegedly sleeping in the same Dhari where his son was done to death. It is true that presence of Zafar Ali P.W. 9 and Asghar Ali given up P.W. might be doubtful because they would not normally come at the early hours of morning to fetch the milk as alleged by the complainant So after exclusion of their evidence, the only witness which can be taken into consideration is the complainant himself. It is now well-established that quality and not the quantity of the evidence is more important to prove a case. Keeping that dictum in view it can safely be said that if a solitary witness inspires confidence of being truthful and trustworthy, the principle of safe administration of justice would require that reliance may be placed on such witness. Now coming back to Khurshid Akbar complainant as stated above, he is father of the deceased and was sleeping in the same place, where the occurrence was committed. According to him he had awoken and had seen accused entering the Dhari to commit the occurrence. Although he had named 4 accused in the case, out of which 2 were acquitted by the trial Court extending them the benefit of doubt but that would not make Khurshid Akbar complainant a liar so as to be disbelieved regarding the whole occurrence. It is now well-settled that the principle of "falsus in uno falsus in omnibus" has undergone change in the recent years and the dictum of "sifting the grain out of the chaff' has come to be recognised by the Courts in the light of present social structure as nobody is ready to run the risk of poking his nose into the blood of others. This sense of insecurity has deterred even the most conscientious and responsible citizens to hold back even if the occurrence is seen by them. So long as, this state of affairs exists in the society, proper sifting of evidence would be essential for maintaining the balance of justice qua the victim and the offender. There is also another tendency, though unfortunate, in our society that belaboured effort is made to involve the innocent persons alongwith real culprit so as to perpetuate agony and grief to the opposite side. 11. It is the function of the Court to see that no innocent person should be victimised or sent to gallows whereas real culprit should not be allowed to escape cost free. It is for that reason that the Courts of justice have to be cautious at time to see that a person with soiled hands should get his due whereas a person with clean hands should be protected. In that perspective, the principle of benefit of doubt is to be re-evaluated. Though this doctrine is deep-rooted in our system of criminal jurisprudence, it must come into play in cases in which the facts and circumstances call for its application to promote the ends of justice. It is true that it must be kept within bounds, still if it arises out of the established facts palpable in the evidence of the case as a whole, it should not be denied to an accused person, whose liberty turns entirely on just and proper application of this principle. It is rightly said that there should be reasonable and genuine doubt, not an artificial doubt of which the accused should get benefit not as a matter of grace but as a matter of right. It, therefore, follows that benefit of doubt may be given to an accused only where the doubt arises from the facts of the case and is inherent in the circumstances of each case. It cannot be given if it is of trivial nature and only resides in the mind and not established through evidence. The maxim that it is better that ten guilty persons be acquitted rather than one innocent person be convicted, does not mean that even an imaginary, unreal and improbable doubt is enough for holding the accused not guilty, if the evidence on the whole, points to the conclusion on which a prudent man can hold that the accused is guilty. 12. Applying this test to the facts of this case, every bit of evidence has to be evaluated for safer administration of criminal justice rather than to condemn it as a whole on the premises that some of the accused were given the benefit of doubt and acquitted by relying on the same evidence. 13. In the light of above discussion, the statement of Khurshid Akbar is to be tested as to how far and to what extent it can be relied upon to satisfy the ends of justice. It is true that the complainant is the father of the deceased. Hence, there will be a natural instinct within him to see that at least real culprit of his son should not be allowed to escape although he may be influenced by the prevalent unhealthy practice of throwing wider net to involve some more persons to bring maximum harm to other side. 14. The complainant Khurshid Akbar was also injured during the occurrence. A question was however, raised that the injuries on his person were fabricated or fictitious with the object of showing his presence at the scene. This argument does not appear to be convincing because fabricated injuries or forged wounds, are often cut wounds, occasionally stab wounds and some times bruises. The contused or lacerated wounds are rarely fabricated on account of the pain they cause and the force required to produce them. Still rare are the fire-arm injuries and burns. The fabricator usually produces only that much of injury as he thinks necessary to sustain a story. He is careful to avoid doing any seriously harm to himself. The injuries are therefore, usually multiple, superficial and not sustained on vital part of the body. (Reference. Parikh's Textbook of Medical Jurisprudence and Toxicology, p. 256) 15. Keeping the above test in view the injuries on the person of the complainant needs to be taken into consideration to find out whether those were fabricated through friendly hand or were inflicted by enemy hand. He suffered five injuries according to statement of Dr. Muhammad Sharif P. W. 7. AH the injuries were caused by blunt weapon. The injury No. 1 was lacerated wound size 3-1/2 c.m. x 1/2 c.m. muscle deep on the top of the head. An injury like this cannot be inflicted through riendly hand because it is on the vital part of the body such as head. In such a situation it cannot be said that injuries on the person of complainant Khurshid Akbar were produced through friendly hand or were forced or fictitious. On the contrary, all these injuries on the person of the complainant would negate the assertion of the appellants about his (complainant) absence 'from the spot. Rather it will confirm his presence at the place of occurrence. 16. Keeping the above factors in view, it will be easy to deal with the case of the present appellants before us. Out of them again there is differentiating line between the accused Ihsan Ullah and Muhammad Asif which has to be recognised for the safe administration of criminal justice. 17. Muhammad Asif accused had allegedly fired with carbine at the deceased, had caused injuries with Butt blows on the head of complaint. But this injury is not distinguishable from the injury attributed to Muratab i.e. acquitted accused which he had inflicted with iron bar (Saria) on the head of the complainant. Likewise the crime empty collected form the spot, and fired from the carbine of Muhammad Asif accused was not found wedded to it by the Ballistic Expert. In such a situation, the case of Muhammad Asif has to be separated out with abundant care ana caution from his co-accused namely Ihsan Ullah, who has been linked with the fatal fire on the deceased with his gun P. 3, the empty of which was also wedded to his gun. The legal and equitable compulsion would require extension of doubt to Asif accused so as to keep the fountain of justice clear of any doubt qua his culpability. In pursuance of what has been said above. Muhammad Asif accused will also be entitled to the benefit of doubt firstly because the crime empty discharged from his weapon was not weclcit ' r,o it and secondly the injury attributed to him on the thumb of the left u.m of the deceased was caused with blunt weapon as per medical evidence. Hence these two factors would create a reasonable doubt regarding the use of gun by Asif accused during the occurrence. On the contrary, the fire attributed to Ihsan Ullah is supported by the Forensic Expert. According to his report, crime empty was wedded to the gun used by the aforesaid accused during the murder of the deceased. The fire-arm injuries attributed to him by the complainant are in line with the medical evidence. Thus, it is proved beyond any reasonable doubt that Ihsan Ullah accused committed the murder of Shahbaz deceased. 18. The defence version put up by Ihsan Ullah accused is least plausible as he had taken up the general plea that it being a blind murder, he was involved in it due to political rivalry. 19. In view of the above discussion, the case against Muhammad Asif was not free from reasonable doubt. He (Asif) is given the benefit of doubt and acquitted of charges against him. He shall be set at liberty forth with if already not on bail. 20. However, the case against Ihsan Ullah accused has been proved beyond any reasonable doubt. Therefore, his appeal is dismissed and the conviction and sentence awarded to him (Ihsan Ullah) by the learned trial Court is upheld. Death sentence of accused Ihsan Ullah is confirmed. 21. Reference made by the learned Sessions Judge under section 374, Cr.P.C. is accordingly accepted. Criminal Appeal No. 26 of 199 filed by Ihsan ullah accused is dismissed. Criminal Appeal No. 8 of 1992 filed by Muhammad Asif accused is accepted. Revision No. 353 filed by the complainant is also dismissed as the acquitted accused were rightly given benefit of doubt by the learned trial Court under the law. (M.A.A.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1942 Present: Miss tallat yaqub, J. MUHAMMAD AYUB--Petitioner versus GHULAM NABI, INSPECTOR POLICE/C.I.A., FAISALABAD and 4 others-Respondents Writ Petition No. 11771 of 1995, heard on 12th November, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)- —S. 420/468/471/487--Punjab Essential Articles (Control) Act (XVII of 1973), S. 3/6-Constitution of Pakistan (1973), Art. 199--Quashing of F.I.R.--Investigation conducted by the Inspector C.I.A. who was also the complainant was a nullity in the eyes of law-Admittedly accused was dealing in Gypsum Danedar and they did not claim to sell fertilizers and no offence, therefore, was made out against them even if the contents of the F.I.R. were admitted to be true-Accused were doing a lawful business which was permitted under Art. 18 of the Constitution of Pakistan (1973)—F.I.R. registered against the accused was quashed in circumstances. [P. 1944] B & C (ii) Interpretation of statute- —If the contents of F.I.R. disclose the commission of an offence which comes within the ambit of an existing Act, then the existing Act shall be deemed to be applicable. [P. 1944] A Mr. Muhammad Farooq Bedar with Mr. Nadeem Shibli, Advocate for Petitioner. Mr. Mohsin Raza Qazilbash, Advocate for the State with Respondents Nos. 1 and 2. Date of hearing: 12.11.1995. judgment This judgment will dispose of Writ Petition No. 11771 of 1995 and Writ Petition No. 12813 of 1995 which have been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for the quashment of F.I.R. No. 425/95, dated 4.9.1995 under section 420/468/471/487, P.P.C. read with 3/6 Essential Articles Act, 1973 registered with Police Station Nishatabad, District Faisalabad on the complaint of Ghulam Nabi Inspector C.I.A., Faisalabad. 2. The brief facts of the case are that Ghulam Nabi Inspector C.I.A. Faisalabad received information that the petitioners were engaged in the preparation of alleged spurious fertilizer in their premises. Accordingly he firstly raided the premises of A^ro Fertilizer (Pvt.) Ltd., Faisalabad and took into possession 485 bags of alleged spurious fertilizer and sent one kilo fertilizer from each bag to Agricultural Chemist (Soil Fertility), Soil Fertility Survey and Soil Testing Institute, Faisalabad. He then raided the premises of Agro Development Corporation and from there too, he took into possession 50 empty bags ou which Super Gypsum Danedar was engraved, one of which was sent to the Agricultural Chemist (Soil Fertility), Soil Fertility Survey and Soil Testing Institute, Faisalabad. 3. Consequently, Ghulam Nabi, Inspector lodged First Information Report No. 425/95 with Police Station Nishatabad, District Faisalabad. 4. It was argued by the learned counsel for the petitioner that there was no Act known as Special Article Act, 1973 with which the petitioners were charged. In fact it was section 3/6 of the Punjab Essential Article (Control) Act, 1973, which was applicable in the present case and therefore, the insertion of section 3/6 in the impugned F.I.R, was illegal and on that score alone the same was liable to be quashed. I am afraid this argument of the learned counsel cannot be accepted. If the contents of the F.I.R. disclose the commission of an offence which comes within the ambit of an existing Act then the existing Act shall be deemed to be pplicable in the circumstances of the case. It is, therefore, held that by mentioning section 3/6 of the Special Articles Act in the F.I.R. it meant the Punjab Essential Articles (Control) Act, 1973. 5. It has next been contended by the learned counsel for the petitioners that the investigation being conducted by Ghulam Nabi, Inspector is a nullity in the eyes of law. Reliance has been placed on Ashiq alias Kaloo v. The State 1989 PCrJLJ 601 and Muhammad Ihsan u. The State 1991 MLD 443. 6. In 1989 PCr.LJ 601, the learned Judge of Federal Shariat Court has held that where the complainant was himself the Investigating Officer, the investigation could be biased and, therefore, the conviction and sentence passed in that case was set aside. In the latter case on the same ground, the petitioner was released on bail. 7. It has further been contended that in the report submitted by the Agricultural Chemist, Soil Fertility and Soil Testing Institute, Faisalabad, the gypsum purity was 89 to 90 per cent, and, therefore, the petitioners have committed no offence as admittedly they were selling Gypsum Danedar. Learned counsel for the petitioners vehemently contended that the impugned F.I.R. had been registered with mala fide intention in order to humiliate and harass the petitioners. The Inspector present before' me frankly admitted that the petitioners were dealing in Gypsum Danedar. The learned State counsel has not been able to rebut the contentions of the counsel for the petitioners. 8. In so far as the investigation being conducted by the Inspector Ghulam Nabi is concerned, it has no legal value in view of the law laid down in the abovementioned cases and respectfully following the law laid down in those cases, I hold that investigation being conducted by Ghulam Nabi, Inspector, C.I.A., Faisalabad is nullity in the eye of law. Since it is conceded by the Inspector, that the petitioners are dealing in Gypsum Danedar and are not claiming to sell fertilizers, therefore, no offence is made out against them even if the contents of the F.I.R. are admitted to be true. Learned counsel for the petitioners is right when he submits that the petitioner's company/firm were doing lawful business which is permitted under Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973. 9. For all these reasons, these petitions are allowed and resultantly F.I.R. No. 425/95 registered with Police Station Nishatabad, District Faisalabad on 4.9.1995 is quashed. The parties are left to bear their own costs. (M.A.A.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1945 Present: rasheed ahmed razvi, J. MEHBOOB ALI and 2 others-Appellants versus STATE-Respondent Criminal Appeal No. 113 of 1995, decided on 18th February, 1996. Pakistan Penal Code, 1860 (XLV of I860)- -—S. 302/34-Sentence--Challenge to--Appreciation of evidence-Only one prosecution witness had deposed that he had seen the accused in torch light going from the side of the place of incident towards their village-No other evidence was available against the accused-Neither the accused were named in the F.I.R. nor any motive was assigned to them—Accused were acquitted in circumstances. [P. 1947] A & B Syed Madad Ally Shah, Advocate for Appellants. Ch. Bashir Ahmed, Advocate for the State. Date of hearing: 18.2.1996. judgment The appellants were convicted and sentenced for life imprisonment and to pay fine of Rs. 10,000 each for allegedly committing murder of deceased Muhammad Ali by the learned Sessions Judge, Badin, Sindh vide judgment, dated 1.8.1995. Being aggrieved by the said conviction/sentence, they preferred this appeal and at subsequent stage they also filed an application under section 426, Cr.P.C. Since due to pressure of work this bail application could not be proceeded, as such it was ordered by consent that this application be heard alongwith the main appeal. Accordingly, this order will dispose of the said application as well as the main appeal. 2. Briefly, the facts of the case are that one Muhammad Siddique lodged F.I.R. on 12.6.1989 with Police Station Outpost Nito Shehar at about 8.30 a.m. which was later on converted into F.I.R. No. 89/89 at Police Station Badin. The facts, as stated in the F.I.R., are the complainant Muhammad Siddique resides with his other brothers and sisters at his village Muhammad Hussain Sehto. It was alleged by the complainant that one Mooso Mallah was suspecting that his brother deceased Muhammad Ali was having some illicit terms with the wife of said Mooso Mallah and that there was some dispute in this connection also which resulted in a private Faisla by the Nekmard, namely, Dino Khan Chandio and it was due to such Faisla that Mooso migrated from the village Sehto. It is further alleged that in night of 12th June, 1989 at about 1.45 a.m. the informant woke up after hearing sound of gun fire and immediately rushed to his brothers Talib Gul Muhammad and Ghulam Muhammad who all woke up due to this sound of gun fire. They went to their brother Muhammad Ali and found him dead who was bleeding from his chest. It is further alleged in the F.I.R. that they also heard second fire from the street but were not able to see the culprits due to the darkness. In the end, it is stated that one Yousuf Shoro and other villagers also came to the scene of Wardat. That they sent Abu Bakar to call Rajperi Mataro to trace the foot-prints of the culprits. That one party left to trace the foot-prints while the complainant went to Police Post Nindo where S.I.P. Chakar Khan recorded his statement under section 154, O.P.C. which was exhibited as Exh. 14-A. It is very interesting to note that in the F.I.R. the complainant has disclosed four names against whom he was having suspicion that they may have killed deceased Muhammad Ali. Their names are: Mooso son of Soomar Mallah, (2) Jummo son of Arif Mallah, (3) Billa alias Billo son of not known Mallah and (4) Jummo son of not known Mallah. 3. On 28.6.1989 appellants Mehboob Ali, Allah Jurio and Behram (not before this Court) ,vere arrested while appellant No. 2, Abdul Karim, surrendered before the trial Court on 27.2.1990. Accordingly, police filed charge-sheet against them and on 14th April, 1990 the trial Court framed the following charge against all the four accused:- "That you on the night in-between llth and 12th June, 1989 at about 1.45 a.m. at the house of deceased Muhammad Ali in Village Muhammad Siddik Deh Dasti, Taluka Badin in furtherance your common intention did commit murder by intentionally causing the death of Muhammad Ali Saihto by means of fire-arm injuries and thereby committed an offence punishable under section 302, P.P.C. read with section 34, P.P.C. and within the cognizance of this Court." 4. I have heard Mr. Syed Madad Ally Shah, Advocate for the appellants and Mr. Ch. Bashir Ahmed, Advocate for the State. I have also perused the paper book and have gone through the evidence brought on record by the prosecution. It is strenuously contended by Mr. Syed Madad Ally Shah that it is a case of unseen incident and that the only evidence against the present appellants is that P.W. Ghulam Hussain has seen these appellants going away from the place of incident in the torch light. The remaining P.Ws. namely, Muhammad Siddique (complainant), Ghulam Haider, Talib and Yousuf Shoro have deposed against the present appellants up to the extent that they were told by P.W. Ghulam Hussain that he had seen the appellants in torch light on the date of alleged incident. The second ground of attack of Mr. Madad Ally Shah is that the present appellants were not named in the F.I.R. despite the prosecution version that P.W. Ghulam Hussain has informed all the witnesses including complainant at the place of Wardat, immediately after the incident that he had seen all the four appellants including absconder Behram going away from the place of incident. It is further contended by Mr. Shah, learned counsel for the appellants that admittedly 161, Cr.P.C. statements of P.W. Ghulam Hussain was recorded after lapse of 19 days i.e. on 1st July, 1989 whereafter his 164, Cr.P.C. statement was recorded on 2nd July, 1989. In these circumstances, he argued that this statement has no evidentiary value and cannot be accepted to be basis of any conviction. He has referred to the case of Gul Muhammad alias Kallo and another v. The State 1974 PCr.LJ 400 as well as the case of Sikandar u. The State PLD 1963 SC 17. According to the learned counsel, these views were further followed by our Supreme Court in the recent case of Muhammad Saeed Shah v. The State 1993 SCMR 550. 5. Mr. Ch. Bashir Ahmed learned counsel appearing for the State. In view of the above factual as well as legal position, does not oppose grant of this appeal. With the help of both the learned counsel, I have gone through the evidence produced by the prosecution. Except the evidence of P.W. Ghulam Hussain that he has witnessed all the three appellants and Behram going from the side of the place of incident going towards their village and that too in the torch light, there is not other piece of evidence against the present appellants. All the remaining witnesses have stated that P.W. Ghulam Hussain has told them about mentioned in the F.I.R. by the complainant. It is also interesting to note that no motive was alleged against the present appellants. Any motive alleged was against those persons who were named in the F.I.R. but were not challaned by the police. 6. On the question of identifying accused in torch light, it is argued by Mr. Syed Madad Ally Shah, Advocate that these Courts have always treated such piece of evidence as weak and had never based any conviction order on such weak piece of evidence. In this connection, he has referred to a recent decision of a Division Bench of this Court in the case of The State v. Hakim Ali and others 1996 PCr.LJ 231. 7. The result of the above discussion is that this appeal is allowed and the sentence and conviction passed by the learned Sessions Judge, Badin, dated 1.8.1995 passed in Sessions Case No. 90 of 1989 is hereby set aside. On 18.2.1996, through a short order the appellants were acquitted and it was ordered that they be released forthwith, if not required in any other crime. Above findings are the reasoning for the said short order. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1948 (DB) Present: rana bhagwan das and shah nawaz A. awan, JJ. ABDUL HAQ alias QAVI-Applicant versus STATE-Respondent Criminal Bail Application No. 510 of 1995, decided on 14.4.1996. Criminal Procedure Code (V of 1898)-- —-S. 497-Prohibition (Enforcement of Hadd) Order (4 of 1979), Art. 3/4-- Bail-Recovery of huge quantity of heroin, opium and Charas—Case against accused fell under the prohibitory clause of S. 497(1), Cr.P.C.-- Accused was stated to be a narcotics dealer and the offences relating to narcotics being on the increase day by day, the same needed to be checked and controlled otherwise the use of intoxicants could be hazardous to the society at large-Affidavit sworn by the Mashir exonerating the accused could not be considered at Bail stage as, prima facie, it amounted to tampering with evidence-Reasonable grounds existed to believe tlit involvement of accused in the case-Bail was refused to accused in circumstances. [P. 1950] A, B & C Mr. Muhammad Yousuf Leghari, Advocate, for Applicant. Mr. Abdul LateefAnsari, Asst. A.G. for the State. order Shah Nawaz A, Awan, J.-This order will dispose of bail application filed on behalf of applicant Abdul Haq alias Qavi who has been booked to face his trial under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 vide Crime No. 3 of 1995 registered at Excise Police ^ Station, Mirpurkhas. Briefly the facts of the case as stated by the complainant are that on 20.3.1995, on spy information, that Abdul Haq alias Qavi, the present applicant, was dealing in narcotics, therefore, the complainant alongwith S.I.P. Attaur Rehman, Incharge C.I.A. Police Mirpurkhas formed a joint police party and went to Chandni Chowk, the pointed place, as per spy information, at 12.30 p.m. and noticed one person in suspicious condition standing at the road side. The complainant and S.I.P. Attaur Rehman of C.I.A. introduced themselves to the accused and made enquiries on which he disclosed his name and residence. The complainant took his personal search and secured a plastic bag from bis hand and on opening the said bag they found three packets of heroin, two packets of opium and four packets of Charas. The complainant weighed the recovered articles, in which the heroin was 3 Kgs., opium 2 Kgs. and Charas 4 Kgs. Out of which 20 grams heroin, 50 grams opium and 50 grams Charas were separated and sealed for chemical examination. Thereafter the complainant took the property in custody and arrested the present applicant under the Mashirnama. The bail application filed on behalf of the present applicant was rejected by the learned Sessions Judge, Mirpurkhas on 13.11.1995, hence the present bail application. We have heard Mr. Muhammad Yousuf Leghari, learned Advocate on behalf of the applicant and Mr. Abdul Lateef Ansari the learned Assistant A.G. for the State and perused the record. The contention of the learned Advocate is that applicant has been implicated in this case due to enmity with the Excise Police and the alleged heroin, opium and Charas have been foisted against him; that the applicant was arrested on 20.3.1995 and since then he is behind the bars without the trial being completed; that the alleged recovery of narcotics is not from the possession of the applicant which was lying on the road; that one of the Mashirs namely Rasheed Ahmed has sworn his affidavit in which he has exonerated the applicant of the commission of the offence whereas other Mashir is a stock-witness of the Excise Police, therefore, no reliance can be placed on their evidence and further that the entire heroin, opium and Chams was not sent to the Chemical Examiner for his report which creates serious doubt about the recovery of these articles from the possession of the applicant In support of his contentions learned Advocate has placed reliance on the following cases:- (1) Muhammad Parvez v. The State 1995 PCr.LJ 677, (2) Muhammad Akhtar v. The State 1995 PCr.LJ 1375, (3) Zafar Iqbal v. The State 1995 PCr.LJ 678, (4) Muhammad Sibtain v. The State 1994 PCr.LJ 2547. On the other hand Mr. Abdul Lateef Ansari, learned Assistant Advocate-General has opposed the grant of bail to the applicant on the ground that huge quantity of heroin, opium and Charas was recovered from the exclusive possession of the present applicant. He has further contended that this offence is triable by the Special Court as provided under the Ordinance VI of 1995 Control of Narcotic Substances Ordinance, 1995, which was promulgated on 5.1.1995, and further that normally entire quantity recovered is not sent to the Chemical Examiner for his report but small quantity is sent to the Laboratory to see whether the alleged articles are narcotics or not. He has further argued that report of the Chemical Examiner is positive and the prosecution has collected ample evidence against the applicant in commission of the offence. Learned Assistant Advocate-General has placed his reliance on the following unreported cases:- (1) Javed v. The State (Criminal Bail Application No. 32 of 1996), decided on 14.2.1996: 1996 PCr.LJ 1110 (Circuit Court at Hyderabad). (2) Muhammad Hassan and another v. The State (Criminal Bail Application No. 524 of 1995), decided on 19th December, 1995 (Circuit Court at Hyderabad). It is an admitted position that offence occured on 20.3.1995 and the Ordinance VI of 1995 Control of Narcotic Substances Ordinance, 1995 came into existence on 5.1.1995 therefore, the applicant is to be tried under the abovesaid Ordinance. The quantity of heroin recovered from the applicant being 3 Kgs. punishment prescribed under Article 9 is death or imprisonment for life, therefore, the alleged offence committed by the applicant falls under the prohibitory clause of section 497, Cr.P.C. From the record it appears that huge quantity o heroin, opium and Charas was recovered from the possession of the applicant for which proper ashirnama was prepared. Applicant is stated to be dealer of narcotics and the offence of narcotics are increasing day by day in. this part of the country and if these offences are not checked and controlled there will be no end to it. It cannot be conveniently overlooked that use of intoxicants is considerably increasing and fast extending its adverse effects towards youth of the country which is hazardous to the society at large. Moreover, the case has not proceeded as yet therefore, the affidavit sworn by Mashir Rasheed Ahmed cannot be considered at this stage as prima facie it amounts to tampering with evidence. The facts of the cases _ cited by the learned Advocate for the applicant are very much different than • the facts of the present case as in this case hug quantity of narcotics articles were recovered from the applicant. There are reasonable grounds to believe that the applicant is involved in the commission of the crime alleged against him. In the circumstances, we do not find any merit in this bail application which is accordingly dismissed. (M.A.A.) Application dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1950 Present: shah nawaz A. awan, J. MITHO and another-Applicants versus STATE--Respondent Criminal Bail Application No. 45 of 1996, decided on 7th March, 1996. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Penal Code (XLV of 1860), S. 302/337-F/34»Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(4)-Bail- -Grant of--0ne accused was present at the post armed with a hatchet having mens rea-During the attempt to commit robbery death of one person was caused-Nature of offence showing a heinous one-Such offences are increasing day by day and the people are feeling themselves insecure because of such offences which are being committed o;. thoroughfares—Other accused armed with a pistol at the time 4" incident who had fired at the deceased-Accused were refused bail m circumstances. [P. 1952] A & B Mr. Nadan A Kolla, Advocate for Applicants. mr. Dhani Bux Dayo, Advocate for the State. order This order will dispose off bail application filed on behalf of the above-named applicants/accused who have been booked to face their trial alongwith two other co-accused namely Jaffar alias Papoo, Mir Jat and Deeno Mari under sections 302, 337-F, 34 P.P.C. read with section 17<4), Hudood Ordinance vide F.I.R. bearing No. 31/1995 registered at Police Station Saeedabad. Briefly the facts of the prosecution case as narrated by the complainant Khabar son of Allah Bux by Caste Bughio are that they are four brothers each of them namely Ramzan, Gul Muhammad Haroon and their cousin Allah Bux is also residing with them in the same boundary. That they had sent their people and camels for taking the wheat from the land, but they made delay in coming back on which cousin Allah Bux, nephew Shoukat Ali and Hari/tenant Leemo proceeded towards the land on the motor-cycle to look at the abovementioned persons and complainant and his brothers Ramzan and Gul Muhammad were sitting in the Oataq and at about 9 O'clock in the night Allah Bux returned back who disclosed that he, Shoukat Ali and Hari Leemo were going on the motor-cycle on the land and at about 8.30 p.m. when they reached on the link road near Zer Pir Village Tayyab Dahiri, they saw four armed bandits on the light of the motor-cycle and identified each of them namely Jaffar alias Papoo, Mir Jat was armed with single barrel gun, Mitho Rind, armed with pistol, Deeno Mari and Hubdar Leghari were armed with hatchets. They all encircled their motor­ cycle and stopped the motor-cycle and directed them to get down on the Katcha path, but he replied that he will not take his motor-cycle on the Katcha path, on which Deeno Mari inflicted the back side of the hatchet blow on his back and he tried to catch hold of the hatchet on which Jaffar alias Papoo Mir jat who was armed with gun fired straight shot from his gun which directly hit Shoukat Ali and due to this Shoukat Ali fell down and Mitho Rind fired which was missed. Thereafter, the accused persons on seeing light of another vehicle which was coming from front side ran away towards Eastern side. Thereafter, they saw that Shaukat Ali had received fire injuries on his chest and on the right side of his kidney and so also there were bullet injuries on other parts of the body and the blood was oozing and was dead. Thereafter, he left Hari Leemo to guard the dead body of Shoukat Ali and he went to the complainant and disclosed him about the incident that on receiving such news from Allah Bux, he, Ramzan, Gul Muhammad and other villagers reached on the place of incident and saw that Shoukat Ali had received pellet injuries of the gun on the chest and other parts of the body and was dead. Thereafter, he left the witnesses over the dead body of his nephew Shoukat All and went to police station to lodge the report that the above-named accused persons with intention to commit robbery were standing there and stopped the motor-cylce but on the intervention of Allah Bux, Deeno Mari inflicted the back of hatchet to Allah Bux and Jaffar alias Mir jat fired straight shot from the gun to Shoukat Ali and murdered him, while Mitho Rind fired straight shot from pistol but it was missed. It is contended by the learned Advocate for the applicants/accused that the applicants/accused have been falsely implicated in this case due to enmity and further that none of the complainant party have stated that the accused persons were known to the complainant party, identification parade was not held therefore, false implication of the accused persons cannot be ruled out. The learned Advocate further contended that no fatal injury is attributed to Mitho and Hubdar Ali, .therefore, both of them are entitled for bail. On the other hand the learned Advocate Mr. Dhani Bux Dayo appearing for the State contended that allegation against the accused Mitho is that he fired from his pistol at the deceased Shoukat Ali whereas no part is assigned to Hubdar Ali except that he was present at the spot armed with hatchet therefore, he opposed the bail for Mitho but concedes that since no specific part has been assigned to the applicant/accused Hubdar Ali, therefore, he is entitled for concession of bail. I have heard the arguments of the learned Advocates and have perused the entire record of this case. I am afraid, I cannot agree with contentions of the learned State Counsel on the sole ground that accused Hubdar Ali was present at the spot at Wardat armed with hatchet with mens rea. Moreover, the nature of the offence shows that this is a heinous offence committed under section 17(4) of the Hudood Ordinance which offences are increasing day by day in this part of the country and the people feel themselves insecure as the robberies are being committed on the thoroughfares. During the attempt of robbery death of Shoukat Ali was caused. The allegations against accused Mitho are that he was armed with pistol at the time of incident and fired at the deceased. The learned Advocate states that the fire made by accused Mitho was missed and nobody became injured, there is medical certificate on the record which shows that number of injuries were sustained by the deceased and so far as the evidence which floats on the surface of this case is concerned I do not find any merit to release both the applicants/accused on bail but direct the learned trial Court to examine the Medical Officer as well as two material witnesses and thereafter if the applicants are advised they can file fresh bail application before the trial Court hence at this stage no ground for bail is made out therefore, this bail application is rejected. (M.A.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. (Karachi) 1953 Present: shafi muhammadi, J. GHULAM ABBAS and another-Applicants versus STATE-Respondent Special Criminal Bail Application No. 71 of 1995, decided on 5th October, 1995. Criminal Procedure Code, 1898 (V of 1898)- ....S. 497--Customs Act (IV of 1969), Ss. 2(s)16, 178, 32, 156(1) (8)(89)(14X77)-Bail-Grant of--Previous bail application of the accused was dismissed as withdrawn by High Court with the permission to file fresh application after final challan was submitted which was likely to be submitted within two to three weeks-Such order did not give the impression and the sense as drawn by the counsel of the accused in the fresh bail application and the same could not be treated a fresh ground to move the present application-Entertaining the present application meant to modify the previous order without any convincing ground and such act of the Court could be the worst precedent-Move of the accused's counsel in filing the present bail application which was merely a reproduction of the previous application in verbatim, in the circumstances, had done nothing except to shock the feelings of the Court-Moving an application with any such background could never be appreciated in any manner on any ground and under any impression, expectation or circumstances., whatsoever they might be, particularly at the cost of the Court's integrity, respect and honour-Bail application was dismissed in circumstances. [P. 1954] A, B, C & D Mr. Ismat Mehdi, Advocate for Applicants. Mr. Ikratn Ahmed Ansari, D.A.G. for the State. order Five persons were nominated as accused in F.I.R. No. Appg- 265/DCI/95, dated 30.5.1995, including the present two applicants, registered under section 2(s), 16, 178, 32, 156(1), (8), (89)(14)(77) of the Customs Act, 1969. Three different Special Criminal Bail Applications were filed on behalf of the accused persons out of which Special Criminal Bail No. 56 of 1995 filed on behalf of Hafiz Gul Kapoor and Muhammad Raza was dismissed on 7.8.1995 while the remaining two applications were adjourned twice or thrice and then the same was withdrawn on 23.8.1995. Hence dismissed. Mr. Ismat Mehdi, learned Advocate for applicants Ghulam Abbas and Qasim Paracha, has now moved this second bail application after withdrawal of first application on 23.8.1995 being No. 60 of 1995. Interestingly enough, both applications contain grounds (a) to (o) exactly similar in verbatim except with addition of the following sentences besides few more lines:- "Bail Application Special Criminal Bail No. 60 of 1995 was preferred before this Honourable Court which was dismissed as withdrawn with the permission to file fresh after two weeks when final challan is submitted by the Investigating Agency." It leads me to go through my order, dated 23.8.1995 which runs as under:- "The learned counsel withdraws this application. He would be at liberty to file application after final challan is submitted which may be submitted within 2 to 3 weeks." 2. Undoubtedly English is not our mother tongue but I think that wording of my order, dated 3.8.1995 does not import the same sense as was ! drawn by the learned Advocate to file the present bail application if final 1 charge-sheet has not been submitted by the Investigating Officer. It was also stated in the present bail application that:- "It was undertaken by the agency that final charge-sheet will , be submitted within a period of two to three weeks. That fter lapse of about more than four week charge-sheet has not been submitted by the Director of Intelligence, hence this bail application amongst others on this ground." I have no doubt in my mind that the order, dated 23.8.1995 does not give any such impression. Therefore, it could not be treated a fresh ground to move the present application. On account of this reason alone, entertaining the present application means to modify the previous order without any convincing ground. Such act of the Court in my view, would be the worst precedent. This proposition is so simple that even the learned Advocate for the applicants cannot be believed to be unaware of the same. In such circumstances, move of the learned Advocate in filing the present application, which is merely a reproduction of the previous application in verbatim, has done nothing except to shock the feelings of this Court. I need not to add anything more in this order except that moving application with any such background can never be appreciated in any manner, on any ground and under any. impression, expectation or circumstances, whatsoever they may be particularly at the cost of the Courts' integrity, respect and honour. Mr. Ikram Ahmed Ansari, the learned D.A.G. has appeared in the previous bail application and, therefore, he was fully aware about the facts and legal aspects of this case. He suggested that the matter be adjourned to some other date. However, I do not see any need for the same. Hence the bail application is dismissed. May I expect that such application would not be repeated in future? (M.A.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1955 Present: abdul rahim kazi, J. MUHAMMAD RAHIM and others-Applicants versus STATE-Respondent Criminal Bail Application No. 306 of 1995, decided on 28th June, 1995. Criminal Procedure Code, 1898 (V of 1898)-- -—S. 497-Penal Code (XLV of I860), S. 302/34-Bail-Grant of-No independent witness associated in case although the murder was alleged to have taken place in broad daylight at noon time in a Sabzi Mandi which was a thickly populated and busy market place-No explanation had come forward as to why prosecution had not associated private persons to act as witness or AfasAzV-Inconsistency in medical evidence and the oral evidence-Accused were granted bail. [P. 1956] A, B Mr. Muhammad Daud Baloch, Advocate for Applicants. Sardar A. Sattar Chohan, Advocate for the State. Date of hearing: 28.6.1995. order Granted subject to all just exceptions. 2. This bail application has been moved on behalf of the present applicants who are involved in a case registered as Crime No. 108/94 with City Police Station of Jacobabad initially under section 324 read with sections 34, 109, P.P.C. and 13-D, Arms Ordinance which was subsequently converted to section 302, P.P.C. Briefly the allegations in the F.I.R. are that the parties are on inimical terms and their cases are pending in the Courts and on the said date when the complainant party was returning after attending the Court of Additional Sessions Judge, Jacobabad and reached near Sabzi Mandi at about noon time they saw the present three applicants alongwith one coaccused Dad Karim who were all armed with country-made revolvers. All the accused are said to have challenged the father of the complainant, namely, deceased Lai Jan. Applicants Muhammad Rahim and Murad Shah are alleged to have fired from their weapons at the deceased who fell down whereupon absconding accused Dad Karim is also alleged to have fired at him which also hit him. The allegation against applicant Momin Shah is that he fired at the complainant hitting on his private part. The complainant also fell down. Thereafter it is alleged that the accused persons gave blows to the deceased and the complainant with the butt of their revolvers and then went away. F.I.R. was registered and the police, after usual investigation arrested the present three applicants and sent up the case for trial. I have heard Mr. Muhammad Baud Baloch, the learned counsel for the applicants and Mr. Abdul Sattar Chohan, Advocate appearing for the State. The learned counsel for the applicant has submitted that according to F.I.R. present applicants Murad Shah and Muhammad Rahim and so also the absconding accused Dad Karim had all fired from their country-made revolvers at the deceased and all of them had hit him whereas according to the post-mortem report the deceased had suffered only two wounds of entry from a fire-arm while the other two wounds are that of exit. From this the learned counsel has argued that there is inconsistency in the medical evidence and the oral evidence. He has submitted that in such case this would be a case of further inquiry and the applicants would be entitled to grant of bail. He has placed reliance on the case of Khan Mir v. Aman Sherin 1989 SCMR 1987. In this case their Lordships in the Supreme Court while dealing with a case of cancellation of bail had restored the bail initially granted by Sessions Judge in a case where there was allegation against three persons of having fired at the deceased but the deceased had suffered only one gunshot injury. The facts of the case appear to be similar to the present case. The learned counsel has further argued that there is no independent witness associated in the case although the murder is alleged to have taken place in broad daylight at noon time in the Sabzi Mandi of Jacobabad Town which is a thickly populated and busy market place. No explanation has come forward as to why the prosecution has not associated the private persons to act as such witness or Mashir. In these circumstances Mr. Abdul Sattar Chohan also does not oppose the bail application for these two applicants. Accordingly I admit applicants Muhammad Rahim and Murad Shah to bail. They shall be released on their furnishing one surety each in the sum of Rs. 1,00,000 each and P.R. bond each in the like amount to the satisfaction of the Trial Court. As regards applicant Momin Shah the allegation against him is that he has fired at the complainant with the intention to kill, hitting him on private parts but the medical evidence shows that the injury sustained by the complainant is only simple in nature. In view of the fact that the two coaccused have been granted bail I would admit applicant Momin Shah also to bail. He will also be released on bail subject to his furnishing one surety in the sum of Rs. 1,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1957 Present: ABDUL rahim KAZI, J. JEAL and another-Petitioners versus STATE-Respondent Criminal Revision No. 29 of 1991, decided on 25th June, 1995. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 307/506/34~Appreciation of evidence-Contention that since enmity existed between the parties, prosecution had failed to prove case against accused beyond reasonable doubt—Contention repelled in view of the fact that enmity was a double-edged sword which could cut both ways-Even if witnesses were related to the complainant, that itself would not be a ground to disbelieve their statements unless cogent reasons were given for the same. [P. 1959] A (ii) Criminal Procedure Code, 1898 (V of 1898)- —S. 439-Penal Code (XLV of 1860), S. 307/506/34-Revisional jurisdiction-Accused/petitioners had contended that material contradictions existed, in the evidence of witnesses and in revisional application challenging concurrent findings of fact arrived at by the two Courts below, High Court in its revisional jurisdiction would not go into factual aspect of case—Even otherwise contradictions referred by accused/petitioners were of minor nature which could not affect the fate of the case in view of medical evidence available on record. [P. 1959] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 439--Revision-Plea neither taken by applicants in their memo, of appeal filed by them against judgment of Trial Court before Appellate Court below nor same having been argued in appeal, could not be taken by applicant at late stage in revision before High Court. [P. 1960] C (iv) Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 307/506/34-Sentence-Challenge to-Appreciation of evidence-Injured prosecution witness had sustained hatchet injuries with the sharp side on his face near nose and eye-Prosecution having established their case beyond all reasonable doubt, accused, were rightly punished. [P. 1960] D Mr. Gul Bahar Korai, Advocate for Petitioner. AC. Shaikh, A.A.G. for the State. Date of hearing: 25.6.1995. judgment This revision application has been filed challenging the judgment passed by the two Courts below whereby the present applicants were convicted under section 307/34, P.P.C. and sentenced to suffer R.I. for four years each and to pay a fine of Rs. 2,000 each or in default thereof to suffer further R.I. for one month each and also to pay a sum of Rs. 1,000 each by way of compensation to the injured P.W. Makhan or in case of default thereof to suffer further R.I. for 15 days each in the Sessions Case No. 17 of 1987 by the first Assistant Sessions Judge, Khairpur Mirs in crime registered as F.I.R. No. 3/1987 at Police Station Sorah. Briefly the facts are that on 30.3.1987 at about 8.00 p.m. complainant Muhammad Yousif lodged the abovesaid report to the effect that on the date of incident when the complainant alongwith injured P.W. Makhan and other P.Ws. Muhammad rtix and Usman were returning from the village of Latifdino after attending the circumcision ceremony of his sons and at about 5.30 p.m. when they reached near lands of Haji Arbab the two appellants emerged from the ushes and confronted them. Appellant Jeal was armed with a revolver while Jamal had a hatchet in his hand. The appellant Jeal is said to have fired at P.W. Makhan hitting him on his left leg while appellant Jamal gave hatchet blows to Makhan on different parts of his body including the face. The accused party made good their escape whereafter the complainant lodged the report after leaving P.W. Makhan at the hospital. The police after usual investigation arrested the accused and sent up the case for trial. A charge was framed under section 307/34, P.P.C. read with section 506/2, P.P.C. The appellants pleaded notguilty and claimed trial. The prosecution examined the complainant, injured P.W. Makhan, P.Ws. Usman and Latifdino. The prosecution also examined A.S.I. Allah Nawaz who was the Investigating Officer and the statement of Medical Officer Mahrnood Ali was also brought on record by consent. The trial Cour after hearing the arguments of the Advocates was pleased to pass the above judgment convicting and sentencing the appellants as above. Being aggrieved the appellants preferred an appeal (Criminal Appeal No. 29 of 1990) before the Sessions Judge, Khairpur who was pleased to dismiss the same. Hence this revision application. I have heard Mr. Gul Bahar Korai, learned counsel for the applicant and Mr. A.G. Shaikh, learned A.A.G. At the outset the learned counsel for the applicants has pointed out that in the present case the judgment is not in accordance with the provisions of section 367, Cr.P.C. inasmuch as the lower Appellate Court has not framed the points for determination. He has placed reliance on the case of Atta Muhammad and 4 others v. State 1988 PCr.LJ 1698 wherein a learned Single Judge of Lahore High Court had remanded the case for rehearing in such circumstances. Mr. A.G. Shaikh, learned counsel for the State has vehemently contested this contention of the counsel and has submitted that judgment of the trial Court will show that the two points which were determined are as under:- (1) Whether on 30.3.1987 at about 3.30 p.m. in the land of Haji Arbab accused Jeal and Jamal caused grievous injuries with revolver and hatchet to P.W. Makhan in furtherance of common intention, in order to kill, as alleged by the prosecution? (2) Whether on the above date, time and place both the accused issued threats of murder to complainant party as alleged by the prosecution? He has further argued that in the appellate judgment it would be seen that both these points have been conversed in discussion. He has , further argued that the only two points raised by the appellants before the lower Appellate Court are that there was no recovery of any weapon from the appellants and that there was enmity between the parties and therefore, the appellants had claimed that the prosecution failed to prove the case against the applicants beyond any reasonable doubt. I will take up these two points first. As far as the recovery is concerned Mr. Gul Bahar Korai the learned counsel for the applicants, during course of arguments, has admitted that both the revolver and the hatchet were recovered from the present applicants but they have not been found guilty in the case under section 13-D of the Arms Ordinance. However, he has not been able to refer to any such judgment of acquittal nor it has been shown if the present appellants were challaned in the alleged offence under Arms Ordinance, in the circumstances the plea taken by the applicants that there was no recovery has no weight. As regards enmity, suffice it to say that enmity is a double-edged sword which can cut both ways. However, even if the witnesses are related . to the complainant, that itself would not be a ground to disbelieve their statements unless there are cogent reasons for the same. The learned counsel for the applicants has submitted that there are material contradictions in the evidence of the witnesses. He has also referred to certain contradictions. I have considered the same. In the first instance this being a revision application challenging concurrent findings of facts arrived at by the two Courts below, this Court will not go into factual aspect of the case. Moreover, these contradictions are of minor nature and would not affect the fate of the case in view of the medical evidence available on record. In respect of medical evidence, Mr. Korai, counsel for applicants has argued that the statement of the Medical Officer was recorded on 9.6.1987 whereas the charge was framed in this case on 16.6.1988. From this piece the learned counsel has submitted that since the evidence was recorded before framing of the charge, entire proceedings in the trial stand vitiated. I would have agreed to this contention of the counsel straightaway but for a consent statement made on 12.7.1990. The learned A.A.G. has explained the factual position. He has pointed out that it was under the directions of the Sessions Court in a bail application moved in the present case that the tatement of Medical Officer was recorded who was also subjected to a very lengthy and detailed cross-examination by the Advocate for the accused. In the trial the A.P.P. had moved an application on 12.7.1990 praying that the said statement of the Medical Officer be brought on record to be treated as evidence and the learned counsel for the accused had recorded his no objection on that application. It was in hese circumstances that this tatement was made part of the proceedings in the case. Accordingly the tatement of the Medical Officer shall be deemed to have been brought nrecord on 12.7.1990 which is subsequent to the framing of the charge and therefore, the proceedings cannot be said to stand vitiated. Even otherwise this plea was not taken by the applicant in their memo of appeal nor the same has been argued as it does not find place in the judgment of the lower Appellate Court. It is not open to applicants to take this plea in view of no objection recorded by them. In these circumstances and the fact that the injured P.W. Makhan had sustained hatchet injuries with the sharp side on his face near nose and eye, the prosecution appears to have established their case beyond all reasonable doubt. The applicants should thank their stars that the trial Court has already taken a lenient view by awarding lesser punishment in the case. With these observations I dismiss this revision application and : maintain the judgments of the two Courts below. ' (M.A.A.) Revision petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1960 Present: abdul rahim kazi, J. MUHAMMAD SHAHBAN and another-Applicants Versus STATE-Respondent Criminal Bail Applications Nos. 2 and 3 of 1995 (461 and 463 of 1994), decided on 25th June, 1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497-Penal Code (XLV of 1860), S. 302/114/34-West Pakistan Arm Ordinance (XX of 1965), S. 13-D-Bail-Prayer for-Grant of-No direct evidence was available in case to link accused persons with the commission of alleged offence or to prove their being a part of alleged criminal conspiracy—Case requiring further inquiry, bail was granted to accused. [Pp. 1963 & 1964] A & B Messrs Abdul Hakeem Khan H. Byarani, Awan Rehmatullah Nadeem and Mr. Mukhtiar Ahmed Shaikh, Advocate for Appellants. Mr. Abdul Ghani Shaikh, A.A.G. assisted by Muhammad Daud Baloch, Advocate for the Complainant. order By this common order I intend to dispose of these two bail applications as they arise out of the same F.I.R. Briefly the facts are that on 24.6.1994 the complainant registered F.I.R. with Kashmore Police Station under sections 302, 34,114 P.P.C.. and 13-D, Arms Ordinance to the effect that he alongwith his father Mian Dlahi Buz Farooqui, a retired Superintendent of Police, were returning after Juma prayers alongwith P.Ws. Munir Ahmed and Zahid Ahmed and when they reached near Bhutta Street at about 2.45 p.m. suddenly two persons armed with guns with open faces came there. One of the culprits is said to have instigated the other saying that he should fire at deceased Mian Dlahi Bux Farooqui whereupon the other culprit fired straight at the deceased hitting him on his chest who fell down on the ground. Other culprit also fired from his gun at the deceased hitting him. Both the said culprits are then said to have rode away on their black motor-cycle. The complainant saw Mian Dlahi Bux lying dead and leaving the P.Ws. at the Wardat he came to the police station where the report was lodged. Consequently the police took up the investigation and arrested as many as 14 accused in the case and sent up the challan. A bail application was moved for four of the said accused for grant of bail before arrest which was rejected. In the meanwhile another bail application for the other 8 accused was also moved who were duly arrested. This bail application was also rejected and therefore, these two bail applications No. bail application was moved on behalf of the two accused namely, Muhammad Ali and Azim. I have heard Mr. Abdul Hakeem Bijarani and Mr. Awan Rehmatullah Nadeem for the applicants and Mr. Abdul Ghani Shaikh, learned A.A.G. who is assisted by Mr. Muhammad Daud Baloch for the complainant. At the very outset counsel for the applicants have submitted that in the present case the names of these applicants do not transpire in the F.I.R. nor any overt act is attributed to them. The counsel have argued that according to F.I.R. it was only two persons who came there and both of them fired at the deceased, the result was that he succumbed to the injuries on the spot In such circumstances the counsel for the applicants have stated that the case of the present applicants would at least be one of further inquiry and there cannot be said to be any evidence available which may directly link the applicants with the commission of the alleged offence. As against this Mr. Shaikh, learned A.A.G. and Mr. Daud Baloch, Advocate for the complainant have submitted that this is a case where section 114, P.P.C.. is attracted. They have placed reliance on the statements of the two accused Azim and Muhammad Ali recorded before the police under section 161 Cr.C. wherein they are alleged to have confessed to killing of the said Mian Dlahi Bux but have further stated that it was a conspiracy hatched up amongst all the 14 accused about one month prior to the date of recording of statement. It is alleged that these two accused have further given extra-judicial confession before the Police Officers to the effect that such conspiracy was hatched wherein most of the present applicants had stated that they being the main persons of their party, would get themselves involved in different cases at different places so that they may not be made a target of suspicion while all of them desired killing away of said Illahi Bux N -Farooqui as being at retired Superintendent of the Police he was helping the enemies of the accused party. Such statements of police officials were also recorded under section 164, Cr.P.C. wherein opportunity of cross-examining the witnesses was given only to the accused Azim and Muhammad Ali. From this the learned A.A.G. and the Advocate for the complainant have submitted that this is a clear case of criminal conspiracy and section 120-B of P.P.C. would be applicable which was subsequently incorporated at the time of putting up the challan. A reference has been made to section 107, P.P.C. wherein the abetment has been defined which is as under: - "107. Abetment of a thing.--A person abets the doing of a thing, who:- First: Instigates any person to do that thing; or Secondly: Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing; Explanation I.--A person who, by willful mispresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procures a thing to be done, is said to instigate the doing of that thing." '! The learned counsel appearing on prosecution side have submitted that the present case will fall in the second category as mentioned above. The said second category deal with the case where a person engages with one or more other persons in any conspiracy for the doing of that thing if such act or illegal omission takes place in pursuance of such conspiracy. In the present case in view of the discussion that is to follow, it is yet to be determined as to whether such conspiracy had taken place and as to what was the active role played by the present applicants in such conspiracy. The counsel for the applicants have argued that in the present case all the material that the prosecution has with them is the so-called extrajudicial confession of the two accused and that the said confession by itself cannot be an evidence against the present applicants nor a conviction can be based on such extra-judicial confession of co-accused. They have further submitted that this piece of evidence cannot even be admissible in evidence. The learned counsel for the applicants while referring to the statements of Police Officers and other witnesses recorded under section 164, Cr.P.C. have submitted that in all these statements it is pointed out that both these accused had made confession which would amount to a joint extra-judicial confessions. Learned counsel have placed reliance on the following cases: - (i) The State v. Kamal Khan alias Maloo 1993 SCMR 1378, (ii) Muhammad Amin v. Bashir Ahmed 1983 PCr.LJ 1574, (iii) Mumtaz All Shaikh v. The State 1993 PCr.LJ 1919 and (iv) PirMazharul Haq v. The State 1992 PCr.LJ 1910. In the first case their lordships in the Supreme Court while dealing with a criminal appeal have observed that extra-judicial confession allegedly made by accused being a joint confession could not be used against either of them. In the second case above (Muhammad Amin v. Bashir Ahmed) a learned Single Judge of Lahore High Court has held that joint confessional statement of accused is not admissible in evidence. In third case a Division bench of this Court has held that Court can consider whether the judicial confession made by accused by itself is sufficient or not in a given case to deny the concession of bail to him. It may be observed that the principle laid down in this case is with regard to concession of bail to the person making the extra-judicial confession and not to co-accused. The same Division Bench of this Court in the case cited at No. (iv) above has held that in case where no other evidence was available against the accused except the confession of co-accused on which evidence alone no conviction can be sustained. In the same case, in view of given facts it was held by the learned Division Bench that no grounds existed to believe that accused was guilty of offence for which he had been charged and therefore, he was admitted to bail. In view of above discussion, I am of the considered opinion that in the present case there is no direct evidence to link the present applicants with the commission of the alleged offence or to prove their being a part of the said criminal conspiracy. Mr. Baloch relies on Article 40 of Qanoon-e- Shahadat in support of his contention that the said extra-judicial confession would be admissible in evidence. I am afraid even this proposition on plain reading of the contents of Article itself would show that by any stretch of imagination the same can be applied only in cases of person making the confession and not in cases of co-accused. From the above discussion I am of the view that this is a case which calls for further inquiry at least in the case of present applicants. However, as regards the case of co-accused Azim and Muhammad Ali the inference would be otherwise. In these circumstances I allow these two bail applications and direct the applicants to be released on bail on their furnishing one surety in the sum of Rs. 1,00,000 each and P.R. bond each in the like amount to the satisfaction of the trial Court. (M.A.A.) Application accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1964 Present: jawaed nawaz khan gandapur, J. GHULAM HAZRAT--Petitioner versus STATE-Respondent Criminal Miscellaneous No. 147 of 1995, decided on 7th April, 1996. (i) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302, 307, 309 & 338-E(2)--Criminal Procedure Code (V of 1898), Ss. 561-A & 345-Compounding of offences-Convictions and sentences of accused awarded by Trial Court were upheld up to the level of Supreme Court—Accused's appeal being not pending before High Court, application for compounding of offences could not be entertained by High Court which lay before the Trial Court in view of the guidelines provided by Supreme Court in PLD 1996 SC 178-Said application was consequently dismissed as withdrawn with permission to accused to approach the Trial Court in accordance with law. [Pp. 1967 & 1968]B & D (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 309, 310 & 338-E--Waiver or compounding of offences-Guidelines for subordinate Courts and citizens provided. [P. 1967] C (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-S. 302-Petition for leave to appeal was dismissed by Supreme Court-­ Counsel for petitioner not disclosing this fact before High Court-­ Procedure adopted by counsel amounts to misuse of process of the court- Counsel advised to be careful in future. [P. 1966] A Syed KhurshidAli, Advocate for Petitioner. order The occurrence, in the present case, took place inside the house of the petitioner wherein he killed his wife. The petitioner's own daughter lodged the report. The petitioner was apprehended, alongwith weapons of offence, from inside the house. After his arrest, he also made a confessional statement. 2. The petitioner was tried by the Sessions Judge, Mardan (Mr. Shahjee Rehman Khan) for the murder of his wife, Mst. Hamida Begum and for attempting at the life of his daughter, Mst. Hussan Begum (injured complainant). After the conclusion of the trial, the Sessions Judge vide his judgment, dated 23.6.1992 convicted him under section 302, P.P.C. and sentenced him to undergo life imprisonment He was also sentenced to pay a fine of Rs. 5,000 or in default of the payment of fine to suffer further two years' R.I. The fine, if recovered, was to be paid to the heirs of the deceased, as compensation, under section 544-A, Cr.P.C. Whereas under section 307, P.P.C. for attempting at the life of Mst. Hussan Begum, his daughter, the injured complainant, the petitioner was sentenced to five years' R.I. and to pay a fine of Rs. 2,000 or in default thereof to undergo further R.I. for a period of six months. 3. Both the sentences were ordered to run concurrently and the benefit of section 382-B was also extended to the petitioner. 4. The petitioner filed an appeal against his conviction/sentence which was heard by a Division Bench of this Court, consisting of their Lordships, Mr. Justice Syed Ibne Ali and Mr. Justice J.D. Akbar, JJ. (Chulam Hazrat v. The State Jail Criminal Appeal No. 118 of 1992). The said appeal was, however, dismissed by their Lordships by their judgment, dated 5.6.1994. 5. For the redress of his grievance, the petitioner filed Jail Petition No. 192 of 1994 (Ghulam Hazrat v. The State) before the Honourable Supreme Court of Pakistan. Their Lordships of the Supreme Court of akistan, Mr. Justice Fazal Dlahi Khan and Mr. Justice Saiduzzaman Siddiqui, vide their Lordships order, dated 25.1.1996, refused the leave to appeal and dismissed the petition. For the sake of convenience the said order is reproduced as under:- "In the Supreme Court (Appellate Jurisdiction) Jail Petition No. 193 of 1994 On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 5.6.1994, in Jail Criminal Appeal No. 118 of 1992. Opinion of first Judge: I have gone through the judgments of the Courts below in the light of the grounds raised in the petition. The occurrence in this case took place inside the house of the petitioner and its report was lodged by the petitioner's daughter regarding the murder of her mother. Petitioner also made a confessional statement after his arrest from inside the house. The motive for the occurrence is a usual altercation between the petitioner and his wife when she asked her husband to arrange for some money for the marriage of her son. Petitioner has been dealt leniently by not imposing the normal penalty of death on facts and circumstances of the case. I find no merits in this petition which is liable to be dismissed. Sd/- (FAZALILLAHI KHAN, J.) Opinion of second Judge: I agree. Sd/- (SAIDUZZAMAN SIDDIQUI, J.) Order of the Bench The petition is dismissed. Leave refused. Sd/- (SAIDUZZAMAN SIDDIQUI, J.) Sd/- (FAZAL ILLAHI KHAN, J.) Dated 25.1.1996." 6. It was on 8.12.1995 that the petitioner filed an application in this Court under section 561-A/345, Cr.P.C. read with Qisas and Diyat Ordinance, 1991 for his acquittal on the basis of a "compromise". This petition, it may be mentioned here, was dismissed for non-prosecution on 18.2.1996. An application for the restoration of the abovementioned petition was filed on 12.3.1996 which was accepted on 24.3.1996 and the Criminal Miscellaneous No. 147 of 1995 was restored to its original number and was to be heard, in motion, on a date to be fixed by the office. 7. To day I have heard the learned counsel for the petitioner at length. It may be pointed out here that the learned counsel for the petitioner, in para. 4 of his petition, specifically stated as under: - "4. That the petitioner is a poor man and he could not go on further appeal to the august Supreme Court of Pakistan against the decision of this Honourable Court, dated 5.6.1994." 8. I am surprised as to what prevented the learned counsel for the petitioner from disclosing the fact that the petitioner's petition for leave to appeal Ghulam Hazrat v. The State Jail Petition No. 193 of 1994, was dismissed by the Honourable Supreme Court of Pakistan on 25.1.1996. The procedure adopted by the learned counsel for the petitioner, in not disclosing the abovementioned fact, is not only highly improper but also amounts to misuse of the process of the Court. He was, therefore, advised to be careful in future. 9. Thereafter, when the learned counsel for the petitioner was asked as to how this petition could be entertained when no appeal was pending in this Court and that the matter has since been finally decided by the Supreme Court of Pakistan, referred to above he submitted that in such like matters a guideline has been laid down by the Honourable Supreme Court of Pakistan in case Nazak Hussain v. The State reported as PLD 1996 SC 178 by a Full Bench consisting of their Lordships. Mr. Justice Zia Mahmood Mirza, Mr. Justice Muhammad Munir Khan and Mr. Justice Muhammad Bashir Khan Jehangiri. It has been held as under:- For the guidance of the subordinate Courts and the citizens it is hereby laid down that:- (i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the Trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.; (ii) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or the le^al heirs of the deceased compound their right of Q^sas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, application for permission to compound the offence shall be made before the Appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C. (iii) under section 338-E(l), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused; (iv) if a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties; (v) for the purpose of determination of questions relating to the wavier or compounding of an offence, the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338- E(l), P.P.C." 10. The counsel for the petitioner, therefore, prayed that he be allowed to withdraw this petition with permission to approach the trial Court in this case under section 338-E(2), P.P.C. The request, being genuine, is granted and this petition is dismissed as withdrawn. The petitioner may now approach the trial Court which shall act in accordance with law. 11. The office is directed to see that the dictum laid down by the Honourable Supreme Court of Pakistan in case reported as PLD 1996 SC 178 is followed in letter and spirit, in future. (M.A.A.) Petition dismissed as withdrawn.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1968 Present: SARDAR MUHAMMAD RAZA, J. NOOR MUHAMMAD-Complainant versus SHER AFZAL and another-Respondents Criminal Miscellaneous No. 877 of 1995, decided on 8th April, 1996. (i) Criminal Procedure Code (V of 1898)-- —S. 514-Attendance of accused in Court, procurement of~No burden on complainant-No burden on a complainant to procure the attendance of an accused-It being a liability of the State, it is the job of the police to trace him and to produce him in compliance with the notice summons or warrants issued by the Court--If the accused is not traceable or he has changed his address without intimation to the law enforcing agencies, Courts can always resort to the sureties in order to procure his attendance. [P. 1969] A & B (ii) Criminal Procedure Code, 1898 (V of 1898)- —Ss. 497(5) & 439--Offence of Zina (Enforcement of Hudood) Ordinance (VE of 1979), S. 5/10/11-Cancellation of bail-Sessions Court had wrongly burdened the complainant for the production of accused and had not at all given any notice to the sureties to appear and to produce the accused in Court-Complainant had been condemned for no fault and his application for cancellation of bail had been rejected on wrong premises without adhering to the merits-Order of the Sessions Court was set aside under S. 439, Cr.P.C. and the application was sent back to Sessions Court for disposal on merits in the light of the observations of High Court. [Pp. 1969 & 1970] C Mr. Tasleem Hussain, Advocate for Petitioner. Malik Hamid Saeed, Addl. A.G. for the State. Date of hearing: 8.4.1996. judgment Respondent Sher Afzal son of Dina Gul resident of Sadda, Parachinar, with reference to F.I.R. No. 191, dated 18.2.1992, Police Station Faqir Abad was charged under section 5/10/11 of Ordinance VII of 1979 on the basis of a report lodged by Noor Muhammad son of Wakil Muhammad. He was released on bail by Magistrate 1st Class, Peshawar on 6.2.1995 against which Noor Muhammad filed a petition for cancellation. Mr. Ziauddin Siddiqi, learned Additional Sessions Judge, Peshawar vide his order, dated 30.7.1995 refused to cancel the bail and hence Noor Muhammad has moved this Court for such cancellation. 2. The learned Additional Sessions Judge has mainly refused cancellation on the ground that the accused belonged to Parachinar and that the complainant had failed to make any pointation. It appears to have been ignored by the learned Additional Sessions Judge that in criminal cases it has never been the burden of a complainant to procure the attendance of an accused. It is a liability of the State and it is the job of the police to trace him and to produce him in compliance with the notice, summons or warrants issued by the Court. 3. The provision of sureties while executing a bond is provided in law also to ensure the attendance of an accused. If the accused is not traceable or if his address is changed without intimation to the law enforcing agencies, the Courts can always resort to the sureties in order to procure attendance of an accused. 4. In the instant case the learned Additional Sessions Judge has wrongly burdened the complainant for the production of accused and has not at all given any notice to the sureties to appear and to produce the accused in Court. The complainant has been condemned for no fault and the bail cancellation application was thus wrongly rejected on wrong premises and without adhering to the merits. The order, dated 30.7.1995 is set aside under section 439, Cr.P.C. and the present application is accepted to the effect that the bail cancellation application, Noor Muhammad v. Sher Afzal etc. pending before Additional Sessions Judge, Peshawar is restored and the learned Judge is directed to dispose of the same on merits and in the light of this Court's observations. Petitioner to appear before the aforesaid Court on 15.4.1996. (M.A.A.) Case remanded.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 1970 Present: zeenat khan, J. GHULAM QASIM-Petitioner Versus NAZIR AHMAD and 3 others-Respondents Criminal Miscellaneous Quashment Petition No. 10 of 1995, decided on llth February, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 169~Release of accused when evidence is deficient-Powers under S. 169, Cr.P.C. can only be exercised by the police during the course of investigation when the accused is in police custody. [P. 1972] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 190-Cognizance of offences by magistrate-Taking cognizance or otherwise is a matter of thorough judicial scrutiny. [P. 1972] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 169 & 561-A-Penal Code (XLV of 1860), S. 406/419/420/468/471- Release of accused under S. 169, Cr.P.C.-Quashing of order-Taking cognizance or otherwise being a matter of thorough judicial scrutiny, Magistrate could not release the accused under S. 169, Cr.P.C. without application of his judicial mind-Magistrate had endorsed the release of the accused just because it was requested by the police-Such act on the part of the Magistrate was against the judicial norms as his job was to competently supervise the investigation and not to become a "Yes Man" of the police—Said order of the Magistrate being bad in law and devoid of legal sanctity was quashed and the case was remitted back to the Magistrate with the direction to proceed with the matter legally applying his judicial mind. [P. 1972] B, C & E (iv) Criminal Procedure Code, 1898 (V of 1898)-- —S. 561-A--Penal Code (XLV of 1860), S. 419/420/406/468/471--Quashing of proceedings-Simultaneous initiation of civil and criminal proceedings- Legality-F.I.R. prima facie has disclosed a case against accused-There being no bar in law to the simultaneous initiation or progress of civil and criminal proceedings prosecution could not be stifled by quashing the criminal proceedings simply because of the pendency of civil proceedings between the parties-Petition was dismissed accordingly. [P. 1972] D & F Mr. Muhammad Iqbal Khan Kundi, Advocate for Petitioner. Mr. Mutiullah Khan Baloch, Advocate for Respondent No. 1. Mr. Muhammad Khan Khakwani, Advocate for the State. Date of hearing: 6.2.1996. judgment The order will dispose of two Quashment Petitions Nos. 10 and 12 of 1995, as the same are the outcome of one and the same order of the learned Magistrate, dated 24.10.1995. 2. As a consequence of the impugned order, accused Nazir Ahmad was released by the Magistrate under section 169, Cr.P.C. which is under attack in Criminal Miscellaneous No. 10 of 1995 on the ground that it is based without application of mind and without giving any reason in support thereof besides it being without jurisdiction. In Criminal Miscellaneous No. 12 of 1995 it has been prayed that F.I.R. No. 586, dated 17.12.1991 under section 406/420/471/468/149, P.P.C. registered at Police Station Cantt. D.I. Khan may be quashed as the subject-matter is subjudice before a Civil Court . 3. The prosecution has put complete challan in Court on 24.10.1993 and the Court while taking cognizance has passed the following order which is under challenge in both the petitions:- "Complete challan put in Court today. As requested by the local police, the accused Nazir Ahmad is released under section 169, Cr.P.C. The remaining accused Tahir and Habibullah be summoned for 8.11.1993." In the instant case, accused Nazir Ahmad was arrested by the police on 17.12.1991 and was bailed out on 18.12.1991, meaning thereby that he was not in police custody on the day i.e. 24.10.1993, when his release was requested by the investigating agency. 4. Under section 169, Cr.P.C. an accused person under investigation can be released by the police in case there is no evidence against him, on his furnishing a bail bond to the effect that as and when required he shall appear before the Magistrate of competent jurisdiction to take cognizance in the case. It is clear that these powers can only be exercised by the police during the course of investigation when the accused is in police custody. The wisdom behind the provision of section 169, Cr.P.C. is that in case of insufficient evidence, the S.H.O. or Investigating Officer may release an accused person for the time being and a bond is taken for the reason that the said person will appear before the Magistrate as and when required, particularly at the time when the challan is submitted before the Magistrate competent to take cognizance. Only then the Magistrate shall apply his mind to the merits of the case and would see if cognizance of the offence be taken against such an accused who has already been released by the police. The Magistrate will come to know only from the fact that the accused would be placed in column No. 2 of the formal challan. Taking of cognizance or otherwise is a matter of thorough judicial scrutiny and cannot be taken as it has been done by the Magistrate concerned in the case in hand. The impugned order does not show even a single word indicative of the fact of application of mind of the said Magistrate. He endorsed the release of the accused just because it was requested by the police. This act on the part of the Magistrate is against the judicial norms. His job was to competently _, supervise the investigation and he was not to become a Yes Man of the police Therefore, it is declared that the impugned order of the Magistrate is bad in law and devoid of legal sanctity. Reference, in this context, can be made to 1990 PCr.LJ 158 and 1995 PCr.LJ 549. 5. As far Criminal Miscellaneous No. 12 of 1995 is concerned, it has been held in 1995 PCr.LJ 22 that where F.I.R.prima facie having disclosed a case against accused, prosecution could not be stifled by quashing the same simply because on the basis of pendency of civil proceedings between the parties, there being no bar in law to the simultaneous initiation or progress of civil and criminal proceedings. 6. In the light of the aforesaid discussion, the order of the Magistrate, dated 24.10.1993 is hereby quashed and the case is remitted back with the direction that he should proceed with the matter legally and apply his mind judicially. 7. The plea taken by the petitioner in Criminal miscellaneous No. 12 of 1995 also requires evidence to be adduced. In case after recording some evidence the petitioner is able to establish the civil liability in the case, then of course, he can move the trial Court under section 249-A, Cr.P.C. for the quashment of proceedings. 8. Resultantly, both the petitions are disposed of in the above terms. (M.A.A.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1973 Present: arif iqbal hussain bhatti, J. MUHAMMAD SHAFIQ and others-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 576/B of 1996, decided on 18th March, 1996. Criminal Procedure Code, 1898 (V of 1898)- —S. 497(2)~Penal Code (XLV of 1860), S. 302/34«Bail«Grant of—Except the allegation of the complainant about the taking away of his son by the accused to their house, no evidence of torture metted out to the deceased at the hands of accused Was available—Accused had been reported innocent by the Police-Attending circumstances near the dead body could lead to the inference that the deceased had committed suicide—Case against accused in circumstances required further inquiry and they were allowed bail accordingly. [P. 1974] A & B Rana Muhammad Arif, Advocate for Petitioners. Mr. J.V. Gardner, Advocate for the State. order Muhammad Shafique and Muhammad Jahangir alias Pappu, accused/petitioners, have applied for post-arrest bail in case F.I.R. No. 227, dated 8.11.1995, offence under section 302/34, P.P.C., Police Station Shalimar, Lahore . F.I.R. was lodged by Muhammad Sharif, who stated in the F.l.R. that on 7.11.1995, at 12 noon, he alongwith other family members were present in the street. Muhammad Jamil, Muhammad Shafique and Muhammad Jahangir were taking with them Muhammad Asghar, his son. On the asking of the complainant, the accused told him that Muhammad Asghar had committed theft and they wanted the recovery of the stolen property from him. Despite the requests of the complainant, Muhammad Asghar, his son was taken to the house of the accused. He was confined in a room throughout the night. He was subjected to torture. The complainant went in the morning to the house of the accused and saw the dead body of his son lying on a chair. A rope was tied around his neck and the other end of the rope was tied with exhaust-fan. After post-mortem examination the doctor reported a ligature mark measuring 33 x 2 c.m. all around the neck at the level of Thyroid Cartilage. The subcutaneous tissue under the site of ligature was parchment like, muscles of the neck showed bruises. Right cornu of Hyoid bone was fractured with bruising. There were two other linear bruises on the back of left shoulder and the back of right shoulder. The cause of death was reported as interference at the level of neck by legature under injury No. 1 leading to asphyxia and death. 2. Learned counsel for the petitioners, inter alia, submitted that except the allegation of the complainant that the three accused were seen taking his son to their house there was no evidence to torture metted out to the deceased at the hands of the accused. The petitioners were reported innocent by the police. The attending circumstances near the dead body, could lead to the inference that the deceased committed suicide. 3. I have heard the learned counsel for the parties and perused the record. In the circumstances and the evidence available, the petitioners' case requires further enquiry with regard to the commission of offence by the accused/petitioners. The petitioners are allowed bail in the sum of Rs. 50,000 each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Lahore (Cantt.). (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1974 Present: tassaduq hussain jilani, J. MUHAMMAD NAWAZ-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 2 of 1996 in Criminal Appeal No. 772 of 1995, decided on 3rd April, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 426-Suspension of sentence-Principles-Appellate Court while deciding a petition under S. 426, Cr.P.C. does not embark upon a deeper appreciation of evidence, but it does attend to the question whether the appraisal of evidence carried out by the Trial Court is in consonance with law or not and while doing so it has ordinarily to look to the judgment itself--If the Court comes to the conclusion that the appraisal of evidence and the conviction recorded needed serious examination, it may suspended the sentence. [P. 1977] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 426(l)--Penal Code (XLV of 1860), Ss. 302(b)/149, 337-F(iii)/149 & 148--Suspension of sentence-Trial Court's judgment itself showed that no overt act was attributed to the accused in the commission of murder; prima facie he was not directly connected with the motive part of the prosecution story and nothing incriminating was recovered from him-- F.I.R. lodged on the statement of co-accused for the murder of a person of the accused party qua the same occurrence was prior in time and the trial had culminated in the conviction of five persons of the complainant side-­ Legality of the accused's conviction in such circumstances required serious consideration-Sentence of accused was consequently suspended and he was released on bail accordingly. [P. 1978] B & C Mr. Nazir Ahmad Gliazi, Advocate for Applicant. Sardar Abdul Majeed Dogar, Advocate for the State. order This is an application under section 426, Cr.P.C. for suspension of sentence of Muhammad Nawaz son of Ghulam Haider, applicant-convict who stands convicted under section 302(b)/149, P.P.C. to undergo imprisonment for life, under section 337-F(iii)/149, P.P.C. 3 years' R.I. and under section 148, P.P.C. 3 years' R.I. He was also burdened with compensation of Rs. 25,000 under section 544-A, Cr.P.C. to be paid to the legal heirs of the deceased, in default whereof to undergo 2 years' R.I. and Rs. 5,000 under section 544-A, Cr.P.C. to be paid to Muhammad Amin injured or in default whereof to undergo 6 months' R.I. This was vide judgment of the learned Additional Sessions Judge, Chiniot, dated 4.9.1995. All the sentences were to run concurrently. The benefit of section 382-B, Cr.P.C. was also extended. 2. The prosecution story as given in the F.I.R. is that the land of the complainant and that of accused Muhammad Nawaz son of Ghulam Muhammad and his brothers was in the same Chak. The afore-referred uhammad Nawaz and his brothers, used to get water illegally by irrigating their lands by making cuts In Rajbah. On 15.10.1991, Muhammad Nawaz etc. allegedly made two cuts in the Rajbah. On coming to know about these cuts, the complainant, alongwith Mahla, Muhammad Amin and Lai proceeded to the place where the cuts had been made. At. 7.00 a.m. when they reached near the place, accused Allah Bakhsh son of Muhammad Siddique, Nawaz, Sarfraz, Gulzar and Riaz sons of Ghulam Muhammad and petitioner Nawaz sons of Ghulam Haider armed with guns, were present. Zafar Abbas armed with rifle was also present there. Having seen the complainant and others, they started firing. First shot was allegedly made by Allah Bakhsh which did not hit anybody. Second shot was fired by Sarfraz accused which hit Muhammad Amin on his left thigh who fell down. Thereafter Nawaz son of Ghulam Muhammad fired which hit Mahla on his head on left side who also fell down. It was also alleged that Allah Bakhsh convict and Riaz hit their own companion, namely, Muzaffar Ali Shah and he died at the spot. Muhammad Amin son of Dost Muhammad received one lacerated wound and Zulfiqar alias Mahla deceased received one lacerated wound on the head which proved fatal. 3. During investigation, five co-accused absconded and only Allah Bakhsh and Muhammad Nawaz son of Ghulam Haider were tried. The ocular account in the instant case was furnished by Muhammad Jahangir (P.W. 10) and Lai (P.W. 11). The prosecution also relied upon evidence of recovery of guns P. 4, P. 5 and P. 6, Sarfraz, Riaz and Nawaz sons of Ghulam Muhammad were absconded accused. According to learned trial Court, the recoveries were not witnessed by any independent witness and since no empties were recovered from the place of occurrence, the recovery of guns was of no help to the prosecution case. As per statement of co-convict Allah Bakhsh recorded under section 342, Cr.P.C., it was their turn of water and the complainant party had made cuts and were present at the Moga. One of their servants, namely Waris was apprehended by them. He went to the spot alongwith Muhammad Nawaz and Muzaffar Shah where they were attacked and in defence Muzaffar Shah fired which hit Muhammad Amin and Zulfiqar deceased. On his statement a case was registered vide F.I.R. No. 579/91, dated 5.10.1991 (Exh. D.B.) which is prior in time. The afore- V referred Muzaffar All according to him, was done to death by the complainant patty in the said occurrence. 4. According to learned trial Court, the ocular account stood orroborated by the motive (though according to learned trial Court not the ne which was alleged by the prosecution.) 5. Learned counsel for the applicant-convict has sought suspension of the sentence on the following grounds:- (i) That the learned trial Court has convicted the applicant convict on a mistaken belief that it was applicant-convict who fired at Mahla deceased which proved fatal. Reference was made to page 14 of the judgment wherein statement of P.W. 11 Lai was reproduced to the following effect- "Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down." (ii) that the learned trial Court has made inconsistent observations qua recovery of gun P.6. On the one hand while reproducing statement of P.W. 8 Umar Daraz, it observed that Nawaz son of Ghulam Haider, applicantconvict led to recovery of gun P. 6 whereas in para. No. 12 it was observed that it was Nawaz son of Ghulam Muhammad who led to recovery of gun P. 6; (iii) that Rana Muhammad Nawaz, S.P. Range Crimes, during investigation opined that the applicant-convict was innocent." 6. Learned counsel for the State on the other hand, has vehemently opposed the prayer for suspension of sentence by submitting that applicantconvict was specifically named in the F.I.R. and that he came armed with eadly weapons, formed an unlawful assembly and therefore, he was vicariously liable for the murder of Zulfiqar alias Mahla. On a Court query, learned counsel admitted that the applicant-convict did not lead to recovery of any weapon of offence; that gun P. 6 was recovered from co-accused Muhammad Nawaz son of Ghulam Muhammad who absconded during trial. Learned counsel further admitted that the applicant-convict was not connected with the motive part of the prosecution story as is evident from a bare reading of F.I.R. Exh. P. J./l which has been reproduced in para. No. 2 of the j udgment. 7. I have heard learned counsel for the parties and have also gone through the record. 8. A Court of appeal while deciding a petition under section 426, Cr.P.C. does not embark upon a deeper appreciation of evidence. But it does attend to the question whether the appraisal of evidence carried out by the learned trial Court is in consonance with law or not. However, while doing so it has ordinarily to look to the judgment itself. If it comes to the conclusion that the appraisal of evidence and the conviction recorded needed serious examination, it may suspend the sentence. 9. In Abdullah Khan v. Karam Dad Khan and another 1968 SCMR 1064 the order of the High Court was upheld by the Honourable Supreme Court wherein the sentence of a convict had been suspended who was attributed Lalkara only. In Sattu Khan and others v. The State 1988 SCMR 241 the Honourable Supreme Court suspended the sentence of the convict wherein the plea of right of self-defence raised by the accused had been rejected by the High Court but the matter required serious consideration. In Mst. Latif Bibi v. Abdul Ghafoor and another 1994 SCMR 1727 the Honourable Supreme Court did not interfere in the order of the High Court in which the sentence was suspended of a convict who was not attributed any injury to the deceased. 10. While referring to the statement of Lai (P.W. 11) the learned trial Court appeared to be under a misconception that it was applicantconvict who was attributed the fatal shot In paragraph at page 14 statement of (P.W. 11) was reproduced to the following effect - "Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down." A bare reading of para. 2 of the judgment would show that the afore-referred narration (qua the role ascribed to Nawaz son of Ghulam Haider, applicantconvict) is inconsistent with prosecution case in terms of which the fatal rather the only shot is attributed to Nawaz son of Ghulam Muhammad who absconded during trial. Admittedly, one person of the applicant-convict's side, namely, Muzaffar Ali, was killed in the same occurrence. A case was registered vide F.I.R. No. 579/91 (Exh. D.B.) on the complaint of Allah Bakhsh co-convict. Five persons of the complainant party including Muhammad Amin injured (not produced) were tried and convicted under section 302, P.P.C. and sentenced to life imprisonment vide judgment, dated 2.9.1995. Taking note of the counter-version and the fact that the prosecution withheld the most important witness, namely, Muhammad Amin, injured, the learned trial Court at page 32 of the judgment, observed that: "It is to be mentioned here that both the sides have not come forward with a true picture about the motive for the occurrence. As there is cross-version therefore, both the sides tried their best to conceal what happened at the time of the occurrence over which this fight between the parties started and life of one person from each side was lost." Prima facie, the motive is attributed to Muhammad Nawaz son of Ghulam Muhammad and his brothers who used to get water illegally to irrigate their lands by making cuts in Rajbah. The concession of the learned State Counsel on this score, may not be against the record. The applicant-convict was declared innocent during investigation and remained on bail during trial. The complainant side received only two injuries i.e. one by Zulfiqar alias Mahla deceased which is attributed to Nawaz son of Ghulam Muhammad and the other received by Muhammad Amin (not produced) which is attributed to Sarfraz accused. It is apparent from the judgment itself that no overt act is attributed to applicant-convict in the commission of murder; prima facie, he is not directly connected with the motive part of the prosecution story; nothing incriminating was recovered from him; the F.I.R. lodged on the statement of Allah Bakhsh co-convict for the murder of Muzaffar Ali qua the same occurrence is prior in time and the trial culminated in the conviction of five persons of the complainant side. In these circumstances, the legality of the applicant's conviction under sections 302/148/149 and 337-F(iii), P.P.C. requires serious considerations. 11. For what has been discussed above and respectfully following the precedent case-law, the sentence of the applicant-convict Muhammad Nawaz son of Ghulam Hadier, is suspended and he is released on bail provided he furnishes bail bonds in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of learned trial Court. (M.A.A.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1979 (DB) Present: ARiF iqbal HussAiN BHATTi, and rao naeem hashim khan, JJ. JABBAR AHMED-Appellant versus STATE-Respondent Criminal Appeal No. 338 of 1994, heard on 10th December, 1995. (i) Criminal Procedure Code, 1898 (V of 1898)- —-S. 356(1 )--"Taking down of evidence" as envisaged by S. 356(1), Cr.P.C. means taking down statement of witness in full in each case-As such the record of the deposition of each witness in the Trial Court must be a faithful account of what a witness stats in each case before the Court- Copy of statement of a witness from the other case in any manner would constitute a serious and grave infringement of the provisions of S. 356(1), Cr.P.C. [P. 1982] A (ii) Criminal Procedure Code (V of 1898)-- —-S. 537--Scope-Section 537, Cr.P.C. does not have any scope of curing the material irregularity or illegality-Omission, error or irregularity curable under the section is of formal, minor and technical nature which may occur due to oversight, but does not include a substantial or willful departure from the proper course of the conduct of trial as laid down by the law. [P. 1983] E (iii) Criminal trial-- —-Recording of evidence-Recording of evidence in criminal trials is a matter of basic and fundamental character and strict adherence and compliance to the procedure prescribed for the purpose is necessary to ensure proper conduct of trial and for a fair decision and administration of justice in the case on the basis of evidence brought on record in each case. [P. 1983] C (iv) West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —- S. 13-Criminal Procedure Code, 1898 (V of 1898), Ss. 356(1) & 537- Criminal trial-Preparation of record by Trial Court-Procedure adopted by Special Court in copying evidence of witnesses from the file of one case to that of the other case was a serious departure form the usual and proper course of trial and was not only an omission or an irregularity but grave and gross illegality vitiating the whole trial not curable under S. 537, Cr.P.C.-Conviction and sentence of accused were set aside in circumstances. [Pp. 1983 & 1984] B, D & F Khawqja Sultan Ahmad, for Advocate Appellant. Zahid Farani Sheikh, Asstt. A.G., Pb. for the State. Date of hearing: 10.12.1995. JUDGMENT Rao Naeem Hashim Khan, J.--Jabbar Anwar son of Muhammad Anwar caste Pathan resident of Pandoriyan, Police Station Mautra, Sialkot was convicted under section 13 of Arms Ordinance XX of 1965 and sentenced to five years' R.I. with a fine of Rs. 20,000 or in default whereof to suffer further R.I. for six months, vide judgment, dated 25.4.1994 passed by the learned Judge Special Court (Suppression of Terrorist Activities), Gujranwala , for possessing unlicensed klashnikov alongwith magazine. Feeling aggrieved, the appellant filed this appeal. 2. Shortly, the prosecution case is that Muhammad Ashraf, A.S.I., Police Station Kotwali, Sialkot (complainant) alongwith Muhammad Akram, A.S.I. and other police officials were on patrol duty and present at Chowk of Daira Araian, Sialkot. At about 3.00 a.m. two persons, later on recognized as Jabbar Anwar (appellant) and Karamat Ali arrived there while driving motor bike Honda No. RIJ 5162 from the side of Abbott Road. After having seen the police party, they tried to make their escape good and when tried to turn back, their motor Dike slipped and both of them fell down. Jabbar Anwar appellant was overpowered by the complainant with the help of other police official while Karamat Ali was captured by Muhammad Akram, A.S.I. with the help of remaining police officials. When the appellant was subject to personal search, he was found concealing a klashnikov (Exh. P.A.) wrapped in a cloth under his left armpit. 3. The prosecution in order to prove/establish its case produced P.W. 1 Ijaz Ahmad Khan, Fire-arms Expert, P.W. 2 Abdul Majeed Constable, P.W. 3 Muhammad Ashraf, A.S.I. and P.W. 4 Muhammad Aslam, A.S.I. Ijaz Ahmad Khan. P.W. 1 Fire-arm Expert, Forensic Laboratory, deposed that the recovered weapon was an automatic rifle of 7.62 mm bore commonly known as klashnikov. Abdul Majeed Constable No. 775 deposed that he was the member of the police party headed by Muhammad Ashraf, A.S.I. (P.W. 3) and were present at Chowk Daira Araian on patrol duty. At about 3.00 a.m. the appellant alongwith Karamat Ali appeared there while riding a motor bike and tried to run back after having seen the police but when they turned back their motor bike slipped and they fell down. By that the police party cordoned them off. A klashnikov Exh. P.A. was recovered from Jabbar Anwar. The said motor bike was also taken into custody and the same was also of robbed one. P.W. 3 Muhammad Ashraf, A.S.I./complainant and Investigating Officer of the case deposed in his statement that at about 3.30 a.m. on 14.2.1992 he alongwith Abdul Majeed onstable, Muhammad Ishfaq and Maqsood Ahmad, Head Constable etc. were on patrol duty and put a barricade in the area of Dera Araian Chowk. Meanwhile the appellant and Karamat Ali (P.O.) arrived there on a motor bike. On seeing the police party they tried to make their escape good and wanted to drive back. In the same process their motor bike slipped and they fell down. He apprehended the appellant whereas Muhammad Akram A.S.I. captured Karamat All. At that time the appellant was holding a klashnikov (P. 1) which he recovered and seized vide memo. Exh. P. A., because the appellant had no licence for the same. He also recovered motor bike No. RIJ- 5162 (P. 2) (robbed one) from the possession of the appellant and Karamat Ali which was taken into custody. A separate case vide F.I.R. No. 45/92 dated 14.2.1992 was registered in this regard. He prepared a rough sketch of place of recovery (Exh. P.C.). After completion of investigation he submitted the challan against the appellant P.W. 4 Muhammad Aslam, A.S.I. recorded the formal F.I.R. Exh. P.B./l on receipt of the complaint (Exh. P.B.). 4. At the conclusion of the trial the appellant was examined under section 342, Cr.P.C. wherein he denied the charges levelled against him and pleaded innocence. He stated that in fact he was arrested by Muhammad Ashraf, A.S.I., C.I.A. Staff, Daska from Daska Town and was handed over to C.LA, Staff, Sialkot who in connivance with Nazir Ahmad, S.I. and S.H.O. Police Station, Kotwali planted a klashnikov on him. He further added that the matter was also thoroughly investigated by the then A.D.I.G., Gujranwala Range (Mr. Iftikhar Hussain Jafferi) who declared him innocent and recommended the case for discharge on 13.5.1992. He, however, neither appeared on oath as envisaged under section 340(2), Cr.P.C. nor produced any defence evidence. 5. At the very outset of the arguments, learned counsel for the appellant vehemently raised objection on the procedure adopted by the Judge, Special Court for examination of witnesses in the instant case. Added, that two separate challans were submitted against the appellant, one vide F.I.R. No. 45/92, dated 14.2.1992 under section 392, P.P.C. and second vide F.I.R. No. 46/92, dated 14.2.1992 under section 13 of Arms Ordinance XX of 1965. Trial in both these cases were held separately but the evidence was recorded only in the former case and statements of all the P.Ws. were copied verbatumly in the latter case except the statement of P.W. 1 Fire-Arms Expert, which is quite illegal and against the provisions of Code of Criminal Procedure. The second contention of the learned counsel for the; appellant was that the appellant was acquitted of the charge under section 392, P.P.C. as no one came forward in support of this F.I.R. or to claim the allegedly stolen motor-cycle. Thirdly he submitted that the instant case against the appellant was also thoroughly probed and investigated by the then A.D.LG., Gujranwala Range who declared the appellant innocent and recommended for the discharge of the appellant in both the cases (F.I.R. No. 45/92 under section 392, P.P.C. and instant case F.I.R. No. 46/92 under section 13/20/65 and submitted that investigation conducted by an higher Officer should be given more weight and credence to that of the junior Officer Muhammad Ashraf, A.S.I. Lastly, he reiterated that trial in the instant case stands vitiated on the sole ground that legally no evidence has been recorded in the case. 6. Learned Assistant Advocate-General, Punjab opposed the contentions raised by the learned counsel for the appellant and submitted that if there has been a substantial compliance with the procedure, an infringement of a provision a matter relating to the conduct of trial cannot always deemed to be an illegality necessary vitiating the proceedings of the same have no prejudice to the accused. He was of the view that main point to be considered was that whether the accused/appellant had faced a fair trial despite transgression of the prescribed rule of procedure and even if there is an illegality due to breach of mandatory provisions, this Court will not interfere except in case of failure of justice. 7. We have heard the arguments advanced by both the sides and have perused the records carefully and found that statements of all witnesses in this case except one were merely copied and imported from the record of another case. Only one statement of P.W.. 1 Fire-Arms Expert was recorded in the instant case independently and in respect of the statements serial numbers were changed accordingly. Abdul Majeed (P.W. 2) and Muhammad Ashraf P.W. 3 who figured as P.W. 1 and P.W. 2 respectively in case F.I.R. o. 45/92 under section 392, P.P.C. were examined on 17.2.1994 in both cases. Similarly Muhammad Aslam P.W. 4 who appeared as P.W. 3 in case F.I.R. No. 45/92 was also examined on the same day in the instant case on 6.3.1994. Examination-in-Chief in one case is a reproduction in the instant case. In the instant case serial number of P.Ws. were changed as statement of Fire-Arms Expert was an additional evidence in the case. Corrections are also the same in both the cases. The crucial point for consideration was that whether the mode of trial adopted by the trial Judge was a mere error or irregularity curable under the provisions of section 537, Cr.P.C. or it was such a grave irregularity which had vitiated the proceedings incurable and quashment of conviction of the appellant. Before discussing the point, let us see the relevant provisions of law. Mode of taking and recording evidence in inquiries and trial has been given in Chapter XXV of Criminal Procedure Code. Subsection (1) of section 356 is relevant here, which is reproduced below:- "In the trials before Court of Sessions and in inquiries under Chapter XII, the evidence of each witness shall be taken down in writing in the language of the Court by the Magistrate or Sessions Judge, or in his presence and hearing and under his personal direction and superintendence and shall be signed by the Magistrate or Sessions Judge." It is crystal clear from the words and language of the above-quoted section that taking down evidence means taking down statement of witness in full in each case. As such the record of the deposition of each witness in the trial Court must be a faithful of what a witness states in the each case before the Court. Copying of statement of a witness form the other case in any manner should constitute a serious and grave infringement of the provisions supra Now we come to the proposition raised by the learned Assistant Advocate .General. Section 537 of the Criminal Procedure Code, covers, irregularities in the proceedings so that the person who committed an offence should not escape from punishment merely on technical grounds which did not affect the merits of the case and substantial justice. Section 537, Cr.P.C. is reproduced hereunder:- "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 Police Officer under section 173, summons, warrant, charge, proclamations, order, judgment or other proceedings before or during trial or in 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.-ln 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." Answer to the prosecution put forward by the learned Assistant Advocate-General is that the procedure adopted by the learned Judge, Special Court in copying evidence of witnesses from the file of one case to that of the other case a serious departure from the usual and proper course of trial and was not only an omission, irregularity but grave and gross illegality. Recording of evidence in criminal trials is a matter of basic and fundamental character and strict adherence and compliance to the procedure prescribed for the purpose is necessary to ensure proper conduct of trial and a fair decision and administration of justice in the case on the basis of evidence brought on record in each case. If a trial is contrary to law how it can be termed as fair trial, rather it is no trial at all in the eyes of law and disobedience to an express and mandatory provisions of law as to the mode of trial is not therefore, an irregularity which can be cured under the provisions of section 537 Cr.P.C. but is such an illegality which vitiates the whole trial. Section 537, Cr.P.C. do not have any scope of curing the material irregularity or illegality. The omission, error or irregularity which can be cured by this section are of formal, minor and technical nature, which may occur due to oversight but do not include a substantial or wilful departure from the proper course of the conduct of trial as laid down by the law. 8. For the reasons given above, we feel no hesitation in accepting of appeal and setting aside the judgment and conviction. The appellant shall be released immediately if not required in any other case. 9. The appellant was arrested on 14.2.1992 and was bailed out on 3.7.1993. He was taken into custody after his conviction on 25.5.1994 and since then he is undergoing rigorous imprisonment. In these circumstances it is not a fit case for retrial. Order accordingly. The above are the detailed reasons in continuation of our short order passed on 10.12.1995. ?->- (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. (Lahore) 1984 Present: Miss tallat yaqub, J. Mst. SHAHNAZ AKHTAR-Petitioner versus TAHIR ISLAM-Respondent Criminal Miscellaneous No. 220/H of 1996, decided on 4th March, 1996. Criminal Procedure Code, 1898 (V of 1898)- —S. 491— Habeas corpus petition-Respondent's mother-in-law appeared to have filed the petition mala fidely for the recovery of her daughter alongwith two minor children from the illegal and unlawful custody of the respondent who was admittedly the husband and father of the said alleged detenus-It being the choice of the husband to live anywhere with his family members, his mother-in-law (petitioner) could not force him to live at a particular place against his wish-Custody of the respondent of his own wife and children could not be shown to be illegal-Petition being entirely misconceived was dismissed in limine. [P. 1985] A Qazi Muhammad Saleem, for Petitioner. order The facts giving rise to this petition are that the respondent was married to Mst. Iffat Islam detenu. Out of the wedlock two children namely, Munir Islam aged 8 years and Maryam Islam aged 4 years were born. It is alleged in this petition that Mst. Iffat Islam was a School Teacher at Mosaland East at Manchester . On 25.12.1995, Mst. Iffat Islam alongwith her children and husband came to Pakistan for two weeks but after the expiry of said period, the respondent did not allow them to go to England ; hence they are being detained illegally by the respondent and it is requested that a writ in the nature of habeas corpus he issued against him. 2. This a novel type of petition. Admittedly, the respondent is the husband of Mst. Iffat Islam and father of the minor children. On my asking, how the custody of the respondent of his own wife and children is illegal, learned counsel failed to give any answer. It appears that the respondent wanted to settle in Pakistan and so the alleged detenus but the mother-inlaw of the respondent has mala fidely filed this petition. It is the choice of the husband to live anywhere with his family members, but the mother-in-law (petitioner) cannot force him to live at a particular place against his wish, which is the position in the present case. Thus, this petition being entirely misconceived is dismissed in limine. (M_A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 1985 [DB] Present: mian nazir akhtar and iftikhar hussain chaudhary, JJ. M.A. RASHID-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 74/B of 1996, decided on 4th March, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497~Offences in Respect of Banks (Special Courts) Ordinance (K of 1984), S. 5(6)-Bail-Grant of-Prayer for-Prohibition for grant of bail to accused—Such prohibition is applicable to all the scheduled offences irrespective of the fact whether they are bailable or non-bailable or fall within the prohibitory clause of S. 497(1), Cr.P.C. or not and whether bail is claimed under the first or third provisos to S. 497, Cr.P.C.~Provisions embodied in S. 5(6), of the Offences in Respect of Banks (Special Courts) Ordinance, 1984, however, do not constitute a complete code for grant of bail. [P. 1988] A (ii) Criminal Procedure Code, 1898 (V of 1898)- —S. 497(2)--Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S. 5(6)~Penal Code (XLV of 1860), S. 409/420/468/471/477-A/109-Prevention of Corruption Act (II of 1947), S. 5(2)-Bail, grant of~ Matter having been brought to the notice of the Chief Executive of the Bank, accused could not unilaterally pass an order to freeze the Bank accounts, nor he was shown to have any legal duly or obligation to do so, he however, on the direction of the Chairman at once complied with the order for freezing the Bank Accounts-Accused was not concerned either in the matter of issuance of a cheque book to co-accused and making entries for transfer of accounts, or opening of Bank Account in the name of co-accused and withdrawal of Rs. 20 lacs from the same-Accused had not signed any forged cheque or document and no financial loss was cuased to the Bank by any act or omission on his part—No reasonable grounds, thus, existed to believe at such stage that the accused had committed the alleged offences and case against him needed further inquiry-Accused was admitted to bail in circumstances. ^ [Pp. 1992 & 1993] B, C & E (iii) Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984)-- —S. 4(7)--Charge--Charge in the context of S. 5(7) of Offences in Respect of Banks (Special Courts) Ordinance, 1984 means an accusation of offence levelled by the complainant in the F.I.R. or prima facie made out against an accused from the material collected by the Investigating Agency-­ Charge has directed nexus with a penal offence and cannot be equated with the bald opinion of the Investigating Officer contained in his report under S. 173, Cr.P.C. [P. 1993] D Sh. Zamir Hussain. Advocate for Petitioner. Muhammad Fayyaz Ahmad Khawaja, Special Public Prosecutor for the State. Mr. Naeem Sehgal, Advocate for the Complainant. order Mian Nazir AWitar, J.--The petitioner has applied for grant of bail in a case registered against him and others vide F.I.R. No. 10 dated 20.9.1995 for offences under section 409/420/468/471/477-A/109 of the P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at Police Station F.I.A./S.I.A., Islamabad. 2. The F.I.R. was recorded on the written complaint submitted by Jamshed Shah, Managing Director of the Bank of Punjab, Lahore. It contains 18 allegations out of which allegation No. 9 directly relates to the petitioner. It reads as under:- "Furniture/fixtures amounting to Rs. O.I million each were provided under the orders of Mr. Tajjammal Russian to Messrs Rashid and Rana Asghar Ali, General Manager without any entitlement. On their retirement, these officers neither surrendered the furniture etc. nor paid its book value to the Bank of punjab, thus, causing loss to the Bank." Subsequently, during the course of investigation, the petitioner was sought to be connected with allegation No. 18. It relates to withdrawal of Rs. 133,135,223 from the account of Messrs National Industrial Cooperative Finance Corporation maintained at the main branch of the Bank of Punjab at Lahore, in violation of the attachment order issued by the Deputy Registrar Cooperatives, Lahore. Originally, in the F.I.R., the said allegation was levelled directly against Mr. Tajjammal Hussain, Chairman of the Bank and Awais Zia Butt. 3. In the report prepared by the Investigating Officer under section 173, of the Cr.P.C. it is mentioned that on 22.8.1991, Ghulam Rasool Bhatti, Inspector, Cooperatives, Lahore went to the Bank at about 10.00 a.m. with an attachment order issued by the Deputy Registrar, Cooperatives, Lahore. First of all, he met Arshad Khan, Chief Manager, who sent him to the petitioner and he sent him to the Office of the Chairman. The Chairman called the petitioner and told him to receive the copy of the order, obtain legal advice from the counsel and make the Inspector wait in a room. It is alleged that the Bank account was not frozen by Tajammal Hussian, Exh. M.D., and the petitioner with mala fide intentions. The Inspector waited till 4.30 p.m. and then he delivered the order to Ayyaz Rashid, Officer in the Main Branch and obtained the receipt from him. Prior to that, at about 12.00 p.m. Ch. Abdul Majeed, Chief Executive of the N.I.F.C. reached the office of the Chairman and obtained a cheque book bearing Nos. 248001-248100 through Ayyaz Rashid, Manager of the Main Branch. Ch. Abdul Majeed got a sum of Rs. 13,31,35,223 transferred to different accounts. On the same day, P.L.S. Account No. 1340 was opened in the name of Mr. Awais Zia Butt and a sum of Rs. 10,39,13,000 was transferred in the said account through 25 cheques. The said Mr. Awais Zia Butt also got a cheque of Rs. 20,00,000 encashed on 22.8.1991. It is alleged that the above transaction were illegally made after receipt of order for freezing the accounts. 4. The petitioner was arrested on 8.1.1996 after dismissal of his pre- arrest bail by the learned Special Court (Offences in Banks), Rawalpindi. His post-arrest bail petition was also dismissed by the Special Court vide order, dated 12.1.1996. Hence this petition. 5. The petitioner's learned counsel urged that furnishing grant of Rs. 1,00,000 was provided to all the Chief Managers which was to be written off after 3 years; that the bank never demanded the said amount back from the petitioner and in case it was now demanded, the petitioner would readily return the same to the Bank; that it was the duty of the Chairman or the concerned Branch Manager to have complied with the order regarding attachment of the accounts; that the petitioner did not figure in the matter as he was working in the Head Office as General Manager Accounts; that initially, the Branch Manager was supposed to comply with the order and subsequently when the matter was brought to the notice of Tajjammal Hussain, the Chief Executive of the Bank, he was authorised to order that the accounts be frozen; that the petitioner had merely sent the Inspector Cooperatives to the Office of the Chairman who later called him and told him to take legal advice and make the Inspector wait in a room; that the subsequent orders, dated 12.9.1991 and 14.9.1991 issued by the Government of the Punjab, Cooperative Department allowing the Bank to release the accounts/Bank transactions made on 22.8.1991 amount to validation of the acts done on 22.8.1991; that violation of the order issued by the Deputy Registrar, Cooperatives at the most amounted to an offence under section 44-E of the Cooperative Act, 1925 which was not a scheduled offence; that the petitioner had no direct dominion over property and never committed breach of trust, cheating or forgery to attract penal provisions under sections 409, 468, 471 and 477-A of the P.P.C. and that the petitioner is weak and infirm person aged about 69 years, is suffering from heart ailment and piles and his ailments cannot be properly treated in jail. On the other hand, learned Special Public Prosecutor urged that by virtue of the mandatory provisions of section 5(6) of the Ordinance, the petitioner cannot be released on bail as there appear reasonable grounds for believing that he is guilty of the scheduled offences; that there is sufficient material on the record to show that the petitioner was also aware of the fact that the Bank accounts were to be frozen under the orders of the Deputy Registrar, Cooperatives but he did not comply with the same; that the warrants issued by the Deputy Registrar were addressed to the Head Office of the Bank and the petitioner was also working as General Manager, Accounts in the Bank; that the public at large has suffered due to the withdrawals made from the account of the N.I.F.C. in the presence of the order issued by the Deputy Registrar, Cooperative medical grounds. The learned counsel for the complainant urged that the tjgtilinnfijL was, UahLe. Uka his. cn.-aec.usad, thai ha hai writtao. lattar_ s dated 28.8.1991 which clearly showed that he was aware of the order for freezing the Bank account but did not comply with the same and that he did not deserve bail on medical grounds. In reply, learned counsel for the petitioner explained that the petitioner had writteu letter, dated 28.8.1991 after receiving the directions from the Chairman on 24.8.1991. He submits that letter, dated 24.8.1991 from the Secretary, Cooperatives was received by the Chairman of the Bank who directed Mr. Arshad Khan, General Manager and the petitioner to comply with the same strictly. Thereafter, the petitioner complied with the directions and wrote letter, dated 28.8.1991 stating therein that the Bank accounts had been frozen. 6. By virtue of the provisions of section 5(6) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 bail is not to be granted to an accused if there appear reasonable grounds for believing that he has been guilty of a scheduled offence. The prohibition is applicable to all the scheduled offences irrespective of the fact whether the same are bailable or non-bailable, or fall within the prohibition of section 497 of the Cr.P.C. or not and whether bail is claimed under the first or third provisos to section 497 of the Cr.P.C. However, the provisions embodied in section 5(6) of the Ordinance do not constitute a complete Code for grant of bail as held in the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599. It was clarified in the said precedent that all provisions contained in the Cr.P.C. relating to grant of bail shall not be excluded. The relevant part contained in para. 18 of the judgment is reproduced below:- "It is, therefore, dear that section 5(6) of the Ordinance does not completely oust the applicability of section 497 of the Code in respect of bails and though the rule of subsection (1) of section 497 with a slight change and the exception to the said rule as contained in the second proviso of the same subsection have been introduced in subsection (6) of section 5 of the Ordinance, which is couched in negative language, no express or implied ouster of the remaining provisions of section 497 of the Code can be spelt out from subsection (6) of section 5 of the Ordinance." It was further held that the provisions of first and third provisos to subsection (1) of section 497 of the Cr.P.C. which create exceptions to the rule contained in that subsection cannot be read into subsection (6) of section 5 of the Ordinance. It was concluded: "The provisions of first proviso to subsection (1) of section 497 of the Code would therefore, be deemed to be dearly not available to the Special Court or the High Court when dealing with the bail of a person accused of a scheduled offence under the Ordinance." Hence it is not possible to allow bail to accused persons merely on the grounds of womanhood, tender or old age, sickness or infirmity. The judgment in Khalid Farooq's case was referred to in the recent judgment in the case of Chaudhry Shiyaat Husscdn v. The State 1995 SCMR 1249 and it was held that the difference appearing in section 5X6) of the Ordinance was the fetter on the Special Court's discretion to first find as a fact that there appeared no reasonable ground for believing that the accused was guilty of a scheduled offence even where the punishment was not severe, such as death, imprisonment for life or imprisonment for 10 years, leaving the conditions contained in second proviso to subsection (1) of section 497 of the Cr.P.C. intact. It was further held that the Ordinance did not completely oust the applicability of section 497 of the Code in respect of bails. The relevant part reads as under:- "Whilst the provisions of the first and third provisos to subsection (1) of section 497 of the Code may be treated as not available to the Special Court or the High Court, such a situation would not apply to subsections (2) to (5) of section 497 of the Code, as they do not affect the rule stated in subsection (6) of section 5 of the Ordinance. These provisions would not stand excluded whether expressly or by necessary intendment or implication. In the final analysis, it is not possible to subscribe to the view that section 5(6) of the Ordinance constitutes a complete Code for the grant of bail to persons accused of offences mentioned in the Schedule to the exclusion of all provisions in the Code relating to the same subject." Hence we will proceed to consider the petitioner's claim for bail in the light of the provisions of section 5(6) of the Ordinance read with subsection (2) of section 497 of the Cr.P.C. 7. After carefully perusing the material on the record, we find that in the elaborate F.I.R. the only direct charge against the petitioner pertained to the furnishing grant of Rs. 1 lac (embodied in allegation No. 9 reproduced in para. 2 above). The amount of Rs. 0.1 million was provided to the General Managers for renovation and refurnishing of their residences. The petitioner's learned counsel has placed on record letter, dated 7.12.1992 (Annexure "E") containing the decision of the Bank to provide furnishing grant of Rs. 1,00,000 to the General Managers. The said amount was to be debited to deferred cost account and was to be written off in three years' time. It cannot be claimed that the said amount was provided to the petitioner without any entitlement After the expiry of 3 years, the said amount stands written off. Even otherwise, the Bank never demanded the said amount back from the petitioner. The petitioner's learned counsel has candidly stated that if the amount is demanded back even at this stage the petitioner would have no objection to return the same. Prima facie, no reasonable grounds exist to show that the petitioner is guilty of any penal offence in respect of the above-referred furnishing grant of Rs. 1,00,000. 8. As regards the petitioner's liability qua the transactions made on 22.8.1991, we find that at this stage there is no reliable material to connect the petitioner with the said transactions. The material collected by the Investigating Officer shows that the cheque book was issued to Ch. Abdul Majeed accused in the office of Tajammal Hussain through Ayyaz Rashid, Manager, Main Branch of the bank. The petitioner did not figure in the matter. The petitioner was also not concerned with the transfer of cash in different accounts through various cheques issued by Ch. Abdul Majeed. Similarly, in the matter of withdrawal of Rs. 20 lacs on the basis of cheque issued to Awais Zia Butt, the petitioner was not concerned. Hence, prima facie he could not be saddled with penal labilily in the matter. urprisingly Arshad Khan, Chief Manager whose role was somewhat similar to that of the petitioner and Ayyaz Rashid, Manager Main Branch who was directly connected with the issuance of cheque book to Ch. Abdul Majeed and the subsequent bank transaction made on 22.8.1991, were not arrayed as accused in the case. Instead, they have been examined as prosecution witnesses. This act of pick and choose on the part of the prosecution smacks of mala fides. May be, the petitioner had refused to become a witness and was implicated as an accused. Anyhow, without going into deeper merits of the case, we may observe that, prima facie, the petitioner is not connected with the bank transaction made on 22.8.1991 relating to an amount of Rs. 13,31,35,223. The charge pertaining to the said amount concerns Tajammal Hussain, Ch. Abdul Majeed, Awais Zia Butt accused and Ayyaz Rashid P.W. Apart from the fact that the petitioner had sent the Inspector Cooperatives to the office of the Chairman of the Bank on 22.8.1991 and subsequently made him wait a room, there is no other material to show that the petitioner had abetted his co-accused in Respect of the disputed Bank transactions made on 22.8.1991. Apparently, the other acts of issuance of cheque book to Ch. Abdul Majeed, issuance of various cheques by him, transfer of Bank accounts and withdrawal of an amount of Rs. 20 lacs were done without the petitioner's knowledge who remained present in his office. 9. The warrant for attachment issued by the Deputy Registrar Cooperatives was addressed to Ghulam Rasool Bhatti, Inspector Cooperatives, Manawan, Lahore. Its operative part reads as under: - "These are to command you to please attach the entire amount of the National Industrial Cooperative Finance Corporation Ltd., Central Office, Lahore lying in Sundry Account with the Bank of Punjab, Head Office, Lahore and keep the same under safe and secure custody until the further order of this Court and you are further commanded to return this warrant with an endorsement certifying the date on which and the manner in which it has been executed or the reasons why it has not been executed on or before 31.8.1991." The Inspector was under a legal obligation to take requisite steps to attach the amount of N.I.F.C. lying in its account at.the Bank of Punjab, Head Office, lahore and to keep the same under safe and secure custody. After doing the needful, he had to return the warrant with an endorsement certifying the date on which and the manner in which it had been executed or had to give reasons why it could not be executed. No such certificate of the Inspector exists on the record, at least, none has been brought to our notice. It seems surprising that after reaching the Bank and meeting the Chief Executive of Bank, he kept sitting in a room like a guest or went on moving from one room to another in the Bank from 10.00 a.m. to 4.30 p.m. (as stated by him in his statement under section 161, of the Cr.P.C.). He did not make any serious attempt to attach the amount of the N.I.F.C. or take the account books in his possession. Anyhow, after delivering the attachment order to Ayyaz Rashid, he returned and might have reported to the concerned authority his failure to execute the warrant of attachment. Thereafter, the Secretary, Cooperatives directly addressed letter, dated 24.8.1991 to Tajammal Hussain, Chairman of the Bank advising him to freeze the amounts credited by virtue of the cheques issued by Messrs National Industrial Cooperatives Finance Corporation. After receipt of this letter, the Chairman called Mr. Arshad, Chief Manager and the petitioner and directed them to comply with the order strictly. Thereafter the petitioner wrote letter, dated 28.8.1991 to the Secretary, Cooperatives, Government of the Punjab, inter alia, staling therein that the account of the Co-operative Society stood frozen and that no amount was being allowed to be withdrawn. As regards the verbal direction for reversal of entires pertaining to transfer of accounts, the petitioner in his reply referred to the legal advice and solicited dear orders to the Bank for reversing the same. The reply dated 8.9.1991 from the Deputy Secretary, Co-operatives, Lahore was as under: - "The difficulties in reversing the entires as pointed out by your legal advisor have been noted by us. We, however, feel that we have nothing further to advise in the matter and the Bank only to take such action as it deems fit in the light of its charter and the legal advice referred to above." Again, on 14.9.1991 the Registrar, Cooperatives wrote another letter allowing release of amounts pertaining to the bank transactions made on 22.8.1991, though the same were allegedly made in violation of the warrant of attachment issued by the Deputy Registrar, Cooperatives. The question whether the said transactions were made before or after the receipt of the order of attachment is also a bone of contention between the Bank and the Government. It can be properly determined after recording evidence at the trial. Even if it is presumed that the transactions were made after the receipt of warrant of attachment, prima faice the petitioner cannot be saddled with penal liability for more than one reason, as given below:- First, the matter had been brought to the notice of the Chief Executive of the Bank and the petitioner could not unilaterally pass an order to freeze the Bank accounts. Second, the prosecution has not brought anything on the record to show that it was the legal duty or obligation of the petitioner to pass an order for freezing the bank accounts. Third, as soon as the Chairman, directed the petitioner to comply with the order for freezing the bank accounts, he did the needful. Fourth, the petitioner was not concerned in the matter of issuance of a cheque book to Ch. Abdul Majeed on 22.8.1991 and making of entries for transfer of accounts. Fifth, in the matter of opening of Bank account bearing PLS No. 1340 in the name of Awais Zia Butt and withdrawal of an amount of Rs. 20 lacs from thesame the petitioner was not concerned. Sixth, he is not signatory to any forged cheque or document. Seventh, no financial loss was caused to the Bank as a result of any act of omission or commission on the part of the petitioner. Eight, the Secretary, Cooperatives subsequently permitted the release of amounts in pursuance of the bank transactions made on 22.8.1991. Hence we find that the matter may require further probe and inquiry qua the petitioner's guilt but at this stage there are no reasonable grounds for believing that he has committed the alleged offences. 10. For the foregoing discussion, we are inclined to accept this petition and allow bail to the petitioner during the pendency of the trial. As regards the amount of the bail bond, subsection (7) of section 5 of the Ordinance enjoins that the amount of bail shall be fixed having regard to the gravity of the charge against an accused person and where the charge specifies any amount in respect of which the offence is alleged to have been committed by him, shall not be less than twice the said amount. The word "charge" has not been defined in the Ordinance. However, in the context of the provisions of subsection (7) of section 5 of the Ordinance it can be construed to mean an accusation of offence levelled by the complainant in the F.I.R. or prima facie made out against an accused from the material collected by the Investigating Agency. The word "charge" has direct nexus with a penal offence and cannot be equated with the bald opinion of the Investigating Officer contained in his report under section 173 of the Cr.P.C. The only direct charge made against the petitioner is embodied in allegation No. 9 made by the complainant regarding furnishing grant of Rs. 0.1 million. The other charge embodied in allegation No. 18 relates to Tajammal Hussain , Ch. Abdul Majeed, Awais Zia Butt accused and Ayyaz. Rashid P.W. As held above, at this stage there is no cogent material to connect the petitioner with charge No. 18. Therefore, we accept this petition and allow bail to the petitioner subject to his furnishing bail bonds in the sum of bail to the petitioner subject to his furnishing bail bonds in the sum of Rs. 2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of the trial Court/Special Court (Offences in Banks), Rawalpindi. 11. We may clarify at the end that the observation made in the order are purely of tentative nature and would not stand in the way of the trial Court in coming to its own independent conclusions in the light of evidence adduced by the parties. (M.A.A.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1994 (DB) Present: RASHEED AHMED RAZVI, AND SHAH NAWAZ A. AWAN, JJ. MUHAMMAD NASEEM alias NASEEMO-Applicant versus STATE-Respondent Criminal Bail Application Nos. 440,473,479, 483 and 492 of 1995. (i) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497/498~Bail~Rule of consistency-Where one accused is granted bail then the other co-accused placed in similar and identical circumstances should, as per rule of consistency, be also released on bail. [P. 1995] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Explosive Substacoes Act (XI of 1908), S. 5~Bail on rule of consistency-No role having been assigned to accused, their case rested on a better footing than that of co-accused who had been assigned a role in the F.I.R. and had already been released on bail-Accused, therefore, were entitled to bail in view of the rule of consistency and their case needed further inquiry-Necessary sanction for the prosecution, not availed by prosecution as required under the Act-Trial not likely to commence in the near future-Accused admitted to bail. [P. 1996] B, C, D & E Messrs Ghulam Moinuddin Baloch, Muhammad Aslam Bhatti, Faiz Muhammad Qureshi, Shuaib Shibli and Shoukat Alt Behlim, Advocate for Applicants. Mr. Dhani Bux Day, Advocate for the State. order Rasheed Ahmed Razvi, J.-Through this consolidated order, we intend to dispose of five bail applications as it arises from one F.I.R. and since common question of law is involved. 2. The brief facts leading to these bail applications and as alleged in the F.I.R. bearing No. 65/95 of Police Station Market Hyderabad, are that on 23.5.1995, when the concerned S.H.O. was on patrolling duty alongwith a police party in the vicinity of Examination Centres, they found 12 persons standing on the road and in their presence accused Kamran Arain and Shahid Shaikh threw crackers outside the Examination Centre of the High School which burst into great voice. It is further alleged that upon hearing such blast one A.S.I. Aftab Ahmed came out of the Examination Centre and arrested Kamran Arain, Muhammad Shahid Shaikh, Ustad Mobeen Shaikh and Muhammad Farooq Shaikh in presence of Mashirs A.S.I. Muhammad Yaseen Brohi and A.S.I. Sher Zaman. Besides these four accused, the said police party also identified other persons who were present at the spot namely (1) Naseem alias Naseemo Awan, (2) Pervaiz alias Thooto, (3) Rabat Pappu, (4) Yameen Bhora, (5) Aslam alias Allam Chundrigar, (6) Asghar Painter, (7) Bholu Muhajir, (8) Ayub Kohati Patha. It is alleged, that they made their escape good. 3. We have heard Messrs Ghulam Moinuddin Baloch, Muhammad Aslam Bhatti, Faiz Muhammad Qureshi, Shuaib Shibli and Mr. Shaukat Ali Behlim, Advocates for the applicants and Mr. Dhani Bux Dayo, Advocate for the State. We have also perused police papers. 4. It is contended by the learned counsel appearing for the applicants that the four co-accused namely Kamran Arain, Muhammad Mubeen, Muhammad Farooq and Muhammad Shahid Shaikh against whom specific allegations are made in the F.I.R. have been granted bail by this Court and that the rule of consistency demand that all the present accused/applicants be also released on bail. That no specific role has been assigned to the present applicants. That till this date the prosecution has failed to obtain report of the Explosive Expert to determine whether the socalled crackers which were exploded outside the Examination Centre contains any explosive substance. That the applicants who are all admittedly students, are in jail for more than 8 months and that their further detention will destroy their entire career. It is also argued that no recoveries were made from the present applicants. In support of all these arguments, the learned counsel have cited several reported cases. Mr. Dhani Bux Dayo, Advocate appearing for the State, in view of abovesaid factual as well as legal position has extended his no object to grant of all the five bail applications. 5. Time and again, our Honourable Supreme Court has held that where one accused is granted bail and the other co-accused, who is also placed in similar and identical circumstances, then the rule of consistency requires that such co-accused be also released on bail. For any reference see the case of Muhammad Fazal alias Bedi v. The State 1979 SCMR 9, Khadim Hussain v. The State 1983 SCMR 124, Abdul Salam v. The State 1980 SCMR 142. In a recent case of Muhammad Bashir v. The State, Honourable Supreme Court has again followed the principle of consistency and declined to interfere with the order of High Court. In the case of Muhammad Fazal alias Bodi the Honourable Supreme Court while considering the bail plea of applicant who was involved in a case under sections 302, 34, P.P.C. has held as follows:- "Without going into the merits of the case and the various rulings mentioned in the petition for leave to appeal requiring our consideration and interpretation, we think that the petitioner should be released on bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court." 6. In the present case no role has been assigned to the present applicants. If any role is assigned in the F.I.R. it is against the co-accused who were granted bail by this Court. Accused Muhammad Mubeen and Muhammad Farooq were granted bail in Criminal Bail Application No. 596 of 1995, co-accused Kamran was granted bail in Criminal Bail Application No. 649 of 1995 and Muhammad Shahid Shaikh was granted bail in Criminal Bail Application No. 663 of 1995. We are of the considered view that the present applicants are on a better footing than the other co-accused who have been granted bail earlier by this Court. 7. There is another angle to look at this case. Learned Advocate appearing for the State has admitted, after referring to the police papers that so-far the mandatory requirement of obtaining sanction as provided un section 7 of the Explosive Substances Act, 1908, has not been availed by the prosecution, and therefore, there is no likelihood that the trial will commence in the near future. In a recent case a Division Bench of this Court allowed an appeal and set aside the judgment of conviction on the ground that in the absence of sanction, the trial was held in violation of mandatory provisions of law and therefore, the entire proceedings stands vitiated. For reference see the case of Suhail Ahmed v. The State 1995 PCr.LJ 177, Rasheed Ahmed v. The State PLD 1972 SC 271 and the case of Syed Mukhtar Ahmed v. The State 1984 PCr.LJ 2181. 8. Since we are of the opinion that in view of rule of consistency the present applicants are entitled for bail, as such, there is no need of discussing the other arguments as urged by the learned advocates appearing for the applicants. It would be, sufficient to observe that the case of accused/applicants are of further enquiry. Accordingly bail is granted to all the five applicants/accused who shall be released on bail upon furnishing one surety of Rs. 50,000 each and P.R. bond in the like amount to the satisfaction of the trial Court. (M.A.A.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 1997 Present: abdul hameed dogar, J. DODO and another-Applicants versus STATE-Respondent Criminal Bail Application No. 554 of 1995, decided on 3rd December, 1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)--Penal Code (LXV of 1860), S. 324/148/149-Bail--Grant of-- Prayer for-Both the accused allegedly had fired one shot each and one fire-arm injury according to medical certificate had been received by the injured witness and it was yet to be determined as to who, out of the two, was responsible for the said injury, benefit of which definitely was to go to the accused-Presence of incised wound on the person of the injured witness and non-availability of injuries with hard and blunt weapons hereon had also made the prosecution case doubtful-Case against cused, thus, need further inquiry as envisaged in S. 497(2), Cr.P.C.~ Accused were allowed bail accordingly. [P. 1998] A Mr. Yasin Khan Babar, Advocate for Applicants. Mr. Abdul Sattar Chohan, for A.A.G. for the State. Date of hearing: 3.12.1995. order Complainant Wali Muhammad lodged F.I.R. as Crime No. 6/95 at Police Station Mian-jo-Goth on 19.8.1995 disclosing that on the above date he alongwith his cousin Zulfikar Ali, Amanullah and Abdul Ghani were going to village Mirpur Buriro with their domestic work and at 9.30 a.m. when they arrived near Ghana Bridge there they saw applicants Dodo, Sadiq armed with guns, accused Dhani Bux, Suhbat, Rahim Bux and Ali Gohar armed with Lathis. Accused Ali Gohar declared that they would commit the murder of Zulfikar Ali. He instigated the others whereupon applicants Dodo and Sadiq allegedly fired at Zulfikar Ali which hit on his right leg who fell down, the rest of the accused armed with Lathis caused Lathis blows which hit him on his head and other parts of the body. Applicants were arrested and they preferred bail application which was rejected on 10.10.1995 by the learned Sessions Judge, Shikarpur. It is contended by Mr. Yasin Khan Babar for the applicants that there is contradiction in ocular and medical evidence. According to the case of prosecution applicants are said to be armed with guns and fired at injured Zulfiqar Ali which hit him on his left leg. The rest of the accused are alleged to have caused Lathi blows on the head and other parts of injured Zulfiqar AIL Applicant's counsel argued that medical certificate reveals that there are only two injuries on the body of the injured. Injuries as per medical certificate are mentioned as under:- (1) Crushed type of L.T.P. wound muscle bone deep present near left knee-joint. (2) An incised wound measuring 5 c.m. x 05 x scalp deep (bone was exposed) present near right partial region of head." According to medical certificate injury No. 1 is said to be the result of fire­ arm and another injury an incised wound is with some sharp cutting weapon. Both the applicants are said to have fired one shot each, which according to F.I.R. were received by injured at his left leg. Since there is noticed only one injury with fire-arm therefore, it is yet to be ascertained as to who out of these two applicants is responsible for this injury. Learned counsel contends that prosecution has not explained as how injured sustained injury No. 2 because none of the persons nominated in the F.I.R. is said to have been armed with sharp cutting weapon. He further submits that the ocular evidence that some of the accused caused Lathi injuries to the injured is also belied by the medical evidence as there is not even a single injury with hard and blunt substance found case falls under section 337- F(vi) Ghayr Jaifah which is punishable with seven years and does not fall within prohibitory clause of section 497, Cr.P.C. therefore, the case of prosecution requires further inquiry. In support he cited 1980 SCMR 784, 1986 PCr.LJ 924 and unreported authority of this Court in Criminal Bail Application No. 858 of 1995. Mr. Abdul Sattar Chohan for the State concedes to the arguments of applicant's counsel and submits that this is a case of further enquiry and has therefore, no objection to the grant of bail to the applicants. The applicants according to F.I.R. are said to be armed with guns and have fired one shot each at injured Zulfiqar All but medical certificate shows that there is only one injury with fire-arm. This contradictions leaves room for consideration as to who out of two is responsible for this particular injury, the incised wound and non-availability of injuries with hard and blunt substance further makes the case of prosecution to be of doubtful nature and it becomes of further enquiry as contemplated under section 497(2), Cr.P.C. The applicants are therefore, allowed concession of bail subject to their furnishing one surety in the sum of Rs. 50,000 each and P.R. bond in the like amount to the satisfaction of the trial Court. (M A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 1999 Present: abdul hameed dogar, J. ABDUL RASOOL-Appellant versus STATE-Respondent Criminal Appeal No. 79 of 1987, heard on 7th December, 1995. Prevention of Corruption Act (II of 1947)-- —S. 2(5)--Penal Code (XLV of 1860), S. 161-Appraisal of evidence-Neither any conversation between the complainant and the accused before the tainted currency notes changed hands was heard, nor the actual passing of the same was witnessed by the raiding Magistrate and the Circle Officer, Anti-Corruption Establishment-Conviction of accused on the statement of the complainant alone, in the circumstances, was quite unsafe to base conviction on mere words of complainant-Accused was acquitted accordingly. [P. 2001] A & B Mr. Sher Muhammad Baloch, Advocate for Appellant. Mr. Khadim Hussain, Advocate for the State. Date of hearing: 7th December, 1995. judgment This criminal appeal arises from the judgment of the learned Special Judge, Anti-Corruption at Sukkur, whereby he, on 25-8-1987, convicted the appellant and sentenced him on the first count to suffer R.I. for six months and on the second count to suffer R.I. for one year and to pay a fine of Rs. 500 or in default to further undergo R.I for six months and both sentences of imprisonment to run concurrently. The facts of the case are that the appellant was a police constable and, according to the prosecution, was posted at Sui Gas Check Post in District Khairpur in May, 1985 and on 10-5-1985, the appellant alongwith Constable Daud Ali went to the Autaq of complainant Sultan Ahmed and took him away to Sui Gas Bus Stand on the pretext that Tali tree lying at the saw mill of Muhammad Ramzan was stolen property. The said Sultan Ahmed was confined wrongfully in a room. When his relative Muhammad Waris approached the appellant, he demanded an illegal gratification of Rs. 500 for the release of Sultan Ahmed. Ultimately the appellant agreed on payment of Rs. 150, out of which Rs. 100 was paid to the appellant and the balance was promised to be paid within couple of days. On 13-5-1985, Constable Daud Ali demanded the balance amount from Muhammad Waris, complainant Sultan Ahmed- reported the matter to Anti-Corruption Establishment, Khairpur, where his F.I.R. was recorded by Circle Officer Noor Muhammad Solangi. After registration of crime, the Circle Officer arranged a trap against the appellant and obtained the services of Mukhtiarkar and F.C.M., Kotdiji and making Muhammad Waris as Mashir. According to the prosecution case, tainted money of Rs. 50 was forwarded to the appellant by the complainant at the time of trap which was recorded in presence of the Magistrate and Mashir from the right side pocket of shirt of the appellant, in addition to his black glasses and identity card issued by Superintendent of Police, Sanghar. On completion of investigation and sanction for prosecution, the appellant was brought to trial. In support of the case, the prosecution examined Sultan Ahmed as P.W. 1, Muhammad Waris as P.W. 2, Arbab Ali Dinnari as P.W. 3 and Noor Muhammad Solangi as P.W. 4. The appellant in his statement under section 342, Cr. P.C., recorded by trial Court, denied the allegations and complained that this case is outcome of enmity and that the complainant and Mashir Muhammad Waris are related to each other and no independent person from the place of recovery has been cited as witness against him. He examined one Ghulam Muhammad Shah, a witness, in his defence. The trial Court framed two points for determination, one relating to wrongful confinement of Sultan Ahmed in appellant's quarter and the other of accepting illegal gratification of Rs. 100 on 10-5-1985 and Rs. 50 on 14-5- 1995 from Muhammad Waris and Sultan Ahmed. The trial Court decided the points against the appellant and convicted him on both counts as above. I have heard the learned counsel Mr. Sher Muhammad Baloch for the appellant and Mr. Khadim Hussain for the State. The learned counsel for the appellant submitted that the prosecution has not been able to prove beyond reasonable doubt that the tainted currency notes were received by the appellant as illegal gratification. None of the witnesses has deposed about hearing any conversation between the appellant and the complainant before the tainted currency notes changed hands. The counsel argued that the notes do not show any specific marks. According to the complainant, the tainted money was paid to the appellant at the hotel of Muhammad Sharif, where the trap was arranged but neither Muhammad Sharif nor anyone else from there has been cited as witness to prove this. Mashir Muhammad Waris has stated in his deposition that it was Muhammad Waryam who informed the trap party about the passing of the tainted money to the appellant and he also admitted that his signature on iheMashirnama was obtained at Khairpur. Mr. Sher Muhammad Baloch argued that Arbab Ali Dinnari, Mukhtiarkar and F.C.M., Kotdiji, had deposed at trial that at 6.00 p.m. Mashir Muhammad Waris informed them that the appellant was present at the hotel of Muhammad Hanif, situated at the Bus Stand. He then sent complainant and the Mashir to pass on the tainted money to the appellant and after five minutes Mashir Muhammad Waris came and told them that the appellant after accepting the tainted money has kept it in his right side pocket of his shirt He and Circle Officer went to the hotel of Muhammad Hanif where complainant was already sitting and after introducing themselves, he secured tainted money of Rs. 50 from his personal search. From this, according to the learned counsel, it appears that the actual passing of tainted money has neither been witnessed by the raiding Magistrate nor by the Circle Officer and no conversation of delivering tainted money to the'appellant has been heard by the trap party, therefore, the conviction is not sustainable in law. He referred 1988 PCr. LJ 2273 and 2575 and 1994 PCr. LJ 675 and 2356. Sr. Khadim Hussain the learned State Counsel conceded to the above contention of the learned counsel for the appellant and raised no objection to the setting aside of the appellant's conviction. I have considered the submissions made by the learned counsel for the appellant with due care and caution. From the perusal of statements of complainant Sultan Ahmed, Mashir Muhammad Waris and Arbab Ali Dinnari, Mukhtiarkar and F.C.M., Kotdiji, recorded at trial, there appears a controversy as to the hotel, where the tainted money is said to have been forwarded to the appellant, belongs to Muhammad Sharif or Muhammad Hanif. None of these two has been examined to testify this contradiction. Who either of the two, i.e. Muhammad Waris or Muhammad Waryam informed the trap party about the passing of tainted money to the appellant, is shrouded in mystery. The evidence of Mashir Muhammad Waris that his signatures were obtained on Mashirnama at Khairpur, makes the case of prosecution more doubtful. It is also evident that the Magistrate and the Inspector had not heard the conversation between the appellant and the complainant before the tainted money notes, were handed over to the appellant by the complainant. Therefore, no implicit reliance could be placed on the words of the complainant alone regarding the demand and acceptance of illegal gratification by the appellant as bribe. From the deposition of Mukhtiarkar and F.C.M., Kotdiji, it is apparent that neither he nor the Inspector had actually seen the passing of tainted money to the appellant. He has clearly deposed that Mashir Muhammad Waris came to them and told them that the tainted money has been handed over to the appellant, by complainant Sultan Ahmed, who is sitting at the hotel of Muhammad Hanif. In a case where neither any conversation between the complainant and the appellant before the tainted money notes changed hands is heard nor the actual passing of the same is witnessed by the raiding Magistrate and the Circle Officer, Anti-Corruption Establishment, it is quite unsafe to base conviction on the mere words of the complainant. In the case of Muhammad Ejaz v. The State 1986 PCr. LJ 2575 and Sultan Ahmed v. The State 1994 PCr. LJ 2356, the Lahore High Court had allowed the appeals exactly under the similar circumstances of the present case. Therefore, pursuant to the above discussion the present criminal appeal is hereby allowed and the impugned judgment, is set aside. The appellant is on bail. His bail bonds stand discharged accordingly. (M.A.A.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2002 (DB) Present: jawaid nawaz khan gandapur AND sardar muhammad raza, JJ. STATE through Advocate-General N.W.F.P., Peshawar-Appellant versus HAZRAT ZAMAN and 3 others-Respondents Criminal Appeal No. 20 of 1995, decided on 7th November, 1995. (i) Criminal trial- —Evidence-Burden of proof-Prosecution is duty bound to prove its case against the accused beyond reasonable doubt and this duty does not change or vary even if no defence plea is taken by the accused. [P. 2007] F (ii) Pakistan Penal Code, 1860 (XLV of 1860)- —Ss. 302/109/34-Criminal Procedure Code (V of 1898), S. 417(l)~Appeal against acquittal-Complainant had made improvements in his statement at the trial and was not a reliable witness-Related eye-witness was not found to have seen the occurrence-Independent eye-witnesses had not supported the prosecution version-Empties secured from the spot and the weapons recovered from the accuse' v.are not sent to the Fire-Arms Expert to find out If the same were fired by the said weapons-Occurrence had taken place at a different site than shown by the prosecution- Prosecution, thus, having failed to prove its case beyond doubt, accused had been rightly acquitted by the Trial Court-Appeal against acquittal of accused was dismissed in limine accordingly. [Pp. 2005, 2006 & 2007] A, B, C, D, E, & G. Mr. Ejaz Ahmad Khan, Asstt. A.G. for the State. order Jawaid Nawaz Khan Gandapur, J.-Two real brothers, respondents Nos. 1 and 2, namely, Hazrat Zaman and Ali Zaman have been charged for having killed Hukam Khan son of Mir Kabat Khan resident of Mohallah Sheikhanwala, Tehsil and District Tank, on 5-11-1989 at 8-15-a.m. by firing at him (deceased) with .12 bore shot-gun (single-barrel) and .12 bore pistol. Respondent No. 3 Guldar Ali, father of respondents Nos. 1 and 2, is charged for having hatched a conspiracy for the murder of Hukam Khan whereas respondent No. 4 Gul Abbas son of Mirza Ali Khan has been charged to have raised a Lalkara and at the relevant time had directed respondents Nos. 1 and 2 to kill the deceased. It may be mentioned that respondent No. 4 is the nephew of respondent No. 3 and a first cousin of respondents Nos. 1 and 2. 2. After completing the investigation a challan was submitted against the respondents acquitted accused. They were summoned and charge-sheeted by the Sessions Judge, on 8-6-1991 under section 302/109/34, P.P.C. All of them denied the charge levelled against them, professed innocence and claimed trial. In order to prove its case the prosecution examined as many as 12 witnesses. One of the witnesses F.C. Muhammad Ashraf (P.W. 3) was examined twice i.e. as P.W. 7. 3. Stated briefly, the prosecution case, as disclosed at the trial, is that on the day of occurrence at about 8 a.m. complainant Abdul Qayum (P.W. 10) was proceeding to his school. When he reached near the shop of ^ one Qasim Khan, his uncle Gul Shahzad (P.W. 11), met him and accompanied him. It was at that time that the deceased (the father of the complainant) crossed them as he was going towards his home. It has been alleged by the prosecution that the deceased, at the relevant time, was being . followed by respondents Nos. 1, 2 and 4 when all a sudden respondent No. 4 (Gul Abbas) raised a Lalkara and shouted at respondents Nos. 1 and 2 to fire upon the deceased. Respondent No. 1, Hazrat Zaman, armed with a .12 bore shot-gun (S.B.) and Respondent No. 2, Ali Zaman, armed with a .12 bore pistol fired, one shot each, at the deceased. The deceased was hit and fell to the ground. All the three respondents (Nos. 1, 2 and 4), mentioned above, then decamped from the scene of occurrence. 4. The complainant (P.W. 10) and Gul Shahzad (PW. 11) attended the deceased (then injured) and put him in a Datsun, which was readily available in the Bazar, and rushed him to the hospital. However, when the reached the hospital, the injured Hukam Khan, succumbed to his injuries and died. omplainant Abdul Qayum (P.W. 10) accordingly reported the matter to Sub-Inspector/S.H.O Mohabat Khan (P.W. 12) who reduced his report into writing in the form ofMurasila Exh. P.A./1 and sent the same to the Police Station, Tank for the registration of the case. On the basis of the Murasila, F.I.R. No. 511 was registered under section 302/109/34, P.P.C. on the same day, P.W. 12 then prepared the inquest report and the injury sheet and thereafter proceeded to arrest the accused. 5. According to the prosecution case the occurrence was witnessed by one F.C. Behram Khan (not cited as a P.W., or produced as such) who, in his first instance, had informed I.H.C. No. 198 Iqbal Hussain (P.W. 6) about the occurrence in question. The said P.W. 6 was present in the police station when he heard the report of fire shots as well as the hue and cry raised by the people and was thus attracted to the spot. F.C. Behram Khan informed P.W. 6 that somebody had fired at Hukam Khan (deceased) who was injured and was taken to the hospital. Since the accused, who had allegedly fired on Hukam Khan, were running away from the scene of occurrence, therefore, P.W. 6 started chasing them alongwith F.C. Behram Khan (not produced). According to him it was F.C. Behram Khan who fired three shots in the air so as to scare the accused. When the accused as well as F.C. Behram Khan and P.W. 6, reached the lands of one Alif Shah, A.S.I. Akbar Shah (not produced) and Sub-Inspector Allah Bakhsh (P.W. 5) reached there alongwith the police personnel. Sub-Inspector/S.H.O. Mohabat Khan (P.W. 12) also, in the meantime, arrived at that place. The police party then encircled the accused and thus succeeded in arresting them. Respondent No. 1 Hazrat Zaman was armed with .12 bore shot gun (S.B.) whereas respondent No. 2 Ali Zaman was armed with .12 bore pistol. However, respondent No. 4 (Gul Abbas) had no weapon on his person. After having arrested the three accused, mentioned above, the police party went to the scene of occurrence. Two empties (Exh. P.I) and one pellet (Exh. P. 2) where recovered from the scene of occurrence by the Investigating Officer (P.W. .12) vide recovery memo. Exh. P.D. Similarly vide recoveiy memo. Exh. P.R./1, the Investigating Officer took into possession the blood-stained earth from the scene of occurrence. The site plan, Exh. P.B was also prepared by the Investigating Officer (P.W. 12) at the instance of complainant Abdul Qayum (P.W. 10). It may be mentioned that respondents Nos. 1, 2 and 4 were arrested on 5-11-1989 whereas respondent No. 3 (father of respondents Nos. 1 and 2 and the uncle of respondent No. 4) was arrested on 6-11-1989. 6. It was on 6-11-1989 that the blood-stained shirt and Shalwar Exh. P.E.,) of deceased Hukam Khan was sent to the Forensic Science Laboratory, Peshawar for chemical analysis. The report of the export, in this behalf, is in the positive. 7. The autopsy, on the dead body of the deceased, was conducted by Dr. Misal Khan (P.W. 4) who prepared post-mortem report (Exh. P.M.) alongwith pictorial. According to him the death was caused because of the injuries to the vital organs like right lung, liver, internal and external bleeding, leading to shock and subsequently death. The doctor opined that the injuries, which caused the death of the deceased, were inflicted by fire­ arm. 8. After completing the investigating the challan was submitted in the Sessions Court, through the Assistant Commissioner, Tank for trial. 9. The Sessions Judge after framing the charge, recording the prosecution evidence, consisting of as many as 12 P.W.s. and recording the statements of accused under section 342, Cr. P.C. as well as under section 340(2), Cr. P.C. came to the following conclusion :— "The crux of my foregoing discussion is that the prosecution's case is full of doubts, lacunas, loop-holes, conjectures and surmises and the benefit of doubt must go to the accused. Accordingly by extending the benefit of doubt to the accused, I acquit them of the charges levelled against them. They being on bail, their bail bonds shall stand discharged. Case property be kept intact till the expiry of period of appeal/revision." 10. The complainant, Abdul Qayum, it may be stated here, has not filed any appeal under section 417(2-A), Cr. P.C., as amended, to challenge the legality/validity of the judgment/order, dated 18-10-1994 of the Sessions Judge vide which he has acquitted all the accused-respondents. On the other hand, the State has filed the appeal in hand under section 417, Cr. P.C. and has challenged the legality and vires of the judgment/order of the Sessions Judge on the grounds that the same was contrary to law, facts and material on record and, therefore, not sustainable in the eyes of law. 11. We have heard Mr. Ejaz Ahmad Khan, Assistant Advocate- General, D.I. Khan for the State and have had the advantage of going through the record of the case with some degree of care. 12. It may be stated at the very outset that the fate of the present case hinges mainly on the ocular testimony of complainant abdul Qayum (P.W. 10), son of the deceased, and Gul Shahzad (P.W. 11) brother of the deceased. Since both of them are closely related to the deceased, therefore, , their testimony has to be subjected to close examination and critical analysis. 13. The complainant, Abdul Qayum (P.W. 10), to our mind, is not a truthful witness because while lodging the report at the hospital he had stated before the Investigating Officer that one Gul Zaman alias Bahaduri son of respondent No. 3 and the brother of respondents Nos. 1 and 2, used to work with Gul Shahzad (P.W. 11) in the shop of Wali Muhammad goldsmith 3/4 years back, at Tank. That Gul Zaman, being a drug addict, had taken some poisonous material as a result of which he died. That the accused, accordingly, suspected that it was Gul Shahzad (P.W. 11) who had poisoned their son/brother to death. In other words, the complainant had stated in crystal clear words, before the Investigating Officer, that the accused party suspected Gul Shahzad (P.W. 11) for having killed their son/brother (Gul Zaman alias Bahaduri). The report of the complainant (P.W. 10) was recorded and duly reduced into writing in the form of Murasila (Exh. PA./1) on the basis of which, the F.I.R. (Exh. P.A.) was registered in Police Station, Tank, Tehsil Tank, District Tank under section 302/149, P.P.C. 14. It may, however, be noted that when the complainant was examined on oath in the Court as P.W. 10, he gave an absolutely different version in respect of the motive for the commission of the offence. He stated that the accused party suspected his father (Hukam Khan deceased) to have poisoned Gul Zaman alias Bahaduri. It appears to us that the complainant (Abdul Qayum) has made improvements in his Court statement and thus no reliance can be placed on his testimony. 14-A. We have also noted that at the time of occurrence the complainant, Abdul Qayum (P.W. 10) was about 14/15 years of age whereas his uncle, Gul Shahzad (P.W. 11), was an adult. If Gul Shahzad (P.W. 11) was present at the time of occurrence, as has been alleged, and had attended the deceased when he was injured and had removed him to the hospital and thereafter gone to the scene of occurrence with the Investigating Officer then in that case what prompted him not to lodge the report against the respondents with the police at the hospital in the first instance instead of the complainant who was admittedly a minor boy at that time. The only inference, in our opinion, which can be drawn is that he (P.W. 11) was not at all present on the scene of occurrence and that he had not seen the occurrence. 15. Two disinterested/independent witnesses, Abdul Rauf (P.W. 8) and Muhammad Ayub (P.W. 9), were produced by the prosecution in an effort to establish the prosecution case. However, it may be noted, that when these alleged eye-witnesses were examined as P.W. 8 and P.W. 9 respectively, they expressed their ignorance, about the involvement of the respondents with the commission of the offence with which they are charged. 16. Last but not the least, I.H.C. No. 198 Iqbal Hussain (P.W. 6) deposed before the trial Court that at the time of the occurrence he was present in the police station, at about 8 a.m., on the fateful day, when he heard the report of the fire shots as well as the hue and cry raised by the people and therefore, rushed towards the scene of occurrence when Constable Behram Khan (not produced as P.W.), who was on duty at that time, informed him that somebody had fired at Hukam Khan and that the accused were trying to decamp from the scene of occurrence. He further stated that on the basis of the said information he, alongwith the said F.C. Behram Khan, chased the accused who were running towards Street No. 3. They therefore, followed them. According to him it was F.C. Beharam Khan who had also opened serial firing and had fired three shots, that when they had reached the lands of one Alif Shah, while chasing the accused, A.S.I. Akbar Shah and A.S.I. Allah Bakhsh (P.W. 5), alongwith police party, arrived there. He further stated that immediately thereafter Sub-Inspector Mohabat Khan (P.W. 12) also reached the spot. Respondents Nos. 1, 2 and 4 were accordingly encircled by the police party and were arrested. That a .12 bore shot-gun (S.B.) was recovered from the possession of respondent No. 1 (Hazrat Zaman) whereas a .12 bore pistol was recovered from the possession of respondent No. 2 (Ali Zaman). Respondent No. 4 (Gul Abbas) was however, found empty-handed. We are at a loss as to why F.C. Behram, who, in the circumstances of the present case, was a very important/material witnessed, as he was allegedly present on duty at the scene of occurrence, was not produced to support the prosecution version. It is really strange that he was not even cited as a prosecution story, especially with regard to the chasing/arrest of respondents Nos. 1, 2 and 4 and the recovery of the weapons from their possession. 17. There is yet another aspect of the case and that is that the Investigating Officer had not sent the empties, allegedly recovered from the scene of occurrence, and the weapons used which were recovered from respondents Nos. 1 and 2, to the Arms Expert so as to determine as to whether or not the shots were in fact fired from the .12 bore shot­ gun, .12 bore pistol allegedly recovered from the possession of respondents Nos. 1 and 2. This act of omission or commission on the part of the Investiga­ ting Officer (P.W. 12) has further damaged the prosecution case. No explanation, whatsoever, has been furnished by the prosecution in this respect. 18. A close scrutiny of the prosecution evidence, especially that the A.S.I. Allah Bakhsh (P.W. 5) and the Sub-Inspector Mohabat Khan (P.W. 12) has, to our mind, created uncertainty with regard to the place where the occurrence had taken place. A.S.I. Allah Bakhsh (P.W. 5) when examined stated before the trial Court that he had received a telephonic message from ,. the Police Station, Tank to the following effect :-- "A murder has been committed near the Chowki and that the accused had decamped from the spot and therefore, we were directed to arrange a Nakabandi." 19. This contention of P.W. 5 is fully corroborated by the evidence of Sub-Inspector Mohabat Khan (P.W. 12) who, while in the witness-box, deposed as under :-- "I got the information that a murder has been committed near the police post and the accused have decamped and the injured has been taken to the hospital." 20. From the above deposition of the two P.Ws. it is clear that the occurrence took place near the Police Post (Chowki) City, Tank. This place is decidedly other than the place of occurrence as has been shown in the site plan (Exh. P.B.), prepared by Investigating Officer (P.W. 12) at the instance of complainant (P.W. 10). This fact, too, has created some doubt in the credibility of the prosecution story. Needless to mention that in criminal case the burden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused, it was held in Hakim All and others v. The State reported as 1971 SCMR 432 that, in criminal trial, the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence. 22. Accordingly we are of the considered view that the prosecution has miserably failed to establish its case against the respondents-accused beyond reasonable doubt and that the respondents were rightly acquitted by the trial Court. The State appeal does not merit consideration and is dismissed in limine. (M.A.A.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2008 (DB) Present: MEHBOOB ALi khan and mrs. khalida rachid, JJ. AFZAL KHAN-Appellant versus STATE-Respondent Criminal Appeal No. 42 of 1993, decided on 7th February, 1996. Pakistan Penal Code, 1860 (XLV of I860)-- —Ss. 302 & 307-Criminal Procedure Code (V of 1898), S. 428-Accused on evidence was found suffering from mental disorder and being of unsound mind and, at the time of trial he was incapable of giving instructions to his lawyer and also unable to defend himself-Trial Court being unaware of the lunacy of the accused did not try him as a lunatic person under Chap. XXXIV, Cr. P.C.-Convictions and sentences of accused were set aside in circumstances and he was remanded to Mental Hospital for periodical examination and upon recovery was directed to be tried afresh for the offences charged with according to law. [Pp. 2009 & 2010 [ A & B Mr. M. Zahoor-ul-Haq, Advocate for Appellant. Mr. Abdur Rauf Gandapur, Advocate for the State. Sahibzada Akhtar Munir, Advocate for the Complainant. Date of hearing: 13th December, 1995. judgment Mrs. Khalida Rachid, J.--Afzal Khan son of Misri Khan aged 25/26 years resident of village Vilyamina, Tehsil Hangu District Kohat, appellant herein, has been found guilty of the murder of one Umar Javed son of Noor Zadin aged 20/22 years by the learned Additional Sessions Judge, Kohat Camp Hangu, and has been sentenced to death under section 302, P.P.C. He has also been convicted under section 307, P.P.C. for ineffectively firing at the complainant and sentenced to five years' R.I. and a fine of Rs. 50,000, in default thereof to undergo R.I. for one year. On realisation of the fine, Rs. 20,000 was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P.C., in default of which he shall further suffer one year's R.I. 2. The prosecution case, briefly stated, is that on 4-12-1986 at about 16-00 hours Umar Javed, deceased, alongwith his grandfather Sirajuddin, was present in his shop, appellant Afzal Khan duly armed with Topak arrived there and fired two shots at them hitting Umar Javed fatally thus leaving him dead on the spot while complainant escaped unhurt. Motive for the offence is stated to be a verbal altercation between the deceased and the appellant. 3. Murder Reference No. 3 of 1993 and Criminal Appeal No. 42 of 1993 against the judgment of the trial Court, dated 7-3-1993 by the State and the appellant through his counsel, Malik Fakhre Azam, have been filed, respectively. On 15-6-1994, before the arguments could be heard on merits, Barrister M. Zahural Haq, Advocate, whose services were engaged on behalf of the appellant, subsequently filed Criminal Miscellaneous No. 68 of 1994 under section 428, Cr. P.C. read with Chapter 34, Cr. P.C. raising the plea of insanity of the appellant. He, claiming the appellant to be an old patient of Schizophrenia, requested the Court to get the appellant examined by a Medical Board so as to ascertain the previous and present condition of the appellant The constitution of the Medical Board was, therefore, ordered by this Court on 2-10-1994 which had accordingly examined the appellant on

23-11-1994. The Board held that the appellant was suffering from major "psychiatric illness" and needed regular treatment. Report of the Board did not disclose whether the appellant could understand the proceedings pending against him and that he was mentally fit to instruct his Advocate to pursue his case, therefore, the reconstitution of the Medical Board was ordered by this Court. The appellant was accordingly examined by the fresh Board as well as by the Psychiatrist, Dr. Muhammad Tariq, a Medical Officer (Psychiatrist) Government Mental Hospital , Peshawar , who was also examined in this Court on 20-11-1995. He stated that he had examined the ppellant on August 2nd, 8th and 16th of 1995 and observed that the appellant is suffering from paranoid and bizarre delusions and is patient of chronic Schizophrenia. He has also observed from the old record of the appellant that he has been under psychiatric treatment in the Mental Hospital, Peshawar since 1991 and that during the course of the present trial he was brought to Hospital for mental treatment and used to be sent back to Kohat for the hearing of the case. 4. It is surprising to note that appellant was under medical treatment for mental disorder since 1991 and it was never brought to the notice of the Court during the course of trial till this very late stage of the case. Dr. Muhammad Tariq has categorically diagnosed that the appellant had blockening phenomena. He appeared withdrawn, scared, pre-occupied ' and gesturing. He opined that the appellant is suffering from chronic mental disorder and is unfit to plead, unable to understand the proceedings of the Court and cannot defend himself. Even otherwise from the circumstances of the case we observe that the motive presented by the prosecution does not seem to be strong ground for committing murder by a person of sane mind. We are satisfied that the appellant has been suffering from mental disorder and he is still of unsound mind, therefore, at the time of trial he was incapable of giving instructions to his lawyer and was also unable to defend himself. This fact could not have been considered by the trial Court since it was not brought to the notice of the Court and thus he was not tried as a lunatic person under Chapter 34 of the Criminal Procedure Code. 5. In view of above circumstances we, by setting aside the conviction vitiate the trial and direct that the appellant shall be remanded to Mental Hospital in safe custody where he shall be examined periodically. Upon his recovery he shall be tried for the offences charged with according to law. Hence Murder Reference and Criminal Appeal disposed of accordingly. (M.A.A.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2010 Present: jawaid nawaz khan gandapur, J. MUHAMMAD YAQOOB-Petitioner versus AKBAR ALI and others—Respondents Criminal Miscellaneous Bail Cancellation Application No. 793 of 1995, decided on 6th February, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(5)~Penal Code (XLV of 1860), S. 324/34-Cancellation of bail- Reasons given by Sessions Court for releasing the accused on bail being cogent and neither arbitrary nor perverse, needed no interference—Case of accused was one of further inquiry and they had been rightly allowed bail-Petition for cancellation of bail being misconceived was accordingly rejected. [P. 2011] A & C (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(5)-Cancellation of bail-Bail granted by a competent Court cannot be recalled in the absence of solid reasons showing that the same was either obtained through misrepresentation or suppression of facts or that the concession of bail was being misused to hamper or obstruct the course of fair investigation. [P. 2011] B Mr. Mazullah Barkandi, Advocate for Petitioner. Mr. Fateh Mahmood, Advocate for the State. Mr. Ataullah Khan, Advocate for the Complainant. Date of hearing: 6.2.1996. order Muhammad Yaqoob, petitioner/complainant, has filed the present application for the cancellation of bail granted to the respondents by the Izafi Zila Qazi, Swat, vide his order, dated 16-8-1995. 2. Briefly stated, the facts of the case are that complainant Muhammad Yaqoob lodged a report vide F.I.R. No. 64 in Police Station Saidu Sharif on 16-5-1995 wherein it has been stated that on 16-5-1995 he alongwith his uncle (Gul Hilal) and his brother (Hayatullah) went to Baligram to look after their land, that on seeing them the respondents, who were already waiting for them there, started indiscriminate firing and resultantly Mian Gul Hilal (uncle) and Hayatullah (brother) were hit and seriously injured. 3. The complainant accordingly charged all the respondents for having effectively fired at them. The motive for the alleged occurrence was stated to be an old dispute over some other landed property. After the registration of the case (vide F.I.R. No. 64, dated 16-5-1995) the respondents were arrested. 4. The respondents in the first instance knocked at the door of Illaqa Qazi, Swat for the redress of their grievance and prayed that they be released on bail. Their request was however turned down vide order, dated 14-6-1995. 5. Aggrieved, the respondents approached the Izafi Zilla Qazi ^Additional Sessions Judge) and prayed that they be granted bail. Their prayer was accepted and the respondents were released on bail. Hence this petition for cancellation of the same. 6. Mr. Mazullah Barkandi, Advocate for the petitioner, Mr. Attaullah Khan, Advocate for respondents Nos. 1 to 4 and Mr. Fateh Muhammad Khan, Advocate for the State (respondent No. 5) present and eard . I have also gone through the record of the case with some degree of care. 7. It must be stated at the very outset that the reasons given by the Additional Sessions Judge for releasing the respondents on bail are quite cogent and are neither arbitrary nor perverse and thus need no interference by this Court. It is now settled principle of law that if the bail is allowed then it could not be recalled in the absence of solid reason showing that the same was either obtained through misrepresentation or suppression of facts or that the concession of bail was being misused to hamper/obstruct the course of fair investigation. 5. Keeping in view that the consideration for grant of bail and those for cancellation of bail are quite different and that once that bail is granted by the competent Court, this Court will interfere only in exceptional cases. I have considered/appreciated the arguments advanced by the learned counsels for the parties and find that, without dilating upon the merits of the case at this stage, the case of the respondents is that of further enquiry and that they were rightly released on bail by the Additional Sessions Judge. This petition for cancellation of bail is, therefore, misconceived and is accordingly rejected. 9. The prosecuting agency is however, directed to submit the complete challan within one month from the receipt of record positively. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 2012 Present: jawaid nawaz khan gandapur, J. MISAL KHAN-Appellant versus TAWAB GUL and others-Respondents Criminal Miscellaneous Bail Application No. 198 of 1996, decided on 28th March, 1996. Criminal Procedure Code, 1898, (V of 1898)-- —S. 497(2)-Penal Code (XLV of 1860), S. 302/34"Bail--Aft&/--Plea of—Two certificates, one issued by the Colonel and the other by a Major of the Frontier Corps, showed that at the time of occurrence accused was present on duty at the Headquarters of the Frontier Corps-Case of accused, thus, fell within the scope of S. 497(2), Cr. P.C. and required further inquiry-Accused was admitted to bail accordingly. [P. 2015] A Mr. Munir Khan, Advocate for Appellant. Mr. Sahibzada Khan, A.A.-G. for the State. Mr. Bashir Ahmed Khan, Advocate for the Complainant, Date of hearing: 28th March, 1996. order The petitioner (Misal Khan), alongwith others stands charged foz having killed Nawab Khan vide F.I.R. No. 399 lodged in Police Station, Umarzai, District Charsadda, on 23-8-1995 at 16-50 hours, registered under Section 302/34, P.P.C. It may be mentioned that originally the F.I.R. was registered under section 324/34, P.P.C. by Nawab Gul deceased, then injured. Since Nawab Gul succumbed to his injuries, therefore, the section of law in the F.I.R. was changed from 324 P.P.C. to 302, P.P.C. 2. After his arrest the petitioner moved the Judge, Special Court , Charsadda and prayed for bail but failed. Hence this petition. 3. Mr. Munir Khan, Advocate for the petitioner, Mr. Sahibzada Khan Additional Advocate-General for the State and Mr. Bashir Ahmad, Khan Advocate for the complainant party present and heard. I have gone hrough the record of the case carefully. 4. The learned counsel for the petitioner did not argue the bail of petition on merit and raised only one issue. According to him the petitioner was, at the time of the occurrence, on duty at Peshawar at Qila Balahisar, where Headquarters of the Frontier Corps is situated. He submitted that in this respect the following two certificates, one issued by Colonel Arshad Zaman and the other issued by Major Muhammad Akram Khan on 6-2-1996 and 29-2-1996 respectively confirmed that the petitioner (Number 6020 Naik Misal Khan) was neither granted leave nor outpass on 23-8-1995 and that he had remained present on duty at the Frontier Corps, Headquarter, situated in Qila Balahisar, Peshawar, from morning till evening with the necessary implication that he could not be present at the place of occurrence i.e., within the jurisdiction of Police Station Umarzai, District Charsadda. For the sake of convenience both the certificate are reproduced as under :-- (1) CERTIFICATE Certified that Number 6020 Naik Misal Khan was not granted outpass or leave on 23rd August, 1995 and he remained present on duty at Headquarters Frontier Corps. N.W.F.P. Qila Balahisar, Peshawar on the same day. Station : Peshawar. Dated: 6th February, 1996. (Sd.) Colonel For Inspector-General Frontier Corps (Arshad Zaman) (2) CERTIFICATE Certified that Number 6020 Naik Misal Khan was not granted outpass or leave on 23rd August, 1995 and he remained present on duty at Headquarters Frontier Corps. N.W.F.P. Qila Balahisar, Peshawar from morning till evening on 23rd August, 1995. Station: Peshawar. Dated : 29th February, 1996. (Sd.) Major For Inspector-General Frontier Corps (Muhammad Akram Khan) 5. The petitioner's counsel, therefore, contended that reasonable grounds do not exist for believing that the petitioner is connected with the commission of offence with which he has been charged and, therefore, his case is that of further inquiry and he is entitled to bail not as a matter of grace but as a matter of right. 6. On the other hand, the learned counsel for the State Mr. Sahibzada Khan, Additional Advocate-General submitted at the Bar that the petitioner has been named in the promptly lodged F.I.R. and has been assigned a specific role, therefore, in the circumstances, his bail petition was rightly rejected by the Judge, Special Court, Charsadda and that it was not the function of the High Court to accept his alibi at this stage which should be left for the decision of the trial Court. In support of his contention, the learned Additional Advocate General, placed reliance on Iqbalur Rehman v. The State PLD 1974 SC 83. 7. It may be stated at the very outset that it has probably escaped the notices of the learned Additional Advocate-General/Mr. Bashir Ahmad Khan, Advocate, learned counsel for the complainant party that in case Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 SCMR 219, a Full Bench of Honourable Supreme Court of Pakistan consisting of his Lordship Mr. Justice Yaqub Ali, Mr. Justice Salahuddin Ahmad and Mr. Justice Anwarul Haq, had considered the effect of plea of alibi for the purpose of bail and had come to the conclusion that the decision reported in PLD 1974 SC 83 does not spell out an absolute bar in the matter. It may be mentioned that in that case Ch. Muhammad Anwar Samma, M.P.A. alongwith others was charged for having committed an offence punishable under section 148/302/436, P.P.C. read with section 149 thereof, in connection with the double murder committed on 21-10-1974. On the basis of affidavits submitted by as many as 24 Members of Provincial Assembly, to the effect that the petitioner Ch. Muhammad Anwar Samma, M.P.A. attended the entire proceedings of the Provincial Assembly at Lahore at that day/date from 4-20 p.m. to 6.30 p.m. and that, therefore, it was not possible for him to be present at the place of occurrence which was situated within the jurisdiction of Police Station, Sadar, Gujrat. The learned Judge of the Lahore High Court was of the view that though the plea of alibi can only be ascertained at the time of inquiry/trial yet the same could be brushed aside for the purposes of bail. He accordingly admitted the said M.P.A. to bail. The order of learned Judge of the Lahore High Court was challenged before the Honourable Supreme Court of Pakistan on the ground that it was against the dictum laid down in case Iqbalur Rehman v. The State PLD 1974 SC 83. After hearing the learned counsel for the parties and going through the record of the case the Full Bench of the Honourable Supreme Court of Pakistan came to the following conclusion :— (b) Criminal Procedure Code (V of 1898)- S. 497(2)-Bail-Alibi, plea of--Affidavits of as many as 24 members of Provincial Assembly implying impossibility of accused's presence at scene of occurrence at given time-­Accused's plea, in circumstances, held, would require consideration at proper time and case on requiring further inquiry under S. 497(2)--High Court's order admitting accused to bail not interfered with in peculiar circumstances of case—Petitioner, however, could renew application for cancellation of bail when evidence implicating accused brought on record." 8. Beside this it was held in case Akram Khan v. The State and another 1978 SCMR 242 as under :- "S. 498-Ah'bi, plea of--Bail-Plea of alibi to be dealt with on its own merits. Not possible to lay down a rule of thumb to be followed in all cases of pleas of alibi-High Court while granting bail taking into account a certificate issued to accused (Employee of Defence Forces) from his unit as well as Unit Registrar stating his presence on duty at another station at time of occurrence-Order of High Court being neither unreasonable nor perverse and passed in exercise of proper discretion, held, not open to interference." 9. It may be mentioned, with advantage, that the facts of the case mentioned above are on all four as far as the case in hand is concerned. 10. In the case before me two certificates have been issued to the petitioner one by a Colonel and the other by a Major of the Frontier Corps showing that at the time of occurrence the petitioner was present on duty at the Headquarters of the Frontier Corps situated in Qila Balahisar. At this stage I would not like to make any comment regarding the genuineness of the Certificates in question but in my humble opinion the case of the petitioner would appear to fall within the scope of subsection (2) of section 497, Cr. P.C. i.e, that his case require further inquiry in view of the certificates filed by him. In the circumstances, it would not only be proper but would be just to release him on bail. The petitioner is accordingly admitted to bail and shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs. one lac with two sureties, each in the like amount, to the satisfaction of Judge, Special Court , Charsadda. 11. The Judge, Special Court, Charsadda is directed to see that the sureties are respectable persons of the locality and are men of means having sufficient property in their names. The Judge, Special Court is further directed to obtain properly documents/photo copies of the identity cards of the sureties and place the same on record. (MJLA.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2016 Present: sardar muhammad raza, J. Rana MUBASHAR AHMED and another-Petitioners versus STATE-Respondent Criminal Miscellaneous No. 10 of 1996, decided on 10th March, 1996. Pakistan Penal Code, 1860 (XLV of 1860)— —Ss. 298-B & 298-C--Constitution of Pakistan (1973), Art. 12(l)(a)- Criminal Procedure Code (V of 1898), S. 561-A-Anti-Islamic Activities of Qadiani Group, Lahori Group and Ahmadies (Prohibition and Punishment) Ordinance (XX of 1984), Preamble-Quashing of proceedings-Accused being known Qadianis while submitting Form "A" for obtaining National Identity Card had allegedly professed their religion in the relevant column to be Islam-Said Form "A" had been filled in and submitted by the accused in the Registration Office on 28-8-1982 where as professing Islam as a religion by an Ahmadi or Quadiani was made an offence through the promulgation of Ordinance XX of 1984 w.e.f. 26-4- 1984-Evidence recorded by Trial Court revealed that the accused (petitioners) openly claimed to be Ahmadis and never professed their religion as Islam particularly after the promulgation of Ordinance XX of 1984 and even in Form "B" concerning the registration of their children subsequent to the promulgation of the said Ordinance they had entered their religion in the relevant column as Ahmadi and never adopted duality-Involvement of accused in the case, thus, was in utter disregard of Art. 12(l)(a) of the Constitution and the proceedings against them in r Court being an absolute abuse of the process of law as well as of Court where quashed. [Pp. 2017 & 2018] A, B & C Mr. Ejaz Afzal Khan, Advocate for Petitioner. Miss Nighat Afsar, Advocate for the State. Date of hearing: 10th March, 1996. judgment Rana Mubashar Ahmad and Rana Munawar Ahmad sons of Karamatullah, residents of Mohallah Khan Bahadur Mansehra, through this petition under section 561-A, Cr. P.C. seek the quashment of proceedings taken against them under sections 298^B and 298-C, P.P.C. by City Police Mansehra vide F.I.R. No. 273/94, dated 9-5-1994, on the ground of being an abuse of process of law and abuse of the process of Court. 2. Brief background of the case is that one Abdur Rauf Roofi made a written complaint before the Sub-Divisional Magistrate, Mansehra that the petitioners being known "Quadianis" of Mansehra, while submitting Form "A" for the National Identity Card, had professed their religion in the relevant column to be Islam which offended the aforesaid sections of the Penal Law. 3. An inquiry was conducted in the Registration Office, the allegation was found true and a case was registered accordingly. The challan was put in Court and the trial by now has come to a stage where the evidence of prosecution is almost complete. The petitioners filed application before the trial Court for their acquittal under section 249-A, Cr. P.C. which was rejected. It met the same fate before the learned Sessions Judge in revision, who was of the view that as the evidence of prosecution was almost complete, it was not a proper stage for acquittal under section 249-A, Cr., P.C. The petitioners have moved this Court under section 561-A, Cr. P.C. 4. By words either spoken or written or though any other means of representation or communication, it has become illegal for an Ahmadi, either of Quadiani or of Ahmadi sect, to profess Islam as his religion. This has been made an offence under newly added sections 298-B and 298-C, P.P.C., through promulgation of Ordinance XX of 1984 that came into force on 24-4- 1984. 5. The Investigating Agency, the trial Court and the Court of Session unfortunately have failed to appreciate, rather avoided to appreciate the most unavoidable factual as well as legal aspect of the present case that professing Islam by an Ahmadi or Qadiani was made and offence through the promulgation of Ordinance XX of 1984 w.e.f. 26-4-1984 whereas Form A" in question was filled in and submitted by the petitioners on 28-8-1982. Both the Courts below have avoided to comprehend that the very allegation of the complainant did not constitute an offence at all and that the petitioners' involvement in the instant case was i« utter disregard of Article 12(1) of the Constitution of Pakistan. 6. So far is the legal aspect of the case which offended the veiy registration of F.I.R. It is clear from the veiy statement in Court of Abdur Rauf Roofi (P.W. 2), the complainant and Muhammad Akram, District Registration Officer (P.W. 1) that the petitioners openly claimed to be Ahmadis and never professed their religion as Islam particularly after the promulgation of Ordinance XX of 1984. It is apparent from Form "B" of egistration concerning the registration of children of the petitioners (Exh. P.W. 1/D1 and Exh. P.W. 1/D3) that subsequent to the promulgation of the aforesaid Ordinance the petitioners entered their religion in the relevant column as Ahmadi. They never adopted duality. 7. In the circumstances of the present case, the entries in Form "A" made by the petitioners on 28-8-1982 never constituted any offence and hence the very registration of case was an absolute abuse of the process of law, much less the trial thereof which has been an absolute abuse of the process of Court. 8. Miss Nighat Afzal learned counsel for the State relied upon 1994 PCr. LJ 1469 but it was a case where the provisions of section 561-A, Cr. P.C. were in fact not attracted. The complainant therein had brought a charge against the accused under section 409, P.P.C. where police case was dropped and hence the complainant brought a private complaint wherein material evidence had stood recorded when the accused suddenly came up with a plea for quashment under section 561-A, Cr. P.C. Miss Nighat Afzal further relied upon PLD 1994 Pesh. 141 which is a judgment written by myself and which goes against the stand taken by the learned counsel. It rather favours the petitioners. 9. The present proceedings against the accused petitioners vid F.I.R. No. 273, dated 9-5-1994 of Police Station Mansehra City, being an absolute abuse of the process of law as well as the process of Court, are hereby quashed under section 561-A, Cr. P.C. Both the accused are acquitted of the charge under sections 298-B and 298-C, P.P.C. They are on bail and their sureties are discharged of the liability under the bail bonds. (M.A.A.) Proceedings quashed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 2018 (DB) Present : mian muhammad ajmal AND jawaid nawaz khan gandapur, JJ. ASHRAF-Appellant versus STATE-Respondent Criminal Appeal No. 282 of 1995, decided on 6th March, 1996. (i) Criminal Trial— —Burden of proof—Burden of proving its case rest entirely on the prosecution which is duty bound to prove the same beyond reasonable doubt and this duty does not change or vary even where no defence plea is taken by the accused. [P. 2027] A (ii) Pakistan Penal Code, 1860 (XLV of 1860)-- —-Ss. 302/34 & 324-Sentence/Conviction-Challenge to-Appreciation of evidence-Eye-witnesses had contradicted each other in material points, made the identity of assailants uncertain and falsely implicated the acquitted accused-Ocular account was in direct conflict with medical evidence and was inherently defective and false-Occurrence did not appear to have taken place in the manner as alleged by the prosecution-Motive set up in the F.I.R. as well as alleged by the complainant in the Court was not proved-Accused was acquitted in circumstances. [P. 2027] B, D & E (iii) Pakistan Penal Code, 1860 (XLV of 1860)-- —Ss. 302/34 & 324~Motive-Prosecution is not bond to set up a motive for the commission of an offence, but once a motive is advanced by the prosecution, then is becomes obligatory for the prosecution to prove the same. [P. 2027] 0 Mr. Khawaja Muhammad Khan, Advocate for Appellant. Mr. Abdur RaufKhan Gandapur, Advocate for the State. Mr. Azim Shah, Advocate for the Complainant. Date of hearing: 6th March, 1996. judgment Jawaid Nawaz Khan Gandapur, J.-Accused, namely Mukhtar son of Kachkoal, aged 37 years and Adhraf son of Kachkoal, aged 30 years (brother inter se) residents of village Shahi Bala, Tehsil and District Peshawar, were put on trial in the Court of Additional Sessions Judge-V, Peshawar (Mr. Ehsanullah Khan Babar) for having committed offences punishable under section 302/324/34, P.P.C. 2. The allegations against the accused, facing trial, are that they, on 20-2-1994 at 6-00 p.m., alongwith their third brother, absconding accused Jan Muhammad, and in furtherance of their common object, intentionally committed the murder of Hakeem Shah son of Wazir, by firing ai him with their lethal weapons, on the thoroughfare of village Shahi Buia opposite the shops situated there. In addition to that they also made attempts at the lives of the complainant, Azeem Shah (P.W. 9,), and his brother-in-law Zewar Shah (P.W. 10) by firing at them. Luckily Loth oi the them escaped unhurt. 3. The Additional Sessions Judge, by his judgment, recorded on 8-8-1995, acquitted Mukhtiar accused, giving him the benefit of doubt, by accepting his plea of alibi. The appellant-accused was, however, found guilty of committing the murder of Hakeem Shah. As such the trial Court convicted him under section 302/34. I F C and sentenced him to undergo imprisonment for life and to pay Cue aaiuuuUng to Rs. 25,000 or in default thereof to undergo further S.I. for a paiod of three years. The Additional Sessions Judge further directed that the fiae, if realized, shall be paid to the legal heirs of the deceased by way of compensation. The appellant-accused was further convicted under section 324, P.P.C., and sentenced to R.I. for three years and also to pay a fine of Rs. 2,000 or in default thereof to under­ go S.I. for period of six months. The sentences of imprisonment were, however, to run concurrently. The benefit of section 382-B, Cr. P.C. was also extended to the appellant-accused. 4. By this appeal, the appellant (convicted-accused) has challenged the vires and the legality of the conviction of sentences imposed upon him by the Additional Sessions Judge. 5. Briefly stated, the prosecution case as disclosed in the F.I.R., can be enumerated as under :- (i) that on 20-2-1994 at about 4-00 p.m. the complainant Azeem Shah (P.W. 9) alongwith his brother Hakeem Shah (deceased) and his brother-in-law Zewar Shah son of Wazir Shah (P.W. 10) was proceeding to Village Shahi Bala. When all the three reached near the shops situated in Shahi Bala they found Ashraf (appellant-accused), Mukhtiar (acquitted accused) and Jan Muhammad (absconding accused), sons of Kachkoal residents of Shahi Bala present there. They were variously armed with lethal weapons. On seeing the complainant, Hakeem Shah (deceased) and Zewer Shah (P.W. 10), all the three accused started indiscriminate firing at them with their respective weapons. Resultantly, Hakeem Shah was hit and was killed on the spot. The unfortunate incident took place on the pathway (Ronda Shahi Bala) situated within the limits and at a distance of 6/7 kilometers from the Mathra Police Station. The complainant Azeem Shah (P.W. 9) and Zewar Shah (P.W. 10), however, escaped unhurt and did not receive/sustain any injury; (ii) that the occurrence was reported by Azeem Shah (P.W. 9) on the same day at 6-00 p.m., at Police Post, Shagai which was reduced into writing in the shape of Murasila (Exh. P.A./1) by A.S.I. Shahzali (P.W. 11) On the basis of the Murasila, F.I.R. Nos. 53 (Exh. P.A). was duly registered at Police Station Mathra at about 7-15 p.m. (iii) that the motive, as set up in the Murasila (Exh. P.A./l), for the occurrence, was stated to be an altercation which took place between the deceased and the assailants over some petty matter, some time in the morning, on the eventful day; (iv) that the investigation was carried out by A.S.I. Shahzali (P.W. 11) of Police Post Shagai, Police Station Mathra. In the first instance he had prepared the inquest report (Exh. P.W. 11/1) as well as the injury sheet (Exh. P.M./3) and then scribed the Murasila (Exh. P.A./1), on the basis of which F.I.R. No. 53 (Exh. P.A.) was duly registered in the Police Station Mathra. Thereafter he proceeded to the spot and prepared the site plan (Exh. P.B.) at the instance of Azeem Shah (P.W. 9). The Investigating Officer vide recovery memo. Exh. P.C./2 collected blood, with cotton (Exh. P.I), from the spot. An empty (Exh. P. 2) of .30 bore was also recovered from the scene of occurrence which was taken into possession vide recovery memo. Exh. P.C./3. The Investigating Officer also took into his possession the shirt (Exh. P. 3), Shalwar (Exh. P. 4), Banyan (Exh. P. 5), stained with blood, belonging to the deceased and produced by Constable Tehseenullah (P.W. 8). All these articles were sent by Dr. Umar Khitab (P.W. 4), who had conducted the autopsy on the dead body of the deceased. The bottle (Exh. P6) containing the spent bullet and recovered from the dead body of the deceased, was also taken into possession by the Investigating Officer vide recovery memo. Exh. P. 1; (v) that vide applications Exh. P.W. 11/12 and Exh. P. 11/3 the Investigating Officer applied for the issuance of warrants under section 204, Cr. P.C. and proclamation notices under section 87, Cr. P.C. against the accused who had absconded. It may be mentioned that both these applications (Exh. P. 11/2 and Exh. P. 11/3) were in fact scribed by A.S.I. Said Bostan (P.W. 6). The Investigating Officer then recorded the statements of all the P.W.s and was thereafter transferred; (vi) that the dead body of Hakeem Shah (deceased) was escorted to the mortuary by F.C. No. 3585 Tehseenullah (P.W. 8) where the same was identified by Zewar Khan son of Abdul Khanan (P.W. 5). The postmortem examination was conducted by Dr. Umar Khitab, Forensic Medicine Department, Khyber Medical College, Peshawar (P. W. 4); (vii) that on 27-8-1994 Mukhtiar (acquitted-accused) and Ashraf (appellant-accused) surrendered themselves before A.S.I. Said Bostan (P.W. 6) of Police Station Mathra. Both of them were accordingly arrested and their statements were recorded. After the arrest of the said two accused, S.H.O. Police Station Mathra, Rahmatullah (P.W. 7) submitted supplementary challan against them; (viii)that, it may be pointed out here, after the completion of the investigation, the local police had already submitted complete challan against the accused in the Court of Additional Sessions Judge through S.H.O. Ali Haider (P.W. 1) of the Police Station Mathra. 5. At the trial charge against the two accused was framed on 1-2- 1995 which was read over and explained to them. The accused pleaded not guilty, professed innocence and stated that they had been falsely implicated in the case and thus claimed trial. 6. To prove its case, the prosecution produced as many as 12 witnesses, almost all mentioned above. The accused were them examined under section 342, Cr. P.C. on 6-6-1995. Both of them neither produced any evidence in their defence nor chose to appear as their own witness and be examined, on oath, under section 340(2), Cr. P.C. 7. After hearing the learned counsel for the parties and taking into account the prosecution evidence, the Additional Sessions Judge, Peshawar, by his impugned judgment, acquitted Mukhtiar accused by giving him the benefit or doubt. He, however, convicted appellant accused Ashraf under section 302/324, P.P.C. and sentenced him as stated earlier in para. 2 above. 8. We have had the advantage of hearing the 'learned counsel for the parties, Khawaja Muhammad Khan, Advocate for the appellant, Mr. Abdul Rauf Khan Gandapur, Advocate for the State, assisted by complainant Azeem Shah and have also gone through the record of the case with some degree of care. 9. At the outset, it may be stated, that the fate of instant case, in the main, hinges on the ocular testimony of complainant Azeem Shah (P.W. 9) and Zewar Shah (P.W. 10) as well as the circumstantial evidence, motive apart. 10. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance. 11. While in the witness-box the complainant Azeem Shah (P.W. 9), narrated in detail the incident which is almost the same as has been given in Murasila Exh. P.A./1, However, it may be noted, that the complainant while giving the "motive" for the alleged killing, contradicted his own stand as taken in the Murasila (Exh. P.A./1) In the Murasila the complainant had specifically mentioned that the motive for the commission of offence was that in the morning of the eventful day, his brother, Hakeem Shah (deceased) had some altercation with the accused. But when he was examined on oath in the Court as P.W. 9 he stated in the examination-in-chief :- "The motive for the occurrence was that a day prior to the occurrence a verbal altercation had taken place between the deceased and the accused." 12. In his cross-examination the complainant (P.W. 9) admitted that he did not know the name of the shopkeeper, in front of whose shop, the unfortunate incident took place. He also admitted that quite a few person were present, on the spot, at the time of the occurrence. According to him he did not know the accused before the occurrence because they were the residents of another village. According to him he was informed about the names of the accused by the people who were present on the spot at the time of the occurrence. The complainant further stated, in his cross-examination, that he did not notice from which direction the accused had emerged and whether they were armed with shotguns or rifles. He admitted that after the occurrence neither he nor Zewar Shah (P.W. 10) raised any hue and cry so as to attract the people to arrest the accused. He also admitted that :-- (i) he did not, know that Hakeem Shah (deceased) was fired upon and was injured in case lodged vide F.I.R. No. 109 of 1987 and registered in Police Station, Mathra; (ii) he did not know that Naseem Shah son of Muneer Shah had once injured Hakeem Shah (deceased) by firing at him effectively and that a case, in this respect, was duly registered vide F.I.R. No. 52, dated 20-3-1989 at Police Station, Mathra under section 307/34, P.P.C. against Naseem Shah and that the said Naseem Shah was still absconding in that case as no compromise had been effected between him and the deceased ; (iii) he did not know if Hakeem Shah (deceased) alongwith two other persons, belonging to Village Regi, were charged for having killed one Kamal son of Umar Khan, driver of Truck No. DNA-3407, and that Hakeem Shah (deceased) had become an absconder in that case and was declared as a proclaimed offender. 13. It may also be mentioned here that in his statement recorded in the Court, the complainant (P.W. 9) stated that at the time of the occurrence the deceased was going ahead of him as well as Zewar Shah (P.W. 10) and that he had reported this fact to the Police Officer who recorded Murasila Exh. P.A./1 at his instance. However, a perusal of the Murasila would show that this fact was not mentioned in the Murasila (Exh. P.A./1). 14. Zewar Shah (P.W. 10) who is closely related to the complainant, being his brother-in-law, as well as to the deceased and is alleged to have witnessed the occurrence, when examined on oath, stated that on the eventful day he alongwith the complainant (P.W. 9) and the deceased was going from Regi to Village Shahi Bala on foot, that Hakeem Shah (deceased) was proceeding ahead of them while he and the complainant were following him. According to him when they reached near the shops, the place of occurrence, the deceased was fired upon. He further stated that thereafter he saw Jan Muhammad (absconding accused), Mukhtiar Ahmad (acquitted accused) and Ashraf (appellant) running towards Village Shahi Bala. He further stated that after the occurrence they rushed towards the deceased and found him dead. It may be noted that this witness, in his entire examination-in-chief, nowhere charged the accused for firing at the deceased. He also did not state that he had seen the appellant-accused the acquitted accused/absconding accused fire at the deceased. 15. When cross-examined, this witness stated that he did not know the name of the shopkeeper in front of whose shop the occurrence had taken place. He further stated that he had not accompanied the dead body of the deceased to the police post from the place of occurrence. In the next breath he stated as under :-- "The dead body of the deceased was taken in Datsun first to Police Station Nasir Bagh and then to Police Post Shagai for lodging the report of occurrence." 16. It may be noted that by advancing an altogether new story, in respect of occurrence this witness who is alleged to be an eye-witness, has materially contradicted the version of the complainant (P.W. 9) as given by him while he was in the witness-box as well as the version as contained in ttieMurasila (Exh. P.A./1). 17. Again, this eye-witness stated in crystal clear words that :-- "I had not seen whether the accused were armed with topaks or pistols." 18. The matter does not end here, as P.W. 10, when further crossexamined, stated on oath that :-- "My statement was not recorded by the Investigating Officer and if any statement had been written that would be written by the Investigating Officer on his own behalf because I was not asked by the Investigating Officer." 19. The conflict/contradiction between the versions/account given by these two eye-witnesses in respect of the one and the same occurrence being irreconcilable, has, in our opinion, shattered the very veracity of the ocular testimony which has, in the circumstances, become highly doubtful. Both the alleged eye-witnesses have contradicted each other on almost at the material points as discussed above, and have also made the identity of the assailants, who caused the death of the deceased, extremely doubtful. 20. The Investigating Officer A.S.I. Shahzali Khan (P.W. 11) also does not seem to be a truthful witnesses because in his cross-examination he stated on oath that :-- (i) he had recorded the statement (Exh. D.A. ) of Zewar Shah (P.W. 10) on 20-2-1994 at the place where the occurrence took place; and (ii) Zewar Shah (P.W. 10) had come to the police post alongwith the dead body of the deceased. 21. Needless to mention that Zewar Shah (P.W. 10) had categorically denied that this statement was recorded by the Investigating Officer and that he had gone, with the dead body of the deceased, to the police post. 22. After the close of the prosecution case both the accused were examined under section 342, Cr. P.C. When Mukhtiar accused (since acquitted) was asked :-- "It is in evidence that just after the occurrence you remained absconder till your arrest. What do you say about it T 23. The accused replied as under :-- "The allegation is incorrect. On the day of occurrence I was serving in Saudi Arabia where I had gone on the basis of valid Passport and Visa. I produce attested copy of my Passport and Visa alongwith P.I.A. ticket of the relevant days which are Exh. D.A., Exh. D.A./1, Exh. D.A./2, Exh. D.A./3, Exh. D.A./4, Exh. D.A./5, Exh. D.A./6, Exh. D.A./7, Exh. D.A./8 and Exh. D.A./9 annexed therewith 11 sheets which pertains to visa and P.I.A. tickets. I also produced attested copy of bail application and bail orders Exh. D.B. (5 sheets) wherein I had requested for disposal of application based on inquiry of the local police." 24. Similarly when he was asked :-- It is in evidence that the motive for the occurrence was that a day prior to this incident verbal altercation took place between the deceased and the accused party. What do you say about it T 25. The accused (since acquitted) replied as under :-- The deceased was a vagabond and a desperate person. He was fired at by one Naseem and a case F.I.R. No. 62 Exh. D.C. was registered against Naseem on the report of Faqir Shah deceased. Naseem Shah is still an absconder. Vide F.I.R. rch, D.C./l the deceased was fired at by unknown person and the case was registered because the deceased was injured on his chest. Vide F.I.R. Exh. D.C./2, the deceased was involved in a case of murder and later on released on bail. Otherwise too there is no eye-witness about the alleged altercation." 26. The appellant (convicted-accused) was also examined under section 342, Cr. P.C. when he was asked the following question :— "It is in evidence that motive for the occurrence was that a day prior to this incident verbal altercation took place between the deceased and accused party. What do you say about it T 27. The appellant-accused replied as under :-- "The deceased was a vagabond and a desperate person. He was fired at by one Naseem and a case vide Exh. P.D. was registered against Naseem on the report of Faqir Shah deceased. Naseem is still absconder. Vide Exh. D.C./l, the deceased was fired at by unknown person and a case was registered because the deceased was injured on his chest. Vide F.I.R. Exh. D.C./2 the deceased was involved in a case of murder and later on released on bail. Otherwise too there is no eye-witness about the alleged altercation." 28. Both the accused, however, refused to be examined as their own witnesses under section 340(2), Cr. P.C,. and to produce any evidence in their defence. 29. Next we have to ascertain the evidentiary value of the circumstantial evidence. The record of the case, which is before us, shows that the site plan was prepared by the Investigating Officer (P.W. 11) at thexc nstance of the complainant (P.W. 9). According to this the deceased has been shown to be present, at point No. 1, when he was allegedly fired upon by the appellant-accused (point No. 4), the acquitted accused (point No. 5) and the absconding accused (point No. 6). It would therefore, follow that if the story as given by the alleged eye-witnesses, P.W. 9 and P.W. 10, is to be taken as true/correct, then in that case, the deceased should have received all the injuries (5 in number) on the front side of his body, i.e. his chest etc. However, when Dr. Umar Knitab of Forensic Medicine Department Khyber Medical College, Peshawar (P.W. 4) was examined, who had conducted post­ mortem examination/autopsy on the dead body of the deceased, he stated, in the last three lines of his cross-examination as under :-- "Entry wound No. 1 rather all the entry wounds are on the left and from left to right side of the body of the deceased." 30. It is, therefore, very much obvious that both the alleged eye­ witnesses had told a lie regarding this important point which of course, had a material bearing on the culpability of the appellant. Since both the eye­ witnesses, in our opinion, are compulsive liars, as such their evidence cannot be believed/relied upon. 31. As against this, the stand taken by Mukhtiar, the acquitted accused, duly supported by the Passport, Visa and P.I.A. ticket showing that he was not present at the place of occurrence on the day when the nfortunate incident took place and was in Saudi Arabia, was accepted by the trial Court. The Additional Sessions Judge, therefore, by extending the benefit of doubt to him, acquitted him. 32. In the light of above discussion, it has been strenuously alleged by the learned counsel for the appellant that in the present case the eye­ witnesses have falsely implicated one of the culprits, therefore, the credibility of their testimony, as regards the other culprits, stood completely shattered/eroded and cannot be safely relied upon, that in the ircumstances, it had to be discarded. Judged in this context we cannot ignore that fact that the testimony of the two P.W.s is inherently defective, contradictory in nature and therefore, does not inspire confidence. 33. It is well-settled principle of law that in criminal cases the fburden of proving its case rests entirely on the prosecution. The prosecution is duty bound to prove its case, against the accused, beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. It would, therefor, follow that anything which goes in favour of the accused must be taken into consideration and the benefit of the same, if any, be extended to him not as a matter of grace but as a matter of right. 34. Both the eye-witnesses, in our opinion, have contradicted each other on material points and have also introduced an element of uncertainty regarding the identify of the assailants, who had killed the deceased. The question of sifting the grain from chaff, in the circumstances of the present case, does not arise because the ocular account conspicuously suffers from false implication of the acquitted accused, the manner of assault, the incorrect attribution of weapons to them and is in direct contradiction with the medical evidence. It appears that the occurrence had taken place in a different context than the one alleged by the prosecution. The prosecution, no doubt, sees only what it is prepared to see but in the present case the ocular evidence, being inherently defective and false merits no consideration, and is accordingly discarded. (PLD 1995 Pesh. 144). 35. Lastly, even the motive, as set up in the F.I.R. (Exh. P.A.), for the commission of the offence, has not been proved by cogent evidence uring the trial. The motive regarding altercation between the accused and the deceased has not been disclosed with full detail. It is as vague as it is hazy. It has been mentioned in the Murasila (Exh. P.A./1), scribed at the instance of complainant Azeem Shah (P.W.I 9), that the altercation between the parties took place in the morning of the evenful day, whereas the same person, i.e., the complainant when examined as P.W. 9, stated that the altercation between the accused and the deceased took place a day prior to the occurrence. The prosecution, it may be mentioned here, is not bound to set up a mot ve for the commission of an offence. The fact, however, remains that if any motive is advanced by the prosecution for the commission of the offence, then in that case, it becomes obligatory for the prosecution to prove the motive. Failure to do so would naturally be fatal for the prosecution. In the instant case the motive set up in the F.I.R. as well as alleged by the

complainant (P.W. 9) in his statement recorded in the Court stands proved. This fact has further weakened the prosecution case. (1996 PCr. LJ 238). 36. For the foregoing reason, we are of the view that the prosecution has not been able to prove its case against the appellant-accused beyond reasonable doubt and, therefore, we accept this appeal, set aside the conviction and sentence of the appellant-accused and acquit him. He shall be set at liberty forthwith if not required in any other case.z (M-AJL) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2028 Present: jawaid nawaz khan gandapur, J. NISAR-Petitioner versus STATE-Respondent Criminal Miscellaneous Bail Application No. 191 of 1996, decided on 7th April, 1996. Criminal Procedure Code, 1898 (V of 1898)-- —Ss. 497 & 103-Prohibition (Enforcement of Hadd) Order (4 of 1979) Art. 3/4--West Pakistan Arms Ordinance (XX of 1965), S. 13-Bail-Police party had no prior secret information about the transporting of the contraband items by the accused~At an odd hour of the winter night compliance of S. 103, Cr. P.C. by the police cannot be expected-Police therefore, had committed no illegality in non associating public witness with the recovery proceedings-Record not suggestive of any motive, ill-will or enmity on iLe part of the complainant/Police Officer for false implication of accused who had been caught red-handed with the contraband items-Case against accused fell within the prohibitory clause of S. 497(1), Cr. P.C.-Bail was declined in circumstances. [Pp. 2030 & 2031] A, B & C Mr. Attaullah Khan, Advocate for Petitioner. Mr. Roohul Amin, Advocate for the State. Date of hearing: 7th April, 1996. judgment On 26th December, 1995, at about 21-30 hours (9-30 p.m.) Sarir Iqbal, S.H.O. Police Station, Nasir Bagh, alongwith Wall Muhammad Khan, A.S.I. Mashal Khan, A.SJ. and other police officials, had held a Nakabandi on the road leading to village Badezai. In the meantime, the petitioner arrived there. He was stopped and searched. His personal search led to the recovery of the following items from his possession :-- (i) Charas (one kilogram). (ii) Heroin powder (50 grams). (iii) 30 bore pistol (one). (iv) Live round of .30 bore pistol (28). 2. When enquired, the petitioner disclosed that his name was Nasir son of Ghulam Muhammad and that he was the resident of Badezai. 3. On demand the petitioner failed to show that he was in lawful possession of the Charas/heroin powder. Similarly he could not produce a valid licence/permit for carrying the .30 bore pistol. 4. All the items were taken into possession by the S.H.O. vide ecovery memo., dated 26-12-1995 in the present of its marginal witnesses. Thereafter he scribed the Murasila and sent the same to Police Station Nasir Bagh, where, on its basis, F.I.R. No. 289 was duly registered at 22-00 hours. 5. It may be pointed out that the samples of Charas and the heroin powder were sent for chemical analysis and in this respect the report of the Chemical Examiner is in the affirmative as it confirms that the contraband substance, recovered from the possession of the accused, were in fact Charas and heroin. It may be added that during the days of occurrence, section 144, Cr.P.C. was also imposed and by keeping an unlicensed pistol, the petitioner not only violated the provisions of the Arms Act but also violated the Prohibition Order. 6. The petitioner after his arrest in the first instance, applied for bail to the Ilaqa Magistrate, who vide his order, dated 7-1-1996, refused to enlarge him on bail. To redress his grievance, the petitioner submitted an application for bail before the Additional Sessions Judge, Peshawar (Mr. Ziauddin Siddiqui). The Additional Sessions Judge by his judgment, dated 5-2-1996, rejected his application for bail. Hence this petition. 7. I have heard Mr. Attaullah Khan, Advocate the learned counsel for the petitioner and Mr. Roohul Amin, Advocate the learned counsel for he State and have also gone through the record of the case carefully. 8. The main thrust of the arguments of the learned counsel for the petitioner was that the alleged recovery of Charas/heroin/unlicensed pistol, was witnessed only by the police officials and that the S.H.O., did not care or take pain to join some independent persons, from the public, to witness the recovery, that in the circumstances, the petitioner's case had become that of further inquiry and he was entitled to be released on bail, not as a matter of grace but as a matter of right. To support his contention, the learned counsel for the petitioner placed reliance on the following case-law :-- (1) Muhammad Aslam alias Bill v. The State 1986 MLD 1152. (2) Talib Hussain v. The State 1995 PCr. LJ 1626. (3) Zulftqar All Shah v. The State 1995 PCr. LJ 1945. 9. In the case reported as 1986 MLD 1152, the prosecution version was that the A.S.I. Muhammad Suleman had received a secret information on 30-11-1985 that the petitioner was selling contraband heroin powder near Jamiya Ashraf-ul-Madaris. Thereupon, he proceeded to that site and pprehended the petitioner. On his personal search, heroin powder, weighing 13 grams, wrapped in a plastic cover, alongwith a dagger was recovered from him. In that case the Police Officer had received a secret information prior to the raid and therefore, he could have easily taken alongwith him, two respectable persons of the Ilaqa, to witness the recovery. The facts of that case are, therefore, quite different from the facts of the case in hand. 10. In the second case 1995 P.Cr. LJ 1626 the raid was conducted by the police on receiving a secret information in the first instance that Talib Hussain alias Taliba was selling narcotics in the graveyard known as Darbar Hazrat Peer Bachey Shah, Suraj Miani, Multan. Accordingly, the S.H.O. formed the raiding party, comprising of a number of police officials and raided the place. He searched the accused and recovered from his possession 20 grams of heroin and 110 grams of opium. The recovery memo, was ttested by A.S.I. Zafar Iqbal, and Head Constable Habibullah. It was held that the possession of 110 grams of opium was a bailable offence. Regarding the recovery of 20 grams of heroin, it was held that the Police Officer, after having received secret information, did not choose to join any person from the public in respect of recovery proceedings and that the recovery memo, had been attested only by the police officials. Therefore, the accused was admitted to bail, in the circumstances. This case, in may opinion, would not help the petitioner in any manner as far as the present case is concerned. 11. In the 3rd case 1995 PCr. LJ 1945, the police party, under the supervision of A.S.I. Manzoor Ahmad, Police Station Haroon Abad, was on Gasht at Fauji Chowk City Haroon Abad, when the petitioner arrived there. He on seeing the police party, tried to decamp from the place of occurrence. However, the police party apprehended him and on search recovered 40 grams of heroin from his person which was taken into possession vide recovery memo., attested by the constables, namely, Manzoor Ahmad and Malik Ahmad. The contention of the learned counsel for the petitioner that even though the petitioner was apprehended and arrested from Fajui Chowk, no person from the public was joined at the time of alleged recovery, and that this aspect of the matter was entitled to be given due weight in favour of the petitioner, prevailed upon the learned Judge, who held that the recovery memo, was attested by two police constables and that no doubt, they were respectable persons but they being on Gasht in the area, alongwith Manzoor Ahmad A.S.I./complainant, the veracity of the statements of the three Police Officers shall have to be tested by the weapons of the cross-examination. The learned Judge was of the view that the Police Officers of every rank were, no doubt, respectable persons but the law had to take its own course. He, therefore, accepted the application and admitted the petitioner to bail. 12. In the present case, it may be mentioned, that the petitioner was stopped and searched at about 21-30 hours, i.e., at 9-30 p.m., in the month of December, 1995 on Badezai Road (Ronda Badezai) which is very close to the Tribal territory. To expect that at that hour of the night, independent witnesses, from public, could be available at the scene of occurrence, would e too much. Similarly, the police party had no prior secret information regarding the fact that the petitioner was transporting the contraband items and therefore, before apprehending him they could arrange for two respectable persons from the fllaqa. Keeping in view the facts mentioned above, I am of the opinion that no illegality has been committed by the police officials in not connecting independent persons/public witnesses to witness the recovery. 13. Needless to mention that the learned counsel for the petitioner, for the time being, could not show as to why and for what reasons the petitioner was falsely implicated in the present case. There is nothing on the file to suggest that the A.S.I./complainant had any motive, ill-will or enmity towards the petitioner to have him falsely implicated in the present case. 14. Since the petitioner was caught red-handed, with the contraband items, and his case also falls within the prohibitory clause of section 497, Cr. P.C., therefore, this petition does not merit consideration and is accordingly dismissed. 15. It may also be pointed out that the challan in this case has already been completed on 10-3-1996 and the prosecution is therefore, directed to file that same in the competent Court, within a fortnight. (M.A-AJ Bail refused.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Peshawar ) 2031 (DB) Present: abdur rehman khan and jawaid nawaz khan gandapur, JJ. MUHAMMAD REHMAN alias KHUSHAL-Appellant versus STATE-Respodnent Jail Criminal Appeal No. 203 of 1995, decided on 27th March, 1996. Explosive Substances Act, 1908 (XI of 1908)- —S. 5-Conviction/sentence--Challenge to~Appreciation of evidence- Cleaner of wagon who allegedly pointed out to the Excise Inspector that the gunny bag from which ten Hand Grenades with ten Fuses were recovered belonged to accused, was neither made a marginal witness to the recovery memo., nor his statement was recorded by the said Inspector-Hand Grenades and Fuses alleged to have been recovered were not produced in the Court in the prosecution evidence-Armourer who had examined the Hand Grenades etc. was not produced as a witness-Recovery of Hand Grenades and Fuses from the accused, therefore, was doubtful and the case against accused failed due to insufficient evidence-Accused was consequently acquitted. [P. 2036] A, B & C Mr. Khalid Khan, Advocate for Appellant. Mr. Muhammad Khurshid Khan, A.A.-G. for the State. Date of hearing: 27th March, 1996. judgment Abdur Rehman Khan, J.~The appellant, namely, Muhammad Rehman was tried by Mr. Inayatullah Khan, Special Judge, Mardan (Sessions Judge) under sections 4 and 5 of the Explosive Substances Act, 1908 and was convicted/sentenced as under :- (i) Awarded five years' R.I. for having committed an offence punishable under section 5 of the said Act, and (ii) All movable as well as immovable property confiscated in favour of the State. 2. Aggrieved by the said order of the Special Judge, dated 19-9-1994 the appellant has directed this appeal for the redress of his grievance and has challenged the validity/vires of the impugned judgment. 3. The prosecution case as disclosed in the First Information Report (Exh. P.A.), in brief, is that it was on 4-9-1993 that the Excise Inspector Farman Said (P.W. 2), alongwith some of the Foot Constables of his Department, had held a Nakabandi near Sange Marnier Koroona situated on Swabi Road for the checking of the vehicles which came from Mardan side. It was at about 12-30 hours that a Flying Coach, Registration No. SB-1245 arrived there came from Mardan side. It was signalled to stop. The staff checked the Flying Coach. Since the appellant was found sitting in it under mysterious conditions, therefore, he was also searched. A gunny bag (Bori) Exh. P. 1 was recovered from his possession. When the gunny bag was checked, a crate was found lying in it. The crate was accordingly opened which resulted in the recovery of hand grenades (ten in number) alongwith ten fuses. All these were concealed beneath the grapes packed in the crate in question. 4. Inspector Farman Said (P.W. 2) vide recovery memo. Exh. P.B., took the crate into his possession in the presence of Excise Constable hulam Nabi (not produced) and Excise Constable Muhammad Ghufran (P.W. 3). 5. Thereafter, the seizing officer (P.W. 2) scribed Murasila (Exh. P.A./1) and sent the same to the Police Station "B" Division,. Mardan, where on its basis, F.I.R. (Exh. P.A.) was registered by Sub-Inspector Gul Muhammad Khan (P.W. 5). 6. The investigation in the case was entrusted to S.H.O. Police Station, Chorra Ghaffar Ali Khan (P.W. 4). He recorded the statements of the witnesses hailing from the Excise and Taxation Department Mardan. Vide recovery memo. (Exh. P.C.) the Investigating Officer recovered a letter from the pocket of the appellant, written in Pushto language. This letter was allegedly written by one Hamesh Gul and was addressed to Rehmatullah in respect of the hand grenades in question. Recovery memo. Exh. P.C. was witnessed by two police ofBcials namely Head Constable Police Post Par Hoti Liaqatullah and Sub-Inspector Nazir AH (P.W. 1). vide application (Exh. P.M.) the hand grenades, 10 in number alongwith the 10 fuses, duly sealed in a parcel, were sent to the Armourer for his expert opinion. The said opinion Exh. P.D. was sent to the Investigating Officer S.H.O. Ghaffar Ali Khan (P.W. 4) then approached the District Magistrate, Mardan and obtained sanction/permission for prosecuting the appellant. After completing the necessary police investigation the case file was handed over to the then S.H.O. Ain-ud-Din Khan (P.W. 6) who submitted complete challan against the appellant in the Special Court, Mardan, for trial. 7. At the trial, the accused pleaded not guilty to the charges leveled against him and stated that he was innocent and falsely charged. He thus, claimed trial. 8. To prove its case, the prosecution examined as many as six witnesses, almost all mentioned above. The accused was examined under section 342, Cr. P.C. He neither chose to be examined; as his own witness, on oath, under section 340(2), Cr. P.C. nor did he produce any evidence in his defence. 9. After taking into account the prosecution evidence and hearing the counsel for the parties, the Special Judge, Mardan convicted and sentenced him by his impugned judgment referred to in para 1. Hence this appeal. 10. We have had the advantage of hearing Mr. Khalid Khan, Advocate learned counsel for the appellant and Mr. Khurshid Khan, Additional Advocate General for the State and have also gone through the record of the case, with some degree of care. 11. It may be mentioned here that the fate of the instant case hinges mainly on the ocular testimony of Excise Inspector Farman Said (P.W. 2), Excise Constable Muhammad Ghufran (P.W. 3) and Sub-Inspector Ghaffar Ali Khan (P.W. 4). 12. At the very outset, the learned counsel for the appellant attacked the evidentairy value of the statement of Excise Inspector Farman Said (P.W. 2) on the ground that he is not a truthful witness. He drew our attention to the fact that according to this witness when the Flying Coach, bearing Registration No. SB-1245, came from Mardan side it was stopped and checked. This witness further stated that at that time few other persons were also sitting in the Flying Coach, that they found the appellant-accused was also sitting there in a mysterious condition, therefore, they asked the appellant as to who he was. The appellant introduced himself as Muhammad Rehman alias Khushal son of Muhammad Wali, resident of Kunar, Afghanistan. P.W. 2 further stated that from the possession of the appellant a gunny bag (Exh. P. 1) was recovered. According to him when the gunny bag was opened it was found that it contained a crate (not produced in evidence) being graps therein, that when the grapes were removed, 10 hand grenades, alongwith 10 fuses, were recovered from the beneath the grapes. Accordingly the appellant-accused was arrested on the spot. A Murasila (Exh. P.A./1) was drafted under section 4/5 of the Explosive Substances Act 1908 and the same, alongwith hand grenades and other articles, was sent to the police station for the registration of the case against the appellant. 13. It may be noted that vide recovery memo. (Exh. P.B.) the crate and the gunny bag (Exh. P.I) were taken into possession alongwith the hand grenades and fuses in the presence of Sepoy Muhammad Ghufran (P.W. 3) and Sepoy Ghulam Nabi (not produced). 14. When cross-examined this witness admitted that only 5/6 passengers were present in the flying coach at the relevant time, besides the cleaner and the driver. He also admitted that he had not prepared the site plan showing the seat where the appellant was seated in the Flying Coach. He further admitted :-- "I got in confirmed from the cleaner that the crate recovered by him belonged to the accused." 15. The learned counsel drew our a t t°ntion to the fact that, in the circumstances, the seizing officer, Inspector Farman Said (P.W. 2) was not only required but was also duty bound to have recorded the statement of the Cleaner in this respect. He submitted that this witness has categorically admitted as mentioned above, that he had neither recorded the statement of the said Cleaner nor had made him as one of the marginal witness to the recovery memo. The witness also failed to mention the name of the Cleaner/driver in the Murasila (Exh. P.A./1). 16. The learned counsel thus contended that the present case has become doubtful because one of the witness to the recovery memo. (Exh. P.B.) vide which the hand grenades were allegedly recovered, when examined as P.W. 3 stated that the Flying Coach bearing No. SB-1245, which came from Mardan side, was stopped at about 12-30 p.m, during the course of the Nakabandi, that it was Constable Ghulam Nabi (not produced) who brought out the appellant from the said vehicle. He was found in possession of a crate of grapes (lying in a gunny bag), the search of which led to the recovery of as many as 10 hand grenades alongwith 10 fuses. According to him the appellant was then arrested, the articles were taken into possession vide recovery memo. (Exh. P.B.) and the report was scribed by Excise Inspector Farman Said (P.W. 2) which was then sent to the police station for the registration of the case. 17. The learned counsel for the appellant submitted that in his cross-examination this witness has clearly contradicted the prosecution story as set up in the Murasila (Exh. P.A./1) F.I.R. (Exh. P.A.) and in the statement of Excise Inspector, Farman Said (P.W. 2). The learned counsel drew our attention to the fact that this witness further stated that it was Constable Ghulam Nabi (not produced) who had brought out the appellant alongwith the crate, from the Flying Coach, that at that time the Excise Inspector, Farman Said (P.W. 2) was standing near one of the Flying Coaches and that it was there that the grenades in question were detected/recovered from the crate. The witness further stated that they had asked the Cleaner about the owner of the crate who then pointed out that the same belonged to the appellant, that thereafter the recovery memo, was prepared. 18. This witness also admitted that he did not know the name of the said Cleaner. 19. Sub-Inspector Police Station "B" Division, Mardan Ghaffar Ali Khan was examined as P.W. 4. He stated that during the days of occurrence he was posted as Incharge Police Post Par Hoti, Mardan, attached to Police Station "B" Division, Mardan. According to him when the copy of the F.I.R. (Exh. PA.) was handed over to him, for investigating the present case, he recorded the statements of the witnesses who belonged to the Excise and Taxation Department Mardan and vide recovery memo. (Exh. P.C.) took into his possession a letter, written in Pushto language, addressed to one Rehmatullah by one Hamesh Gul regarding the 10 hand grenades. He further stated that he then sent the hand grenades to the Armourer for obtaining his opinion (Exh. P.D.), that after obtaining the requisite sanction for the prosecution of the appellant from a concerned District Magistrate, Mardan and after completing the investigating, in all respects, the case file was handed over to S.H.O. Ain-ud-Din Khan (P.W. 6) who submitted complete challan against the appellant. 20. When cross-examined this witness admitted that the letter, scribed in Pushto, and recovered from the pocket of the appellant, was taken into possession vide recovery memo. (Exh. P.C.) but was not produced in the Court and exhibited in the prosecution evidence. He further stated that he did not remember as to what instructions were given in the said letter in respect of the hand grandes i.e., whether the hand grenades should be disposed of, sold, or destroyed. He further admitted that he had not referred the appellant to any Medical Officer for obtaining his opinion as to whether or not the appellant who had only one hand, was capable of lifting any weighl He admitted that since he had arrested the appellant, therefore, he was not in a position to point out as to where the appellant was sitting, at the relevant time, and as to wherefrom the crate, containing the hand grenades, was recovered. He further admitted that it was a fact that he had not investigated the case on these lines. According to him none of the Excise fficials accompanied him to the spot/scene of occurrence in order to point out the place from where the recovery was made/effected. 21. From a dose scrutiny/analysis of the evidence on record we have noticed an important fact which is that the scene of occurrence is situated on the main road. Excise Inspector Farman Said (P.W. 2) had stopped the Flying Coach in question and had allegedly recovered the hand grenades from the possession of the appellant. He had categorically stated that it was the Cleaner of the Flying Coach who had informed him that the gunny hag, containing a crate having grapes and hand grenades, belonged to the appellant. It would, therefore, follow that Excise Inspector Farman Said (P.W. 2) had not, in fact, recovered the gunny bag from the possession of the appellant because if he had recovered the said gunny bag from the possession of the appellant then in that case he was not obliged to ask the leaner as to whom the gunny bag belonged. To the same effect is the statement of Constable Muhammad Ghufran (P.W. 3), the marginal witness of the recovery memo. Exh. P.B., who too admitted, in his c ossexamination, that it was the Cleaner who had pointed out that the gunny bag belonged to the appellant. Not conceding but for the sake of arguments if the contentions of these two P.Ws. are taken to be correct, that it was the Cleaner who had pointed out to them that the appellant was the owner of the gunny bag, then in that case if was not only necessary but was incum- bent upon the Excise Inspector Farman Said (P.W. 2) to have either made the Cleaner as one of the marginal witness to the recovery memo, vide which the hand grenades were taken into possession, or to have at least recorded his statement in this respect. Neither of the two were done for reasons best known to the Excise Inspector Farman Said (P.W. 2) alone. This fact alone has made the recovery of the hand grenades from the possession of the appellant highly doubtful. Needless to mention, as admitted by both the P.W.s., even the name/address of the said Cleaner was not noted. 22. The matter does not end here. During the course of the trial although the gunny bag was exhibited in evidence as Exh. P. 1, the crate which allegedly contained the contraband items was not produced in evidence/exhibited. Similarly 10 hand grenades as well as 10 fuses were also not produced in the Court in the prosecution evidence. The Armourer, who had examined the hand grenades etc., was also not produced in the witness- box to stand the test of the cross-examination by the other side. 23. In the circumstances, we are of the considered view that a close scrutiny of the testimony of Excise Inspector Farman Said (P.W.), Constable Muhammad Ghufran (P.W. 3) and S.H.O. Ghaffar Ali Khan (P.W. 4) draw us to the inevitable conclusion that the prosecution has miserably failed to prove its case, beyond reasonable doubt, against the appellant. 24. The case against the appellant resultantly, fails on account of insufficient evidence. This appeal is, therefore, accepted and the conviction and sentence as recorded by the Special Judge, Mardan is set aside and the appellant is acquitted. He shall be set at liberty forthwith if not required in any other case. (M.A.A) Appeal accepted

PLJ 1996 Cr PLJ 1996 Cr.C. ( Peshawar ) 2037 Present: ZEENAT KHAN, J MUHAMMAD NASIR-Petitioner versus STATE-Respondent Criminal Revision No. 1 of 1996, decided on 28th February, 1996. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —Ss. 13 & 16--Criminal Procedure Code (V of 1898), Ss. 241-A, 242, 243 & 439-Conviction on admission—Trial Court without giving an opportunity to the accused to show cause of the allegations brought against them, convicted straightaway on their pleading guilty-Non-compliance of mandatory provisions of Ss. 241-A, 242 & 243, Cr. P.C. by the Trial Court had caused great injustice-Charges against the accused were also not properly framed by Trial Court-Convictions of accused were set aside in circumstances and the cases were sent back to Trial Court with the direction to proceed in accordance with law after complying with the mandatory provisions of Ss. 241-A, 242 & 243, Cr. P.C. and framing proper charges in the cases-Revision petitions were accepted accordingly. [P. 2038] A & B Mr. Muhammad Rafiq Khan Baloch, Advocate for Petitioner. Malik Hamesh Gul Khan, Advocate for the State. Date of hearing: 28th February, 1996. judgment This common judgment shall dispose of Criminal Revisions Nos. 1 and 2 of 1996, as both have arisen out of the same judgment, dated 14-11- 1995 of the learned Sessions Judge, Tank, whereby the criminal appeals were dismissed and orders of conviction passed under sections 13 and 16, Arms Ordinance by the Sub-Divisional Magistrate, Kulachi on 6-4-1995 were upheld. 2. Learned counsel for the petitioners has vehemently argued that according to F.I.R. No. 20, petitioner Muhammad Nasir was allegedly found in possession of a .12 S.B. shotgun with twenty-two live cartridges but there is no mention of cartridges in the charge framed by the trial Court. He submitted that in both the cases challans were put in Court on 6-4-1995 and on the same day they were convicted on the plea of guilt without complying with the mandatory provisions of sections 241-A, 242 and 243, Cr. P.C. and that no show-cause notices were issued to them before their conviction. He lastly submitted that though the learned Appellate Court has taken into consideration that though the mandatory provisions of the aforesaid sections of law were not complied with, yet the point which weighed before it was that, the appeals were barred by time. 3. On contrary, learned counsel for the Sate opposed the aforesaid submissions and supported the impugned orders. 4. I have anxiously considered the respective arguments of the learned counsel for the parties and scrutinized record of the case with their assistance. 5. By not complying with the mandatory provisions of sections 241-A, 242 and 243, Cr. P.C., great injustice has been caused. The charges were also not framed properly. It has been held in PLD 1995 Pesh. 103 that in such-like eventualities, a time-barred appeal can be treated as a revision in order to rectify even error of the trial Court. The accused/petitioner should not have been convicted straightaway on the plea of guilt and the trial Court was required to have given an opportunity to the accused to show cause of the allegations brought against them. In this view of the matter, reference can be made to 1991 PCr. LJ 1709, 1992 PCr. LJ 1575 and 1993 PCr. LJ 1607. 6. For the reasons aforesaid, the impugned orders of the trial Court are liable to be quashed. Accordingly, while accepting both the revision petitions, the order of the Courts below are set aside. The time-barred appeals before the lower Appellate Court are treated as revisions. In this eventuality, the cases should have been remanded to the Appellate Court, but no fruitful purpose will be achieved as the same relief is being granted under section 561-A, Cr. P.C. The case files are, therefore, remitted back to he trial Court with the direction that the mandatory provisions of sections 241-A, 242 and 243, Cr. P.C. should be complied with and proper charge should be framed and, thereafter, to proceed with the cases in accordance with law. The office shall transmit the record back to the trial Court forthwith. (M.A.A.) Revision accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 2038 (DB) Present : SHAH NAWAZ AWAN AND RASHEED AHMED RAZVI, JJ. SADAN and another-Applicants versus STATE-Respondent Criminal Bail Application No. 66 of 1996, decided on 6th March, 1996. Criminal Procedure Code (V of 1898)-- —S. 497-Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4- Control of Narcotic Substances Ordinance (XLVII of 1995), S. 6/8/9- Bail-Huge quantity of opium and Charas was recovered from the possession of accused as well as from the vehicle in which they were going-Manner in which the said vehicle was intercepted on the road required debate regarding implication of S. 103, Cr. P.C.-Question of enmity between the accused and the police could not be decided at bail stage for want of evidence—Bail was declined to accused in circumstances. [P. 2040] A Mr. Moinul Haq Ansari, Advocate for Applicants. Mr. AR. Muhammad Kazi, for the State. order Shahnawaz A. Awan, J.-Sadan son of Muhammad Khan and Zahid son of Habibullah above-named applicants/accused are facing their trail under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, , 1979 read with sections 6/8 and 9 of the Control of Narcotic Substances

Ordinance, 1995, vide F.I.R. bearing No. 112 of 1995 registered at Police Station Jamshoro on 17-10-1995. Bail application filed on their behalf was rejected by the learned Special Judge, Dadu for Control of Narcotics Substance on 6-12-1995. The facts of the case are that complainant Pir Bashir Ahmed Sarhandi, Platoon Commander, University Force, Jamshoro, on 17-10-1995 at 6-20 p.m. at Police Station Jamshoro, received a wireless from Sikandar Ali Mangsi, S.P. to arrive at L.M.C. Octori Post alongwith force, as such Inspector Pir Bashir Ahmed Sarhandi alongwith A.S.I. Rana Jangsher, P.C. Muhammad Saleem P.C. Khursheed Ahmed, P.C. Ghulam Fareed, P.C. ; Ziauddin, P.C. Hoth Khan P.C. Lai Zaib, P.C. Muhammad Ismail, P.C. Rahim Bux, P.C. Amir Hussain P.C. Abdul Sattar, P.C. Majid Hussain P.C. Driver Fazal-ur-Rehman on Government vehicle No. GS-8778 making entry in Roznamcha at No. 6, left his Headquarter at 12-50 p.m., and went to L.M.C. Octori Post where at 1.00 pm.. Sikandar Ali Mangsi, S.P., Kotri arrived and told that he had received spy information that notorious Narcotic Dealer Zahir Shah alongwith his associates from Jamshoro Colony on Suzuki No. U-0911 would take narcotics for sale, as such complainant Inspector Pir Bashir Ahmed was ordered to do Naka Bandi for their arrest. Police party headed by Inspector Pir Bashir Ahmed then did Naka Bandi near Railway Station and at about 1.30 p.m. they saw the said Suzuki coming from Railway "Phatak" on Super High Way . Seeing police two persons got down from Suzuki and ran away in jungle, to whom they identified as Zahir Shah and Muhammad Moosa Pathan. One person jumped down from Suzuki and fell down as such received injury on his left arm. He was caught hold, another person in the Suzuki was also dragged out from Suzuki. The person, who received the injury disclosed his name as Sadan and another disclosed his name as Zahid. Both were arrested and person were searched. From side pocket shirt of accused/appellant namely Sadan one bundle in plastic bag containing Charas was secured and from pocket of waistcoat of Zahid one bundle of opium plastic bag was recovered. Suzuki was searched and from its dash board two bundles of Charas in plastic bag were secured. Chars secured from Sadan weighed one kilogram and opium secured from Zahid weighed one kilogram. Charas secured from dash board of Suzuki weighed two kilograms. From those bundles of Chars and opium 250 grams were taken as samples for sending to Chemical Examiner. From possession of applicant/accused Sadan his National Identity Card and Rs. 180 were also secured. Suzuki was also seized and Mashirnama was prepared on the spot by Inspector Pir Bashir Ahmed Sarhandi in presence of Mashirs A.S.I., Rana Jangsher and P.C. Muhammad Saleem. We have heard the arguments of the learned Advocate for the applicants/accused and the learned Advocate Mr. Abdul Rehman Kazi for the State and have also perused the record of the case. The learned Advocate Mr. Mansoorul Haq Ansar for the applicant contends that there is violation of section 103 of the Code of Criminal Procedure and further that the offence under which the applicants are charged with does not come under the prohibitory clause of section 497, Cr. P.C. and further that the applicants have been falsely implicated in this case due to the enmity with Pir Bashir Ahmed, Commander University Force, Jamshoro as such they are entitled for concession of bail. On the other hand the learned Advocate Mr. Kazi Abdul Rehman for the State has contended that both the applicants are notorious Narcotic Dealers and two persons Zahir Shah and Muhammad Moosa who were accompanying the present applicants are still absconding who managed to get down from the vehicle and ran away towards jungle side, and further that the offence under which applicants are charged with falls under the prohibitory clause of section 497, Cr. P.C., as huge quantity of Charas and opium was recovered from their possession as such they are not entitled for concession of bail more particularly they belong to frontier and they may abscond after getting bail. We have heard both the learned Advocates for the parties and have perused the record of this case. So far as the evidence which flows on the surface of this case is that huge quantity of opium and Charas was recovered orm the possession of both the applicants/accused as well as from the vehicle in which they were going, two co-accused persons managed to run away and still they are absconders. The manner in which vehicle in wh ch accused were oing intercepted on the road require debate regarding implication of section 103, Cr. P.C. Since more than one kilogram of Charas was recovered therefore, offence does not fall under the prohibitory clause of section 497, Cr. P.C. Question of enmity cannot be decided at this stage for want of evidence. More particularly offence of Narcotics are increasing day by day in this country and the money earned from this business is called "black money" and if there is no check by the Courts there will be no end to these kind of offences. Hence this bail application has got no merits which is dismissed accordingly. (M.A.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 2041 (DB) Present: KAMAL MANSUR ALAM AND ABDUL HAMEED DOGAR, JJ. MAZAR and another-Applicants versus STATE-Respondent Criminal Bail Application No. 510 of 1995, decided on 10th April, 1996. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497(2)-Penal Code (XLV of 1860), S. 324/148/149-Bail--Grant of--No overt act had been attributed to accused-Injury to complainant's father attributed only to co-accused-Nature and extent of involvement of accused in the crime yet to be determined at after recording evidence-Me­ dical report was not consistent with the allegations made in the F.I.R.— Case of accused, therefore, was one of further inquiry-One of the accused was even an old and infirm person-Bail was allowed. [P. 2042] A & B Mr Ghulam Muhammad Khan Durrani, Advocate for Applicants. Mr. Abdul Ghafoor Pirzada for Addl. A.G. for the State. Date of hearing: 10.4.1996 order The applicants are facing trial before the Special Judge, S.T.A., Shikarpur in Crime No. 10/95 of Police Station. Tangwani, District Jocobabad registered on 24-1-1995. In the F.I.R. lodged by complainant Shah Nawaz the allegation is that on the night of 24-1-1995 he and his family woke up at about 3.00 a.m., in the night on the barking of dogs and in the electric light saw the applicants and other accused named in the F.I.R. Out of the several accused Rano is said to have given Lalkara to the complainant and then to have fired directly a burst from klashnikov which he was carrying. It is alleged that the burst hit father of the complainant in his left knee and he fell down. Hearing the firing villagers came over and the accused slipped away. The applicants' counsel states that the applicants have been falsely involved due to enmity otherwise no such incident took place. He has also submitted that in so far as applicant Mazar is concerned he is too old and infirm to have been involved in the kind of incident alleged. Further contention is that according to the F.I.R. itself no overtact has been alleged against any of the two applicants. The only shot said to have been fired is attributed to co-accused Rano. Mr. Abdul Ghafoor Pirzada however, opposes the bail application on the ground that the applicants are named in the F.I.R. and that they were members of the unlawful assembly, as such they were vicariously liable for the crime. Applicant's bail application moved before the trial Court having been rejected the applicants have moved this Court. We find from the F.I.R. that no overt act has been attributed to the applicants and it is correct that the allegation of causing injury to complainant's father is attributed only to co-accused Rano. As such the nature and extent of applicants' involvement in the crime is yet to be determined on evidence. That apart we also find inconsistency in the F.I.R. and the medical report. In the F.I.R. injury is said to have been inflicted on the knee of the injured while in the medical report it is shown to have been on the thigh. In the circumstances we consider that applicants' case is that of further inquiry. We may mention that in the case of applicant Mazar and additional ground for grant of bail is his infirmity. We had called applicant Mazar and found him to be quite old. He had tremor in his hands and was unable to B stand straight. He also wear thick glasses. We accordingly grant bail to both the applicants on their furnishing surety in the sum of Rs. 50,000 each and P.R. bond in the like sum to the satisfaction of the trial Court. (M.A.A.) Bail allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 2042 Present: raja abdul Aziz bhatti, J. MUHAMMAD ALI KHAN alias ACHI-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 223/B of 1996, decided on 9th April, 1996. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497-Penal Code (XLV of 1860), S. 302/324/34-Bail—Petitioner allegedly caused a Chhuri blow on the neck of a prosecution witness who came forward to rescue the complainant party from the assault of the accused persons-All the accused had come together from a far off place armed with lethal weapons which they had effectively used in committing the murder of two persons and causing injuries to four persons-Injury sustained by the accused according to Investigating Officer was found to be concocted which fact was supported by evidence on the police file- Motvie for the commission of the crime had been stated in the F.I.R.-Bail was refused. [P. 2043 & 2044] A & B Mr. Razzaq A. Mirza and Sheikh Zamir Hussain, Advocates for the Complainant. Qazi Ahmad Naeem Qureshi, Advocate for the State. order A case F.I.R. No. 392 was registered under sections 302/324/34, P.P.C. at Police Station Banni at the instance of one Muhammad Salheen on 24th of December, 1995, at 8.30 p.m. against three persons namely Muhammad Ali armed with Chhuri, Muhammad Shafiq alias Raja and Ibrar Hussain armed with pistol each. 2. According to the contents of the F.I.R., in this case two persons were done to death and four persons were injured at the hands of the t ccused/assailants. The deceased in this case are Karamat Hussain and Muhammad Khalil. The fatal injury suffered by Karamat Hussain deceased was attributedto Muhammad Shafiq alias Raja whereas grievous injury suffered by Muhammad Khalil deceased was attributed to Ibrar Hussain. As far as the present petitioner is concerned, he was attributed a Chhuri blow on the neck of Umran P.W. who came forward to rescue the complainant party from the assailants. The motive for the alleged commission of crime is stated to be that the accused party dealt in narcotics which was objected to by the complainant party as a result of which the aforesaid incident took place. 3. Learned counsel for the petitioner seeks bail on the grounds that the petitioner has been falsely involved in this case; that there is a crossversion and a writ petition was filed in the High Court for a direction to the police for recording the version of the petitioner's party; that the present petitioner also suffered a grievous injury on his abdomen in the alleged occurrence and he remained admitted in the hospital for a sufficient long time; that the complainant's party suppressed this fact which shows that they were the aggressors. Lastly, learned counsel contends that since only one simple injury is attributed to the petitioner on a person of a P.W., hence he is entitled to bail in the given circumstances. 4. On the other hand, learned State Counsel has opposed the grant of bail to the petitioner on the ground that it is a case of double murder and some persons were injured; that the accused came from a different place probably from a distance one and a half kilometers and they were armed with lethal weapons with which they committed the alleged crime, then as far as the present petitioner is concerned, he was in their company and he allegedly caused a Churri blow on the neck of Umran P.W., who came forward to rescue the complainant's party from the assault of the accused; that the petitioner was also challenged in the hurt case some time back in which he was on bail. At this moment, learned counsel for the petitioner has stated that the facts are not property narrated. According to him, the real fact is that Ibrar Hussain was fired at by Muhammad Shafiq alias Raja and the matter was reported by the present petitioner against him. Learned State Counsel has further stated that later on, the present petitioner was married to the niece of Muhammad Shafiq alias Raja and now they are closely related inter se. Therefore, the sharing of common intention is there; that this occurrence was witnessed by number of persons and the presence of the petitioner was not denied by the other side; that the recovery of Chhuri has been effected from the petitioner which was found blood-stained and sent to the Chemical Examiner. Hence the petitioner is not entitled to bail. 5. I have heard the learned counsel for the parties, perused the record and also gone through the medico-legal reports. Regarding the injury sustained by the present petitioner, the Investigating Officer referred the matter for inquiry to the doctor who gave a different opinion which was altogether different from his earner opinion. According to the Investigating Officer, this injury was concocted which fact was also supported as per evidence on the police file. It is a case of double murder in which all the accused came forward together from a far off place. They were armed with lethal weapons and they effectively used the same in committing the murder of two persons and caused injuries to four persons. The motive for the commission of this crime is also stated in the F.I.R. So far, the petitioner has not filed any private complaint in respect of his injury in any Court as crossversion. After filing the private complaint, if so advised, the accused/petitioner can again apply for the grant of bail to him. But at this stage, he is not entitled to bail. Consequently, his bail petition stands dismissed. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Karachi ) 2044 (DB) Present: muhammad aslam arain and syed haider ali pirzada, JJ. NAZAR MUHAMMAD-Appellant versus STATE-Respondent Criminal Appeal Nos. 153 of 1991 ( Karachi ) and 37 of 1991 ( Hyderabad ), decided on 2nd January, 1992. West Pakistan Arms Ordinance, 1965 (XX of 1965)-- —S. 13-D~Appreciation of evidence-Both the prosecution witnesses who were Police Officers had made contradictory statements on the point of preparation of Mashirnama of arrest of accused and recovery from them and were even belied by the scribe of the Mashir who was examined by the accused in their defence-Trial Court's approach for rejecting defence evidence was unwarranted by law-Arms and ammunition recovered form the accused were neither sealed at the spot, nor were sent to not exhibited in the Court and also were not shown to the accused at the time of recording heir statements under S. 342, Cr. P.C.-Accused were acquitted n circumstances. [Pp. 2049 & 2050] A, B, C & D Mr. S. MadadAli Shah, Advocate for Appellant. Mr. Zubair Qureshi, Advocate for the State. Date of hearing: 2.1.1996 judgment Muhammad Aslam Arain, J.-The appellants in these appeals were separately tried for offence under section 13-D, Arms Ordinance, by the Special Court (T A), Hyderabad, and by two separate judgments, dated 20- 4-1991 they have been convicted and sentenced to suffer R.I. for 3 years each, the trial of both the appellants was conducted separately but since the incident was the same and the evidence is also the same, we propose to dispose of the appeals by a single judgment. 2. The facts in brief are that Muhammad Khan Ranjha S.H.O., Police Station Tando Jam alongwith D.S.P. Nazir Ahmad Jagirani, S.I.P. Ghulam Nabi, H.C. Raza Muhammad and other police officials left Police Station Tando Jam for investigation of Crime Nos. 113 and 114 of 1990 under section 265-A, P.P.C. They reached Police Post Tando Qaiser, from where they took other staff and came near Otaq of one Usman Panwar. At 4- 30 p.m. there was firing from the said Otaq, on which the police party took position and fired in their defence. 8 dacoits succeeded in running away while 2 persons came out from Otaq and surrendered themselves before police alongwith their arms. The said two accused are appellants Shafi Muhammad and Nazar Muhammad. 3. It was the case of the prosecution that from appellant Shafi Muhammad, one kk, 3 magazine loaded with 65 bullets and 35 separate bullets were recovered. From appellant Nazar Muhammad One kk, two magazines, one empty and one loaded with 30 bullets and 60 separate bullets were recovered. Since the two accused had no licence for the said arms, they were arrested by police under Mashirnama, signed by S.I.P. Ghulam Nabi and A.S.I. Ghulam Nabi. They were taken to Police Station Tando Jam, where two separate F.I.Rs. Nos. 118/90 and 117/90 under section 13-D, Arms, Ordinance were registered. After necessary investigation case against appellants were separately challaned in the Special Court (Terrorist Activities), Hyderabad and were tried in Special Cases Nos. 407 of 1990 and 406 of 1990. 4. Charges under section 13-D, Arms Ordinance was framed against the appellants on 27-12-1990 to which they pleaded not guilty. 5. In each case, the prosecution examined P.W. 1 Ghulam Nabi (Exh. 5). He stated that on 21-10-1990, he was S.I.P. Tando Jam Police Station and on that date, D.S.P. Nazir Ahmed Jangirani took him. S.H.O. Ranjha and other staff for investigating of Crime Nos. 113 and 114 of 1990. They left police station at 7.00 a.m. and reached Tando Qaiser of Police Post within 15 minutes. H.C. Haji Khan and others accompanied them. They reached near Usman Panwar's Otaq at 4.30 p.m. There was firing at the police party from the Otaq and police also fired in defence. They saw 8 culprits running away. The police surrounded the Otaq and two persons surrendered alongwith their arms. They arrested accused gave their names as Shafi Muhammad and Nazar Muhammad (appellants in these appeals). The arms secured from the accused were noted down in the Mashirnama Exh. 6 (photostat copy). The other dacotis armed with guns and cartridges were also arrested from one room who gave their names as Muhammad Khan and Achar. The Otaq was searched and two abductes tied on chains were rescued and they gave their names as Khuda Bux and Ibrahim. The Mashirnama of arrest of the appellants, co-accused and the two abductees Khuda Bux and Ibrahim (Exh. 6) was signed by S.I.P. Ghulam Nabi and A.S.I. Ghulam Nabi. P.W. 2. Muhammad Khan Ranjha was the S.H.O. of Police Station Tando Jam and he had accompanied the D.S.P. and other staff for the investigation of Crime Nos. 113 and 114 of 1990. He stated that the police party came to Police Post Tando Qaiser wherefrom other staff was taken and then they all left on foot. When they reached near Usman's Otaq there was firing at the police party who also fired in defence. Two persons with kk and other ammunition surrendered before the police and they are said to be the present appellants. He also stated that Mashirnama (Exh. 6) was prepared by him which was signed by S.I.P. Ghualm Nabi and A.S.I. Ghulam Nabi. He produced the two F.I.Rs. Nos. 118/90 and 117/90 in both the cases separately. The prosecution closed its side vide statement Exh. 9. Statement of appellant Shafi Muhammad under section 342, Cr. P.C. was recorded as Exh. 10 and he denied the allegations against him. He stated that he was arrested from his village in presence of Ghulam Nabi Councillor, Saindad and Jehan Khan. He produced certified copies of depositions of Khuda Bux and Muhammad Ibrahim, the alleged abductees in the main case under sections 307, 149, P.P.C. (State v. Nazeer Muhammad Khatio and others) Exhs. 11 and 12. Certified copy of deposition of H.C. Ghulam Akbar was produced as Exh. 14. He also examined D.W. 1 Saindad Exh. 15, D.W. 2 Jahan Khan Exh. 16 and D.W. 3 P.C. Shamsuddin Exh. 18. In the case against appellant Nazar Muhammad, the prosecution examined the same witnesses S.I.P. Ghulam Nabi and S.H.O. Muhammad Khan Ranjha. Appellant Nazar Muhammad in his statement under section 342, Cr.P.C. denied the allegations against him and satated that he was arrested from his village in presence of Ghulam Nabi, Saindad and Jahan Khan. He also produced certified copies of deposition of Muhammad Ibrahim aiid Khuda Bux in the main case as Exhs. 11 and 12. He also examined D.Ws. Saindad, Jehan Khan and P.C. Shamsuddin as Exhs. 15, 16 and 18. 6. By short judgments, dated 20-4-1991, the learned trial Court separately convicted both the appellants to R.I. for 3 years and the present appeals arise out of the said judgments. 7. Mr. S. Madad Ali Shah, the learned counsel for the appellants, has raised the following contentions before us :-- (a) No independent witness was examined in the case except the two police officials; (b) No independent witness was associated by the police party while they were leaving for investigation of the two crimes eferred to above. The arrest of the accused and recovery is not witnessed by any independent witness of the village and there is thus non-compliance of the provisions of section 103, Cr.P.C. (c) There is material contradiction in the evidence of two police witnesses on the point of preparation of Mashirnama (Exh. 6); (d) The case property was neither produced in Court nor any question was put to accused in their 342, Cr. P.C. statements about the recovery of alleged weapons ; (e) The alleged recovery of arms is joint recovery shown in one Mashirnama Exh. 6, which was not inadmissible in evidence ; (f) The trial Court has not considered defence of the accused and has rejected the evidence of D.Ws. without cogent grounds. It is contended by Mr. S. Madad Ali Shah, the learned Advocate for the appellants except two police officials no independent witness was examined by the prosecution. The two alleged abductees Muhammad Ibrahim and Khuda Bux, who were recovered from the Otaq, were not examined and they were given up by the prosecution, as is evident from the same diary dated 10-2-1991. None from the village was associated and the arrest and recovery therefore, become highly doubtful, he also contended that the two abductees were examined in the main case but they did not support the prosecution in the matter of recovery of unlicensed arms and ammunition from the two appellants. The learned Advocate relied on Dost Muhammad v. The State 1986 SCMR 462, where, the conviction in a case under section 13, Arms Ordinance was based on evidence of three witnesses belonging to the Police Department and no independent public witness was examined. The conviction was set aside by the Honourable Supreme Court. He also placed reliance on Yameen Kumhar v. The State PLD 1990 Kar. 275 and it was observed that where the case of prosecution depends entirely on recovery of arms and ammunition care has to be taken by Court to scrutinise the statement of witness for recovery with caution and the prosecution should also take care to produce independent and reliable witness to prove the recovery. It was also observed that the evidence of Investigating Officer itself cannot be sufficient for the purposes of conviction and his solitary statement in circumstances when he had produced the witnesses to act as Mashirs becomes very doubtful cannot be relied upon to convict the accused. Same view was taken in Niaz Muhammad v. The State 1990 PCr. LJ 331 and Nasir Abbas v. The State 1991 PCr. LJ 1378. It is also contended that there is material contradiction between the evidence of P.W. S.I.P. Ghulam Nabi and S.H.O. Muhammad Khan Ranjha on the point of preparation of Mashirnama Exh. 6 The learned Advocate pointed out to the evidence of S.I.P. Ghulam Nabi who stated that the Mashirnama of arrest and recovery was written by S.H.O. Muhammad Khan Ranjha, while the S.H.O. himself stated that the Mashirnama was dictated by him to P.C. Shamman. In these circumstances, the entire recovery and arrest become highly doubtful. The learned Advocate referred to Niaz Muhammad v. The State 1990 PCr. LJ 331 where it was observed "contradictions in depositions of police officials might be minor in themselves but when taken cumulatively and seen in background of absence of any independent witness, assumed greater significance and vitiate authenticity of prosecution evidence. Reference is also made to Iftikhar Ahmed alias Bobi and another v. The State 1991 PCr. LJ 488 (Federal Shariat Court). It is next contended that the police party consisting of about 30/35 persons were outside the Otaq and no one was injured and thus the whole prosecution story looks improbable. Weapons allegedly secured from accused were not sent to Ballistic Expert to determine whether the same were used or were automatic or semi-automatic weapons. The learned Advocate next contended that joint recovery of allegedly secured weapons and arms was shown in one Mashirnama. The arms were not produced in Court nor exhibited during evidence of the recovery witness. No question was put to the accused with regard to the arms so secured from them. In these circumstances the arrest and recovery becomes highly doubtful. In this respect, reliance is placed on Habibullah Khan and another v. The State 1989 PCr. LJ 1555. The lat contention of the learned Advocate is that the defence evidence was not considered and no reason is shown by the trial Court to disbelieve the same. In support of this contention, reliance is placed on Syed Muhammad Shah v. The State 1991 SCMR 2016 where it was held that merely because a witness was a neighbour of accused would not mean that his evidence could not be relied upon. In these circumstances, the Honourable Supreme Court set aside the conviction under section 30-E, Arms Ordinance. Mr. Zubair Ahmed, the learned Advocate appearing for the State supported the judgment of the trial Court and contended that there was a sudden encounter when independent witness could not have been procured. He however, conceded that on the point of preparation of Mashirnama, Exh. 6, there was a material contradiction as pointed out by appellant's learned counsel. We have heard the learned Advocate at length and gone through the evidence, perused the judgment and case-law referred. It is not clear from evidence as to why the police party headed by D.S.P. Nazir Ahmed Jagirani and Senior Police Officials of Tando Jam Police Station went to a place near Otaq of Usman Panwar." There was no spy information that some gang of dacoits or kidnappers were hiding in the said Otaq. There seems no obvious reason for the police to have gone to the said place. It has also come in evidence that the police party consisted of 30/35 persons and 8 dacoits escaped while two surrendered. It was day time and 8 dacoits quietly escaped, without their being even hurt. If the police had any advance information about the presence of dacoits and some hostages at the Otaq of Usman, a place where the police party went, it was necessary for them to have associated private witness which they have failed to do. The persons namely Muhammad Ibrahim and Khuda Bux were said to have been secured from the Otaq and they were both chained and were probably hostages. These two hostages were given up by the prosecution and were not examined in cases under Arms Ordinance. They have however, been examined in the main case and the certified copies of their depositions were filed by the appellants' their statement under section 342, Cr. P.C. Both these witnesses have not implicated the appellants. The perusal of their statements in the main case clearly leads to an inference that the version of encounter given by the police and arrest of two appellants from the Otaq is totally false. There is material contradiction between the evidence of P.W. Ghulam Nabi and the S.H.O. Muhammad Khan Ranjha on the point of preparation of Mashirnama of arrest and recovery (Exh. 6) P.W. Ghulam Nabi who was S.I.P. Tando Jam stated that the Mashirnama was written by S.H.O., whereas S.H.O. himself stated that it was dictated by him to Mashir P.C. Shamman. The P.C. Shamman whose full name Shamsuddin was examined by appellants in their defence vide Exh. 18 and he has denied to have written the Mashirnama. Thus, the evidence of the two police officials S.I.P. Ghulam Nabi and S.H.O. Muhammad Khan Ranjha, besides being contradictory, is belied by P.C. Shamsuddin alias Shamman. The recovery and arrest of the two appellants in these circumstances become highly doubtful was we rule out the same out of consideration. Three defence witnesses namely Saindad, Jahan Khan and Shamsuddin were examined by the accused who have categorically stated that appellants were arrested from their village. The learned trial Court has rejected the evidence of two defence witnesses Saindad and Jahan Khan with the observation that though they have claimed to be the Nekmards of the village, they did not make any application or representation against the arrest of the accused nor approached higher authority about the so-called illegal arrest of accused. This approach of the trial Court in our view was unwarranted by law. The two defence witnesses were Nekmards of their villages and there was no reason for them to have falsely stated that appellants Nazar Muhammad and Shafi Muhammad were arrested by police from the village. The arms recovered from the two appellants were neither sealed at the spot nor sent to Ballistic Expert for examination. These arms were even not exhibited in the Court. Only P.W. Ghulam Nabi stated in his deposition that "the accused Shafi Muhammad same person in Court. So also property". S.H.O. Ranjha Khan also stated "I challaned accused Shafi Muhammad. He is same person in Court, his klashnikov and ammunition present in Court are same." These arms and ammunitions alleged recovered from the two appellants were not shown to the accused while their statement under section 342, Cr. P.C. was recorded and no question was put to the accused as to whether the arms and ammunitions in Court were the same recovered from them. Another aspect of the case to which we would like to advert is, that D.S.P. Nazir Ahmed Jagirani, who was heading the police party was not examined by the prosecution. No reason is shown for keeping him away during the trial of the accused. The two alleged abductees Muhammad Ibrahim and Khuda Bux, were also not examined in the case under Arms Ordinance. Their evidence in the main case has falsified the entire incident. The prosecution had miserably failed to prove their case against the appellants and the scanty evidence of the two Police Officers was not sufficient to bring home the guilt of the accused. We consider the evidence of recovery and arrest to be highly doubtful particular when there is material contradiction as pointed out earlier. The conviction in these circumstances cannot be sustained. For the reasons stated above we allow the appeals, set aside the conviction/sentences and acquit the appellants. They shall be released forthwith if not required in any other case. (M.A.A.) Appeal accepted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 2050 Present: AHMED SAEED awan, J. JAMSHED BURKE-Petitioner < sn versus JALAL MASIH-Respondent Criminal Miscellaneous No. 433/H of 1996, decided on 22nd April, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491-Habeas corpus petition-Practice and procedure-Controversies are not considered in habeas corpus proceedings, nor entire evidence is recorded as under ordinary substantive and procedural laws civil or criminal and the proceedings are not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention. [P. 2052] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —-S. 491- Custody of minor-Jurisdiction-High Court has jurisdiction under S. 491, Cr. P.C. in the matters pertaining to the custody of minors A«Lamureefficackm ^eeclxandann,mrivM€remedy-. [P. 2052] B (iii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 491--Habeas corpus petition-Custody of minors-Mother of the minor children after having deceitfully removed them from the custody of their father (petitioner) had handed them over to her father (respondent) before proceeding abroad to join her duty-Petitioner being the father of the minors and a well to do person could look after and educate them in the absence of their mother better than the respondent-Respondent was consequently directed to deliver the custody of the minors aged 5 years and 1-1/2 years to the petitioner immediately, [P. 2052] C & D Mr. Muhammad Rasheed Chaudhary Advocate for Petitioner. Malik Sher Bahadur with Jamshed Rehmat Ullah for Respondent. order This petition under section 491, Cr. P.C. is filed by the applicant Jamshed Burke for the recovery of his children Saira Jamshed and Jouathan Jamshed aged 5 years and 1-1-/2 years respectively from the improper custody of the respondent. 2. The applicant was married with Mst. Nargis Jalal daughter of Jalal Masih respondent and out of this wedlock the aforementioned detentus were born. Nargis Jalal is serving as staff nurse in Riyadh Hospital , Saudi Arabia ; eight months ago came to Pakistan alongwith the minors to spend annual vacations and after vacations again proceeded to Saudi Arabia leaving the minors in the custody of the respondent, her father. 3. It is alleged that the detenus were removed from the custody of father by the mother deceitfully and the minors are kept in illegal custody of the respondent as the legal and natural guardian (father) has been deprived of the custody of the minors by improper means. 4. The learned counsel for the respondent at the very outset raised objection that the respondent being grand maternal-father could not be saddled with criminal liability if he refuses to deliver custody of the minor as the custody of minors is not illegal and the application under section 491, Cr. P.C. is not maintainable and relief on case Asif Mowjee v. Mst. Fatima A. Mowjee and another PLD 1987 Kar. 239. 5. The proceedings by way of habeas corpus are proceedings calling upon a person having custody of another person to produce him and demonstrate under what authority he holds him in custody, if the authority s legitimate; the Court cannot interfere as observed in case Mansoor Hussain and another v. Manzoor Hussain PLD 1974 Lahore 202 and followed in case Mst. Haseena v. Mst. Mini and another 1992 MLD 1460. The proceedings by their nature and purpose are summary in character. The contention of learned counsel for the respondent that the Family Court under section 25 of the West Pakistan Family Courts Act (XXXV of 1964) has exclusive jurisdiction for the appointment of guardian of minor and the custody of minors is misconceived as appointment of guardian of minor and the custody of minors is misconceived as appointment of guardian and return of custody are two different things. In proceedings habeas corpus controversies are not considered nor entire evidence is recorded under ordinary substantive and procedural laws, civil or criminal; the proceedings are not intended to go beyond the summary consideration of the question essentially relevant to the alleged detention. 6. It is by now well-settled principle that issue as to guardianship should ordinarily be left to be decided by the Court under the Guardians and Wards Act; but in matters pertaining to the custody of the minors of tender age High Court has got jurisdiction under section 491; Cr. P.C; remedy is more efficacious, speedy and appropriate. 7. Admittedly the alleged detenues were handed over to the respondent by his daughter who had removed the detenues deceitfully from the petitioner's (father) custody and has proceeded to Saudi Arabia to join her duty there; admittedly the petitioner is well to do person and he can look after his kids and educate them better than the respondent; being father, in the absence of mother who is in abroad, will take better care of the children. 8. Having regard to the above circumstances, I direct that the custody of detenues, namely Saira Jamshed and Jouathan Jamshed aged 5 and 1-1-/2 years respectively, be delivered to applicant by the respondent immediately in the Court and respondent is also directed to hand over the passport of the detenues to the petitioner. It will, however, be open to the respondent or the mother of the detenues to seek remedy before a competent Court of law for adjudication of the matter. Disposed of accordingly. (M.A.A.) Petition allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 2052 Present: sh. muhammad zubair, J. SAFIA BIBI-Petitioner versus THE SUPERINTENDENT OF CAMP/CENTRAL JAIL, LAHORE and another-Respondents Criminal Miscellaneous No. 351/H 1996, decided on 21st April, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- —-Ss. 344 & 190(l)(b)-Remand--Trial Magistrate cannot remand an accused under S. 344, Cr. P.C. to judicial custody without first taking cognizance of the case under S. 190(l)(b), Cr. P.C. [P. 2055] A (ii) Criminal Procedure Code, 1898 (V of 1898)- —Ss. 491 & 344-Habeos corpus petition-Illegal detention regularized-- Cognizance of the case had already been taken by the Magistrate and thereafter he passed the remand order in the absence of the accused (detenu)--Detention, if at all illegal, stood regularized by the subsequent remand order passed by Magistrate in the presence of the accused- Detention of accused, therefore, was not illegal-Petition was dismissed accordingly. [Pp. 2055 & 2057] B & E (iii) Criminal Procedure Code, 1898 (V of 1898)- —Ss. 491 & 314-Habeas corpus petition-Illegal detention regularized- Masgistrate had remanded the accused (detenu) to judicial custody without his production before the Court when he had not taken cognizance of the case-Such legal lacuna, however, stood cured by the subsequent remand order because by that time challan had already been submitted in the Court and Magistrate had taken cognizance of the case- Detention of accused being not illegal, petition was dismissed. [P. 2055 & 2057] C & E (iv) Criminal Procedure Code, 1898 (V of 1898)- —S. 491—Jurisdiction—High Court has limited jurisdiction under S. 491, Cr. P.C., that is, to see whether at the time of passing the order the person concerned was in illegal detention or not. [P. 2056] D Kh. Abdul Sami, Advocate for Petitioner. Main M. Bashir, A.A.-G. for the State. judgment Mst. Safia Bibi has filed this petition under section 491, Cr. P.C. praying that the detention of her son Muhammad Arshad in Camp/District Jail, Lahore, be declared to be illegal and he be directed to be released from the detention of respondent No. 1. 2. On 7-4-1996, this Court called for report and parawise comments from respondent No. 1. He was also directed to appear in person on 10-4-1996. On the said date, statements of Nasir Mahmood, respondent No. 1 and Imtiaz Ahmad, Judicial Magistrate were recorded. Thereafter on 17-4- 1996 and 21--4-1996 statements of Abdul Ghaffar, A.S.I. and Tahir Shah, A.S.-I., respectively, were recorded to ascertain the factual position. 3. The facts as gathered from the record and statements, as stated above, are that Muhammad Arshad (hereinafter called the detenu) son of the petitioner was involved in six cases and was lodged in Camp Jail, Lahore, on 1-2-1996. Out of these cases, he was released on bail in four cases and remained as undertial prisoner in two cases, viz. F.I.R. No. 532/95, dated 2.12.1995, under section 392, P.P.C. registered at Police Station Iqbal Town and F.I.R. No. 198/95, dated 21-12-1995, under section 392, P.P.C. registered at Police Station Gulshan Iqbal, Lahore. In F.I.R. No. 532/95, the challan was submitted in the Court on 15-2-1996. the detenu was produced before the Magistrate on 12-3-1996 and he was remanded to judicial custody till 8-4-1996. On 8-4-1996, the detenu was not produced in the Court and the learned Magistrate in his absence granted remand under section 344, Cr. P.C. till 22-4-1996. On 22-4-1996, the detenu was produced before the trial Magistrate and he was remanded to judicial custody till 2-5-1996. In F.I.R. No. 198/95, the detenu was directed to be produced in Court on 25-2-1996. He was not produced on the said date, but the learned Magistrate granted remand on the Robkar in the absence of the detenu till 10-3-1996. Thereafter on the subsequent dates, the police had been producing the detenu in the Court and the learned Magistrate had been granting judicial remand. Ultimately, on 21-4-1996, the learned Magistrate granted judicial remand till 5-5-1996. The challan in this case was submitted in the Court on 14-4-1996. 4. The learned counsel for the petitioner contended that the police has been obtaining remand of the detenu in the two cases from the Executive Magistrate and thereafter due to the non-submission of the challan the learned Magistrate has been ordering the detention of the detenu in judicial custody presumably under section 344, Cr.P.C. It is submitted that the learned Magistrate was not competent to pass the order under section 344, Cr. P.C, without taking cognizance of the case under section 190)(l)(b), Cr. P.C. and as such the detention of the detenu in jail is illegal and improper. It is next contended that the detenu was not produced before the learned Magistrate on 8-4-1996, in case F.I.R. No. 532/95, who authorised his detention in judicial custody till 22-4-1996. He was again produced on 22-4-1996 and the learned Magistrate granted his judicial remand till 2-5-1996. In case F.I.R. No. 198/95, the detenu's detention was authorised by the learned Magistrate from 25-2-1996 to 10-3-1996, without his presence and now on 21-4-1996, he has been remanded to judicial custody till 5-5-1996. It is submitted with vehemence that as the detention of the detenu in case F.I.R. 532/95 from 8-4-1996 to 22-4-1996 and in case F.I.R. No. 198/95, from 25-2-1996 to 10-3-1996 was illegal and without lawful authority, hence his detention could not be legalised by the subsequent orders of remand by the learned Magistrate and the detenu is thus entitled to be released from jail on this score alone. In the alternate, learned counsel submitted that due to this lacuna in the remand orders, the detenu may be admitted to bail. Reliance has been placed in support of this contention on 1985 PCr. LJ 603, Criminal Miscellaneous No. 257/H of 1988, Criminal Miscellaneous No. 241/H of 1987, 1991 PCr. LJ 408, 1984 PCr. LJ 2588, 1992 PCr. LJ 357 and 1993 PCr. LJ 437. 5. The learned Law Officer on the other hand submitted that the detenu was brought from jail in case F.I.R. No. 532/95 on 8-4-1996, for his production before the learned Magistrate, but the police did not produce him before the Court and he was remanded to judicial custody till 22-4-1996. On 22-4-1996, the detenu was produced before the trial Magistrate who remanded him to judicial custody till 2-5-1996. He submitted that as the challan in this case was submitted in the Court on 15-2-1996, hence the illegality, if any, in the remand order dated 8-4-1996, stood cured by his subsequent judicial remand order, dated 22-4-1996, whereby he was remanded to judicial custody till 2-5-1996. With regard to case F.I.R. No. 198/95, he submitted that the non-production of the detenu in Court on 25-2-1996, also stood cured by his subsequent legal judicial remand order, as the challan in this case was submitted on 14-4-1996; hence this petition has become infructuous. He submitted that the case-law relied upon by the learned counsel is not applicable to the facts and circumstances of this case and is distinguishable. 6. I have heard the learned counsel for the parties and have gone though the case-law relied upon by the learned counsel for the petitioner. There is no cavil with this proposition that a trial Magistrate cannot remand an accused under section 344, Cr. P.C. to judicial custody without first taking cognizance of the case under section 190(l)(b), Cr. P.C. However, in case F.I.R. No. 532/95, the cognizance had already been taken by the learned Magistrate on 15-2-1996 and thereafter he passed the remand order on 8-4-1996, in the absence of the detenu. The said order, dated 8-4-1996 of detention, if at all was illegal, stood regularized by the subsequent remand order, dated 22-4-1996 whereby the learned Magistrate remanded the detenu to judicial custody till 2-5-1996; hence the argument of the learned counsel so far as F.I.R. No. 532/95, is concerned, is devoid of force. As to F.I.R. No. 198/95, no doubt, the learned Magistrate remanded the detenu to judicial custody on 25-2-1996, without his production before the Court, when he had not taken cognizance of the case, but the subsequent order, dated 21-4-1996 cured this legal lacuna in the remand order, because by that time, the challan had already been submitted in the Court on 14-4-1996, and the learned Magistrate had taken cognizance of the case. 7. Now, I may advert to the case-law relied upon by the learned counsel. In Criminal Miscellaneous No. 241/H of 1987, Criminal Miscellaneous No. 257/H of 1988, 1985 PCr. LJ 603, 1991 PCr. LJ 408, the accused were in illegal detention even at the time of passing the orders; hence by holding their detention in jail, as unlawful, they were allowed bail. These cases are not applicable to the present case, because at present the detenu is in the legal custody of respondent No. 1. In 1984 PCr. LJ 2588 and 1993 PCr. LJ 437, the accused filed bail applications and the learned Judge deciding those cases after discussing the scope ofsection 344, Cr. P.C., granted them bail, which is not the position in the present case. However, the case reported as 1992 PCr. LJ 357, has some relevance to case F.I.R. No. 198/95, because in this case the challan was submitted on 14-4-1996 and prior to that the learned Magistrate had been remanding the detenu to judicial custody. Even on 25-2-1996, he remanded the detenu to judicial custody without his presence before him. In my opinion, this case-law is not aptly applicable to the present case, because by order dated 21-4-1996, after taking cognizance of the case on 14-4-1996, the learned Magistrate remanded the detenu to judicial custody under section 344, Cr. P.O. till 5-5-1996. 8. The next question which calls for determination is whether in view of the case-law, referred to above, the detenu can be admitted to bail. There is no such bail petition before this Court; hence I am not persuaded to admit the detenu to bail. This is a petition under section 491, Cr. P.C., and for the purpose I have to examine the scope of the section itself. It would be useful to reproduce the relevant provision of section 491, Cr. P.C. which reads :-- "491. Power to issue directions of the nature of habeas corpus.- (1) Any High Court may, whenever it thinks fit, direct-- (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;" The powers of a High Court under section 491, Cr. P.C. are subscribed by the language of the section i.e. at the time of passing of the order, the Court has to see whether the person is under illegal detention or not. In Mool Chand v. The State 49 Cr. LJ 352 (Allahabad), it has been laid down :-- "If at any time before the Court directs the release of the detenu, a valid order directing the detention is produced, the Court cannot direct his release merely on the ground that at some prior stage, there was no valid cause for his detention." Respectfully following the abovementioned case, which is in accordance with the spirit of section 491, Cr. P.C., I may observe that a High Court has limited jurisdiction thereunder, that is, to see whether at the time of passing of the order, the person concerned was in illegal detention or not. In the present case, in F.I.R. No. 198/95, the learned Magistrate took cognizance of the case on 14-4-1996, and on 21-4-1996, remanded the detenu to judicial custody till 5-5-1996. Thus, the legal flaw if any in the earlier remand order stood cured and detention of the detenu being legal, this Court cannot order the release of the detenu under section 491, Cr. P.C. 9. In view of the above discussion, this petition is devoid of any force, it is accordingly dismissed. 10. Before parting with this order, I may observe the section 173, Cr.P.C., provides that every investigation should be completed without unnecessary delay and if it is not completed within fourteen days from the date of recording of the first information report under section 154, Cr. P.C., then the officer-in-charge shall within three days of the expiration of such period, shall forward to the Magistrate concerned through the Public Prosecutor an interim report to enable the Court to proceed with the trial or adjourn the same for reason to be recorded for not doing so. It has been observed in many cases theat this requirement of law is not being complied with by the officers-in-charge of police stations while conducting the investigation and submitting the challan. It creates undue legal complications for the trial Courts for remanding the accused to judicial custody, because under section 344, Cr. P.C., a trial Magistrate could only remand the accused to judicial custody for this further detention, if he has taken cognizance of the case. A copy of this order be sent to the I-G., Punjab, Lahore , that he should issue directions to the station house officers that they should meticulously follow the procedure laid down in section 173, Cr.P.C. to avoid any legal complication in future. He should report the compliance of this order to the Deputy Registrar (Judicial) of this Court within one month without fail. 11. During the hearing of this petition, it also transpired that the detenu was brought from jail on 8-4-1996, in accordance with the requirement of law, for being produced before the Court, but the police attached to Bakhshi Khana did not produce him before the learned Magistrate for obtaining his judicial remand under section 344, Cr. P.C. According to the Law Officer there is regular entry of the departure of the detenu from the jail to the District Courts. A copy of this order be also sent to the District Magistrate, Lahore, to hold a proper enquiry into this matter, as to why the under-trial brought from jail are not being produced before the concerned Courts by the police attached to the Bakhshi Khana. In order to avoid any lapses in future, he should proceed against the delinquent police officials in accordance with law. The action taken in this behalf be intimated to the Deputy Registrar (Judicial) of this Court within two months positively. (M.A.A.) Petition dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 2060 Present: KARAMAT NAZIR BHANDARI, J. MUHAMMAD SAEED alias SHEEDA and others-Petitioners Versus STATE-Respondent Criminal Miscellaneous No. 1733/B of 1994, decided on 17th January, 1995. Criminal Procedure Code, 1898 (V of 1898)- —S. 497-Penal Code (XLV of 1860), S. 324/337-A(i)/337-F(iii)/337-V/34-- Bail~In circumstances of case, the bail would have been allowed to accused but they were using delaying tactics and not permitting the completion of trial for obtaining release on bail-Bail was declined to accused. [Pp. 2060 & 2061] A & B Mr. Muhammad Zafar Shah, Advocate for Petitioners. Mr. Iltaf Ibrahim Oureshi, Advocate for the Complainant. Date of hearing: 17.1.1995. order The four petitioners seek bail after arrest in case F.I.R. No. 142 of 1994, dated 30-3-1994, registered at Police Station, Pakpattan Saddar, under sections 324, 337-AU), 337-F(iii) and 337-V-F, read with section 34, P.P.C. Muhammad Saeed, petitioner, is alleged, to be armed with .12 bore gun and having injured Yousaf on his head by firing, Muhammad Shareef, petitioner, is also alleged to be armed with .12 bore gun and is stated to have caused injury on the leg of Latif, deceased, Jehangir and Talib, accused/petitioners are stated to have been armed with Sotas and have injured Abdul Khaliq. It is stated that F.I.R. was lodged on 30-3-1994 and since then the petitioners are in confinement. 2. By relying on Muhammad Afsar v. The State 1994 SCMR 2051, he learned counsel has rightly pointed out that now the law is that in an ' attempt to kill if some injury is caused, then the offender is liable to the sentence provided for the actual injury caused. He further submitted that keeping in view the nature of injuries none of the petitioners is liable to be punished to death, imprisonment for life or imprisonment for ten years or more. According to the learned counsel, since the case goes out of prohibitory clause, the petitioners are entitled to be bailed out. It is also stated that in an earlier occurrence the complainant party of the present case is an accused of similar offences and they are enjoying the concession of bail. 3. Learned counsel appearing for the complainant has resisted the grant of bail on the ground that not only the challan has been submitted in Court but the actual trial is pending and is being delayed on account of the accused/petitioners. It is pointed out by him that the charge was framed on 23-6-1994 and the case was fixed for recording of prosecution evidence for 13-10-1994, 14-11-1994, 28-11-1994 and 12-12-1994, but on each date was adjourned on account of the accused in spite of the fact that as many as seven prosecution witnesses were available. Ultimately the trial Court recorded the examination-in-chief of the prosecution witness and the case is now pending for cross-examination of the witnesses by the petitioner's counsel. It is vehemently submitted that on account of their own conduct the petitioners are disentitled to the concession of bail. 4. In the circumstances, the petitioners would have been allowed bail by me but for the reasons pointed out by the learned counsel for the complainant. My impression is that the petitioners are not permitting the completion of the trial for obtaining release on bail. It is unfortunate that it is generally the Courts and the system of administration of justice which is blamed for delaying disposal of justice, even though the blame lies on one or the other party. In the circumstances I decline the exercise of my discretion in favour of the petitioners and dismiss this bail petition. 5. It would be in the interest of justice to direct the completion of the trial by 28-2-1995. If the trial is not completed by the date for reasons not attributable to the petitioner's, the petitioners may approach this Court again for the grant of bail. (MA.A.) Bail refused.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 2061 Present: rao naeem hashim khan, J. MUHAMMAD TUFAIL-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 27/B of 1995, decided on 18th January, 1995. Criminal Procedure Code, 1898 (V of 1898)-- —-S. 497(2)-Penal Code (XLV of I860),. S. 409/161—Prevention of Corruption Act (H of 1947), S. 5(2)-Bail-Grant of~Magistrate did not hear the conversation between the accused and the complainant- Whether the alleged bribe amount of Rs. 3,000 was handed over to the accused as advance money in respect of machinery still to be brought or ribe or overcharging needed further probe-Possibility of false involvement of accused cannot be ruled out-Hence accused was admitted to bail. [P. 2063] A Mr. Altaf Ibrahim Qureshi, Advocate for Petitioner. Sh. Abdul Raheem, Advocate for the State. Date of hearing: 18.1.1995. order The petitioner has applied for post-arrest bail in a case registered against him vide F.I.R. No. 194/94, dated 7-12-1994 under section 409/161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 at A.C.E., Multan Region. 2. The prosecution case is that on 7-12-1994 Muhammad Islam, complainant reported to the C.O., A.C.E., Multan Region, Multan that he was the Manager of Khair Enterprises and its owner was Zishan Elahi who used to bring industrial machinery from Lahore for his factory. Whenever the truck loaded with the machinery enters Muhan City, the Octroi Staff osted at the octroi post charges octroi duty not according to the schedule but receives more money and issues receipt for less amount and the amount overcharged is embezzled by them and that on the next day the industrial machinery would be coming in the truck from Lahore and the same charges would be received by the staff of the octroi staff of the Octroi Post, Khanewal Road, M ltan from them and the proceedings be taken against them. As he was not willing to pay the bribe, he had come to make the report. Accordingly the raid was arranged on 8-12-1994 under the supervision of the Magistrate and the Truck No. 7684/SL loaded with machinery belonging to the complainant came at the aforementioned octroi post, Muhammad Tufail accused-petitioner received Rs. 3,000 consisting of six currency notes of the denomination of Rs. 500 each, numbers of which had been noted down by the raiding Magistrate on having been produced by the complainant, who was travelling with the truck driver. The accused-petitioner issued receipt for Rs. 870 and returned Rs. 100 to the complainant and retained an amount of Rs. 2,030 with him as Charagahi. The raiding Magistrate introduced himself to the accused-petitioner and recovered from him the tainted amount of Rs. 2,030. The investigation was completed by the C.O. It was found that the machinery was weighed as 4,875 Kg. which was more than that of the actual weight of the machinery and thus by misusing his official position the accused-petitioner had charged much more dues as octroi duty from the complainant as against one provided in the schedule. He had also deprived the Corporation of its rightful income and committed embezzlement and also deceived the complainant. 3. It is submitted by the learned counsel for the petitioner that the accused-petitioner is innocent and has not committed any offence; that the petitioner has not been named in the F.I.R. Even otherwise if the prosecution case be admitted, on the face of it, no offence under section 161 or under section 409, P.P.C. is made out against the petitioner; that section 09, P.P.C. entails punishment for 10 years. According to the facts and circumstances of the case section 409, P.P.C. is not attracted. Hence the ffence allegedly committed by the petitioner does not fall within the prohibitory clause of section 497, Cr. P.C., that the petitioner is quite 4. On the other hand, contentions raised are opposed by the learned State counsel. 5. I have heard the arguments and gone through the file. The Magistrate did not hear the conversation between the petitioner and the complainant This needs further probing into the matter whether the amount of Rs. 3,000 was handed over to the petitioner as advance money in respect of the machinery which was still to be brought or bribe or overcharging. The possibility of false involvement cannot be ruled out. It is also possible that the complainant might have asked for return of Rs. 100 out of Rs. 3,000 for his personal use. This makes the case doubtful and of further enquiry. This being the position the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 25,000 (Rupees twenty-five thousand only) with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court. | The observations made in the above order shall not affect the merits of the case. (M.A.A.) Petition accepted

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 2063 Present : abdul majid khanzada, J MUHAMMAD SULTAN and 3 others-Applicants versus STATE and another-Respondents Criminal Miscellaneous No. 1321 of 1993, decided on 26th February, 1995. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 506, Part II/34-Criminal Procedure Code (V of 1898), S. 561-A-- Quashing of proceedings-Contentions, that the F.I.R. lodged after an inordinate delay of 27 days only containing vague allegations and not disclosing the commission of any cognizable offence-No evidence whatsoever was available against the accused and the prosecution case was based only on conjectures and surmises-Prosecution had no objection to the quashing of proceedings as the accused were facing the agony of trial for the last more than two years-Proceedings were quashed in circumstances. [Pp. 2064 & 2065] A, B, C & D Mrs. Navin Merchant, Advocate for Applicants. Mr. Habibur Rasheed, Advocate for the State. Date of hearing: 20th February, 1995. judgment This application under section 561-A, Cr.P.C. is filed by the applicants/accused in the Criminal Case No. 303 of 1992 vide F.I.R. No. 469 of 1992 under section 506-B/34, P.P.C. pending in the Court of the learned S.D.M., Civil Lines, Karachi. The brief facts as stated in the F.I.R. are that Ali Hassan, maternal-uncle of the complainant Muhammad Hussain, Constable of Police Lane South, Karachi, expired on 28-6-1992 and it was suspected that he was poisoned and a report was made at Police Station, Gulbahar, Karachi- Central, on 19-9-1992. As such dead body of Ali Hassan was dugged out after 2 months and 23 days and was subjected to post-mortem, which was signed by Medical Board on 14-1-1993 but the cause of death could not be ascertained, however, F.I.R. was lodged under section 302, 147, P.P.C. being F.I.R. No. 27/93 by police Station, Gulbahar, which was challenged in Constitutional Petition No. 55 of 1993 and the case was disposed of on 20-9- 1993 by a Division Bench as S.S.P., C.I.A., reported that the case is false and prior to this F.I.R. a case under section 506-B/34, P.P.C. was also registered being F.I.R. No. 469/92. In between, harassment and criminal litigation continued and a case under sections 107, 117, Cr. P.C. was also registered against them at Police Station Gulbahar. It is further the case of the complainant that on 1-11-1992 he was attacked by the in-laws, who were duly armed with weapons. It is further alleged that the complainant while he was on duty at the bunglow of Liaquat Ali Jatoi, which was vacant, was fired at by the in-laws on 18-11-1992, but he managed to save himself by taking shelter inside the bunglow. I have heard Mrs. Navin Merchant, learned counsel for the applicant, and Mr. Habibur Rasheed, learned counsel for the State, and have also perused the record. The main contention of the learned counsel for the applicants is that the F.I.R. does not disclose the commission of any cognizable offence and there is an inordinate delay of lodging the F.I.R. inasmuch as the offence is alleged to have occurred on 11-11-1992 and the report has been lodged on 8- 12-1992. Learned Advocate has argued that there is vague allegation to the threat of life on the complainant as it is admitted by the prosecution that neither any recovery has been made nor any empty have been recovered of the alleged firing. Learned counsel further contends that the complainant being a police constable is influential person as such he got registered the cases in different police stations with a view to harass the applicants/accused. Learned counsel further contends that the real story is that 0n 11-12 1992 the complainant took away the applicants/accused in a Taxi tearing No. JL 6764 which was on monthly instalments with applicant/accused Iqbal for providing living expenses to Mst. Sayeeda Begum widow of Ali Hassan and another sister and their children who has been abandoned by the brother-in-law of the applicants/accused and at police station the applicants/accused were beaten up badly by police constables on the instigation of the complainant and a false case was registered under section 506-B/34, P.P.C. Further, the applicants/accused were on duty on the date mentioned in the F.I.R. of the alleged offence. Learned counsel has pointed out that during the proceedings of the abovementioned case when the applicants were in jail their brother-in-law, namely, Muhammad Bux and complainant tried to kidnap Mst. Syeeda Begum's son Asif Ali aged about 13 years while he was returning from school and walking through Kalapul. Mst. Sayeeda Begum went to the Police Station, Frere Town to lodge the report of the same. The same was registered and Muhammad Bux was arrested, later on released on bail but the S.H.O. of the said police station showed his inability to arrest the complainant Muhammad Hassan because he was the guard at the bunglow of Liquat Jatoi. Lastly, the learned counsel argued that even if the case of the prosecution is admitted at the face of it, no case is made out against the applicants/accused and there are no reasonable grounds to believe that the applicants/accused have committed the offence as alleged even otherwise the case of the prosecution is based on suspicion and conjectures and surmises which are not maintainable in law, and there is no evidence of whatsoever against the applicants/accused so as to justify their implication in the case and there is not even an iota of evidence to justify their being challenged in the case. Mr. Habibur Rasheed, the learned counsel for the State has no objection to the quashment of the proceedings prayed for as the applicants/accused are facing agony of the trial since 1992. In view of the above facts and circumstances and the objection of the learned counsel for the State, I have quashed the proceedings pending against the applicants before the S.D.M., Civil Lines, Karachi on 20-2-1995 by my short order and these are the reasons for the same. Bail bonds executed by the applicants are discharged. (M.A.A.) Proceedings quashed.

PLJ 1996 Cr PLJ 1996 Cr.c. (Lahore ) 2065 Present: ch. ghulam sarwar, J. MAQSOOD AHMED alias SOODA-Appellant versus STATE-Respondent Criminal Appeal No. 161 of 1991, decided on 23rd April, 1994. Pakistan Penal Code. I860 fXLVof 1860)-- —-Ss. 302 & 304, Part I-Sentence~Challenge to-Appraisal of evidence-­ Vaginal swabs of the deceased lady were found to be stained with semen which supported the defence plea that she had illicit intercourse with the other deceased immediately before her death-Love letter written by her to male deceased was found by the Doctor at the time of her post-mortem examination-During investigation both were found having illicit relations-Accused taking up the plea of having committed the murders of his sister and her paramour under grave and sudden provocation finding them in a compromising position which was even supported by prosecu­ tion evidence and had to be accepted in its entirety under the law when the prosecution version already stood disbelieved-Conviction under S. 302, P.P.C. was altered to S. 304, Part I, P.P.C. and he was sentenced to undergo five years' R.I. in circumstances. [P. 2069 ] A, B & C Dr. Khalid Ranjha and Malik Nazar Farid Khokhar, Advocates for Appellant. Mr. Irshad Ahmad, Advocate for the State. Chaudhry Muhammad Ghani, Advocate for the Complainant. Date of hearing: 23rd April, 1994. judgment Maqsood Ahmad alias Sooda appellant had been tried by the learned Sessions Judge, Gujrat, to face this trial under section 302, P.P.C. for committing double murder ofMst. Shabana Kausar and that of one Ahmad Pervaiz in the area of Village Kullachore Tehsil and District Gujrat on 8-7-1990. Vide judgment, dated 10-2-1991 the appellant was convicted under section 302, P.P.C. and was sentenced to imprisonment for life and a fine of Rs. 30,000 on each count and in default of payment of fine he was to undergo R.I. for one year on each count. Both the sentences had to run concurrently. The appellant was also found entitled to the benefit provided under section 382-B, Cr. P.C. 2. Both the Criminal Appeal No. 161 of 1991 and Criminal Revision No. 267 of 1991 filed by Abdul Aziz complainant for enhancement of the sentence shall be decided through this single judgment. 3. Succinctly stated the case of the prosecution in narrc >v compass as disclosed in the F.I.R. lodged at the instance of Abdul Aziz complainant, real uncle of Ahmad Pervaiz deceased is that on 8-7-1990 at about 1 p.m, the complainant accompanied by Ghulam Hanif P.W. was coming from the house of his brother Abdul Majeed and when they reached at the turn of the lane they heard two fire reports coming from the house of Maqsood Ahmad appellant. In the meantime they saw that Maqsood Ahmad appellant while armed with .12 bore gun came out of this house and ran towards west of the Village Kullachore. Abdul Aziz and Ghulam Hanif followed Maqsood Ahmad and they saw that he, after entering into the Baithak of the complainant, fired two effective shots which hit Ahmad Pervaiz who was busy in studying while sitting on a Palang in the Baithak. The first shot had hit towards inner side of his right wrist and be.low the left shoulder while the second shot had hit below the chest towards the left side. As a result of the injuries sustained by Ahmad Pervaiz he had died at the spot. Apart from Abdul Aziz (P.W. 6) and Ghulam Hanif, the occurrence was also witnessed by Mst. Safia Bibi (P.W. 7) who was sitting in the said Baithak at the time of occurrence. After he occurrence Mst. Bibi, wife of Muhammad Akbar raised hue and cry and on hearing her weeping it transpired that the appellant had first committed the murder of his sister Mst. Shabana Kausar and then committed the murder of Ahmad Pervaiz deceased. -Regarding the motive, it was stated that Maqsood Ahmad appellant had suspicion that his sister Mst. Shabana Kausar had illicit liaison with Ahmad Pervaiz deceased. 4. On the same day at about 2 p.m. Abdul Aziz (P.W. 6) came to Police Station Saddar Jalalpur Jattan where he lodged the F.I.R. Exh. P.K. which was recorded by Abdul Ghafoor S.I./S.H.O. at the police station and then immediately went to the place of occurrence where Ahmed Pervaiz was murdered. He prepared his injury statement Exh. P.M. and inquest report Exh. P.N. He took into possession the blood-stained earth from the Baithak vide memo. Exh. P.R. and book P.I alongwith tw papers P. 9/1-2 and a Palang P. 2 which was blood-stained from the same Baithak vide memo. Exh. P.E. He then went to the place of murder of Mst. habana Kausar and repared her injury statement Exh. P.O. and inquest report Exh. P.Q. He took into possession blood-stained earth vide memo. Exh. P.R. On 15-7-1990 he got prepared the site plans Exh. P.E, and Exh. P.E./l from the draftsman regarding the place of occurrence of Mst. Shabana Kausar. On 18-7-1990 while being arrested the appellant got recovered an unlicensed .12 bore double barrel gun alongwith six live cartridges. He took them into possession vide memo. Exh. P.L. After completion of the investigation he challenged the accused. However, one Mr. Asmatullah Niazi, D.S.P. Saddar Gujrat (P.W. 9) has also partly investigated this case and had found the appellant guilty. 5. Dr. Tahir Saleem, Medical Officer, A.B.S. Hospital Gujrat (P.W. -1) did the post-mortem examination on the dead body of Mst. Shabana Kausar and found the following injuries on her person :— 1. Wound of entry 4x4 c.m. on the front of the upper abdomen at the level of apigastrium. 2. Four wounds of exit .5 x .5 c.m. on the lower half of back of right chest. 3. Excavated wound back of left wrist 5x5 c.m. with under lying fracture of left ulna lower end. In the opinion of the doctor the death had occurred by gun shot projectile perforating the spleen, liver and stomach. Death had occurred within a few minutes after receipt of injury under normal course of nature. Probable time between injures and death was within two minutes and between death and post-mortem it was 16 to 18 hours. On the same day at about 8 a.m. the same doctor did autopsy on the dead body of Ahmad Pervaiz and found the following injures on his person :- 1. Seven fire-arm wounds of entry on the front of left shoulder each measuring Ixl c.m. 2. One fire-arm wound of entry 2x2 c.m. front of left shoulder. 3. One fire-arm wound of entry on the front of left chest, below left nipple. 4. Excavated fire-arm wound on the front of right arm lower part. In the opinion of the doctor the death had occurred by gun shot projectile which perforated the left lung, and the death had occurred within a few minutes. The time between the death and injuries was a few minutes and between death and post-mortem it was 16 to 18 hours. 6. During the trial the appellant pleaded not guilty to the charge and claimed the trial. 7. In order to substantiate its case the prosecution examined 9 witnesses in all including Abdul Aziz (P.W. 6), and Mst. Safia Bibi (P.W. 7) as the eye-witnesses. Dr. Tahir Saleem, M.O. A.B.S. Hospital Gujrat, did post-mortem examinations on both the dead bodies. Abdul Ghafoor, S.I./S.H.O. (P.W. 8) and Asmat Ullah Khan Niazi, D.S.P. (P.W. 9) were examined as the Investigating Officers and the remaining are the formal and recovery witnesses. The learned prosecutor after close of the prosecution evidence tendered in evidence the reports of the Chemical Examiner Exh. P.V., reports of the Technical Service Exhs. P.X. and P.Y. and report of the Serologist Exh. P.Z. to prove the origin of the blood and also that the gun recovered from the appellant was used in crime. 8. When the appellant was confronted with the prosecution evidence in his examination under section 342, Cr. P.C. he took up the plea that he had committed the murder of his sister Mst. Shabana Kausar and Ahmad Pervaiz because he had found them in a compromising position in his own house and it happened under grave and sudden provocation. He explained that he fired at his sister Mst. Shabana Kausar in his own house whereas Ahmad Pervaiz became successful to escape to whom he followed and when he was entering into the house of his uncle, he also fired at him as he had lost his self-control because of the nefarious act of both the deceased. He further explained that on the day of occurrence he and his friends, who used to remain with him as his bodyguard, were present at some distance from his house where from they saw that Ahmad Pervaiz had entered into his house in the absence of his parents. He suspected foul play and while loosing his self-control, he took the gun from his friend and went to his house. After opening the door he found that Ahmad Pervaiz and his sister Mst. Shabana Kausar were in an objectionable position which made him mad and he fired at the deceased persons, as mentioned above. However, he did not opt to appear as his own witness as required under section 340(2), Cr.P.C. and nor he produced any defence evidence. 9. It was contended by the learned counsel for the appellant that admittedly there are two different versions on record as regards the manner in which the alleged crime was committed. The appellant in his statement under section 342, Cr. P.C. has admitted the occurrence but in a manner different from what was stated by the prosecution. It was argued that there is nothing to show that the plea taken by the appellant is not reasonably possible in the given circumstances of this case, and when the prosecution evidence is read as a whole, it is proved that the appellant had acted under grave and sudden provocation but the learned trial Judge miserably failed to appreciate the case in its true perspective. It was further argued that the plea taken up by the appellant is more plausible natural and reasonable so it ought to have been accepted in view of the principle enunciated by the Supreme Court pertaining to safe dispensation of justice in a criminal case. Lastly it was argued that in view of the admitted facts on record the offence against the appellant does not fall under the purview of section 302, P.P.C. but is covered by subsection (1) of section 300, P.P.C. and falls within the ambit of section 304, P.P.C. being one of grave and sudden provocation and in view of this matter the sentence is too severe and harsh. 10. Learned counsel appearing on behalf of the state, however, conceded that from the facts and circumstances of the case the plea of the appellant is more natural and probable which should have been accepted as a whole and the appellant should have been convicted under Part I of section 304, P.P.C. 11. I have given my earnest thoughts to the arguments advanced by both the sides and have also gone through the prosecution evidence with the able assistance of the learned counsel for the appellate. Whenever the plea of self-defence or that of grave and sudden provocation is advanced, the material question worth consideration is always that has the plea of accused been established by any evidence and circumstances on record or to the minimum extent is there any reasonable possibility of the existence of the plea of the accused so that the prosecution case could be doubted. 12. The learned Sessions Judge discounted the defence version and held the appellant guilty of murder. While taking up the prosecution case, he gave a finding that in view of the statements of the P.Ws. both the parties prior to the occurrence were not only on visiting terms but both were related inter se and in view of the parties being related, one could say that no foul play could be expected from Abdul Aziz (P.W. 6) or from Mst. Safia Bibi the $&r&es sad fe<? urrea£ff^2W$g'i£&m%m3i Sa^-^^^f&T^^T prosecution case was proved to its hilt and the defence was that the appellant saw both the deceased in a compromising position and then committed their murder and both the eye-witnesses gave a changed version, was not found on good reasons. He further found that if for the sake of arguments it is believed that Ahmad Pervaiz had developed illicit relations with Mst. Shabana Kausar, then there is no proof of their being in a compromising position at the time of occurrence as no eye-witness to this effect has oeen produced by the appellant except his own statement recorded under section 342, Cr. P.C. He has accepted the presence of Abdul Aziz (P.W. 6) and Mst. Safia Bibi (P.W. 7) in their house or outside in the village as natural and also accepted their version that from the point they were standing they could see he appellant while firing at the deceased. The learned Sessions Judge also found that the prosecution had proved its case beyond any reasonable doubt and he did not accept the defence version on the ground that in the light of the site plan Exh. P.D., the room where Mst. Shabana Kausar was murdered had only one door towards Verandah of the house and another door towards another room situated above the room where Mst. Shabana Kausar was done to death. Had Ahmad Pervaiz been present in the room then there was no question that he could escape himself from the appellant, there being only ' one door which opens towards the Verandah. The learned Sessions Judge was of the view that the situation and circumstances hown in the above site plan force to believe that had Ahmed Pervaiz deceased been present in the house of the appellant, he was not in a position to slip away from the spot; so no one can agree that there might be illicit relations in between Mst. Shabana Kausar and Ahmad Pervaiz on the basis of the love letter P. 9 as there is no direct evidence which could show that Mst. Shabana Kausar and Ahmed Pervaiz were found in compromising position by the appellant. 13. On the other hand while examining the statement of the appellant I have reached to the conclusion that is more plausible, natural and is worth to be relied upon, for that I get support from the fact that the case of the prosecution is that the deceased was studying the book at the time of occurrence but that version appears to be artificial because if the deceased was studying the book then there must have been signs of pellets on the book which was in the hands of the deceased and also there must have been some signs of blood on the same but its examination revealed that it was so clean as if it was never in the hands of the deceased. I am of the view that the aim of introducing this book was that the deceased had not gone towards the house of the appellant and nor he had passed near his house but he was studying in the Baithak of his uncle Abdul Aziz P.W. .6. This story of the prosecution cannot be believed because if the deceased had to study his book, he could study the same in this own house. Moreover, it appears from the statement of Abdul Aziz P.W. 6 that the deceased had come from Rawalpindi to his village to perform Eid-ul-Azha, which was celebrated a day or two before the present occurrence. It cannot be expected that a student who came from Rawalpindi to his village for celebrating Eid, he would remain busy for studying his books. 14. Another important aspect is that Mst. Safia Bibi P.W. 7 states that there was an interval of only two minutes in the noise of the first fire shot heard by her and the fire shots relating to the murder of Ahmad Pervaiz. If this portion of the statement of Mst. Safia Bibi P.W. 7 is believed then certainly it would come out that just at the time of occurrence Ahmad Pervaiz deceased either came out of the house of the appellant or he just passed near to his house. Even no shoes of the deceased was found in the Baithak at the time of arrival of the appellant because there is not mention of shoes in the inquest report nor there is any mention of the book, as mentioned in the inquest report despite the fact that it was stated by Abdul Aziz P.W. 6 that the deceased was wearing Hawai Chappal at that time. The absence of Hawai Chappal forced to believe that the deceased had come in the Baithak while running from any side. Another fact that highlighted by learned counsel for the appellant which makes the version of the prosecution as doubtful and that of the defence as more plausible is the medical evidence with regard to Mst. Shabana Kausar deceased. According to the Medical Officer (P.W. 1) he had taken the vaginal swabs of the deceased which were sent to the office of the Chemical Examiner and those had been found as ^ stained with semen, as per report Exh. P.C., which speaks nothing but supports the defence plea that she had an illicit intercourse with Ahmad s ervaiz deceased immediately before her death. Love letter P. 9 found by the doctor at the time of post-mortem examination of Mst. Shahbana Kausar written by her to Ahmad Pervaiz which fact also supports the chain of the defence plea and the prosecution has not been able to negate this. I also find that both the Investigating Officers P.W. 8 and P.W. 9 have deposed that the investigations conducted by them revealed that both the murders were result of the illicit relations of both the deceased inter se and this motive was not disputed by any villagers throughout the investigating and the appellant after his arrest came up with the plea of grave and sudden provocation while disclosing that pn the day of occurrence he had found both the deceased in a compromising position. Abdul Ghafoor P.W. 8 further states that the plea of the appellant was even corroborated by Mst. Bibi and Khalid Pervaiz through their statements and during the whole investigating their version could not be countered by any one. 15. In my view the above facts are sufficient to hold that the appellant had found his sister and Ahmad Pervaiz in a compromising position. Learned counsel appearing on behalf of the State frankly conceded that he could not support the conclusion of the learned Sessions Judge in so far as he discounted the plea of grave and sudden provocation and convicted the appellant under section 302, P.P.C. 16. This brings me to the question as to what should be the appropriate sentence to meet the ends of justice in this case. On the one hand, I am quite cognizant of the fact that both the deceased were brutally done to death by the appellant On the other hand, I cannot be oblivious to the fact that the deceased were caught while engaged in an act which was revolting to all sense of decency and morality, known to the society particularly the Muslim society. In the instant case it is true that there is no evidence that the deceased were engaged in the sexual intercourse when the appellant surprised them, but as discussed above, I have disbelieved rosecution version so under the law the statement of the accused has to be accepted in its entirety. The act in which the deceased were engaged was not less obnoxious to and in principle it should not make any difference whether the victim of the crime were engaged in love making preparatory to fornication or in the actual act of fornication. 17. For the foregoing reasons, I partly accept the appeal and alter the conviction of the appellant from one under section 302, P.P.C. to that of Part I of section 304, P.P.C. and sentence him to five years' R.I. (M.A.A.) Order accordingly.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Lahore ) 2072 (DB) Present : RASHID Aziz khan and nasira iqbal, JJ. GHULAM MUHAMMAD-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 2 in Criminal Appeal No. 73 of 1994, decided 27th March, 1995. Criminal Procedure Code, 1898 (V of 1898)-- — S. 426--Penal Code (XLV of 1860), S. 302-Suspension of sentence- According to his discharge certificate from Army accused was 91 years old and he would certainly be old and infirm-Accused was also not alleged any overt act qua the deceased-Sentence was suspended in circumstances and he was released on bail. [P. 2072] A & B Mr. M.A. Zafar, Advocate for Petitioner. Mr. Abdul RaufFarooq, Advocate for the State. order Ghulam Muhammad petitioner seeks suspension of sentence. He was tried alongwith others by Sessions Judge, Jhelum, who vide his judgement, dated 15-6-1994 convicted him under section 302, P.P.C. and sentenced to imprisonment for life with a fine of Rs. 30,000. Suspension of sentence is being sought on old age. According to the discharge certificate from Army, petitioner's age is 91 years, which certainly would be old and infirm. We have noticed that the petitioner was not alleged any overt act qua the deceased. In these circumstances, we feel it is case for suspension of sentence. Therefore, the application is allowed. Sentence of the petitioner (Ghulam Muhammad) is suspended provided he furnishes security in the sum of Rs. 30,000 (Rupees thirty thousand only) with two sureties, each in the like amount, to the satisfaction of Assistant Commissioner/Duty Magistrate, Jhelum . (M.A.A.) Petition accepted

PLJ 1996 Cr PLJ 1996 Cr. C. (Peshawar) 2073 Present: jawaid nawaz khan gandapur, J. STATE-Appellant versus MUHAMMAD KHAN and others-Respondents Criminal Appeal No. 33 of 1996, decided on 27th March, 1996. Criminal Procedure Code, 1898 (V of 1898)- —S. 417(1) Explosive Substances Act, 1908 (XI of 1908)-Ss. 3 & 4--Appeal against acquittal-No one named in FIR~Respondents and seven others charged for offence, by complainant, after 23/24 days—PWs did not allege to have seen Respondents keeping Bomb in "Garage" or in any way participating in crime-There was no way out for trial court but to acquit respondents-Having no merits appeal dismissed in limine. [Pp. 2073 & 2074] A & B Mr. Hamid Saeed Malik, Addl. A.-G. for the State. Date of hearing: 27-3-1996. judgment This appeal has been preferred under section 417, Cr.P.C. against the judgment of the learned Sessions Judge Zila Qazi/Special Judge, Chitral, dated 17-10-1995, whereby the accused-respondents, involved in case F.I.R. No. 43, dated 5-10-1989 under section 3/4 of the Explosive Substances Act registered in Police Station Ayun Chitral, were acquitted. 2. The complainant in this case is P.W. 7 Zahir Shah who, in his report, stated that at 7-30 he was proceeding towards Chitral alongwith 8/9 persons and went inside the Garage to start the motor-car when an explosion occurred which injured Muhammad Karim, Shah Wall and Abdul Jalil etc. 3, It la to be noted that in the F.l.R. do one was held responsible for the offence and it was on 28-10-1989 i.e. after 23/24 days of the occurrence that the present accused-respondents, alongwith seven others, were charged for the offence. The material evidence in the case consists of the statement of the complainant himself, P.W. Muhammad Karim and P.W. Shah Wall. The complainant charged the accused-respondents and others after more than 20 days and could not disclose the source of implicating the accused. The statement of the other witness Muhammad Karim is also of no help to the prosecution as he has not given ocular account of the incident and simply stated that a month prior to the occurrence he and his brother had gone to attend a dinner hosted by Rehmat Wakil Shah accused and on return he was informed by his brother that Rehmat Wakil Shah and Muhammad Khan have planned his murder and therefore, he would report against them. The statement of P.W. Shah Wali is also irrelevant as he has not alleged to have seen the accused either keeping Bomb in the Garage or in anyway participating to commit the crime. In nutshell there is no eye-witness to the occurrence and, therefore, there was no way out for the learned trial Court but to acquit the accused including the present accused-respondents. It is curious to note that Rozi Khan accused-respondent No. 2 has all along in the judgment been described as absconder and against whom perpetual warrant of arrest has been issued but it was still thought proper to file the appeal against him. It appears that this aspect of the case was inadvertently overlooked. There is no merit in the appeal which is dismissed in limine. (M.A.A.) Appeal dismissed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Karachi) 2074 (DB) Present : kamal mansur alam and abdul hameed dogar, JJ ABDUL GHAFOOR and others-Applicants versus STATE-Respondent Bail Application No. 443 of 1995, decided on 23rd January, 1996. Criminal Procedure Code, 1898 (V of 1898)-- — S. 497 (2)--Pakistan Penal Code, I860, S. 353/324/149~Bail~Grant of--In exchange of fire with deadly weapons like klashnikov not a single person injured, even vehicle parked on road was not hit-Hard to believe that five armed persons were encircled by just six policemen and they surrendered so easily without making an attempt to escape when their weapons were still loaded-Case requires further enquiry—Bail was allowed. [P. 2075] A Mr. Gul Bahar Komi, Advocate for Applicants. Mr. Abdul Ghani Shaikh, Addl. A.-G. for the State. Applicants were arrested in Crime No. 86/95 of Police Station Mirpur Mathelo, District Ghotki lodged by A.S.I. Abdul Samad Bullo of Police Post Dad Leghari alleging that on 23-4-1995 he alongwith five other police personnel were on patrol duty on private vehicle and when they •-- reached at Bridge of Kanderi Shaikh they saw in the vehicle's light five armed persons on the road, of whom one had klashnikov the other had rifle, one had revolver and two were armed with S.B. shot gun. One of these signalled the police vehicle to stop whereupon the police stopped the vehicle and informed the accused persons about their identity and required them to surrender. The five armed persons however, started firing at the police which was returned by the police too. This firing continued for half an hour whereafter the five persons surrendered to the police and were arrested, the weapons and the ammunitions were secured from them, they were taken to the Mirpur Mathelo Police Station where they were locked up. Bail application was earlier moved before the Special Judge (S.T.A.) Sukkur Division at Khairpur which having been rejected, the applicants have approached this Court. The applicant's counsel submits that the applicants have been falsely involved in the case due to political reasons and that the entire F.I.R. is false. He points out that it is unbelievable that in half an honour of exchange of firing between the police party and the applicants not a single person from their side was injured. The Additional Advocate-General opposes the bail application as according to him the applicants were arrested at the place of occurrence and arms and ammunition had been recovered from them and therefore, there " was no ground for enlarging them on bail. It is indeed surprising that where there was exchange of fire with deadly weapons like klashnikov not a single person received injury and even the vehicle which was parked on the road was not hit. It is also hard to believe that five armed men were encircled by just six policemen and they surrendered so easily without making any attempt to escape all the more when their weapons were still loaded, as would appear from the F.I.R. Having regard to these factors we consider this to be a case of fiirtner enquiry. Accordingly we enlarge the applicants on bail on their furnishing surety in the sum of Rs. 1,00,000 each and P.R. bon in the like sum to the satisfaction of the trial Court. (M.A.A.) Bail granted.

PLJ 1996 Cr PLJ 1996 Cr. C. ( Karachi ) 2076 Present: agha saif-ud-din khan, J. RIAZ-Appellant versus STATE-Respondent ' Criminal Appeal No. 4 of 1995, decided on 18th April, 1996. Pakistan Penal Code, 1860 (XLV of 1860)-- —S. 302~Sindh Children Act, 1995 (XIV of 1995)--S. 68(2)~Appreciation of -» Evidence-Prosecution witnesses are related inter se and they have not ~" disclosed motive of murder-Confesion recorded by Magistrate suffered from legal infirmities i.e. same has not been signed by Magistrate nor he appended requisite wrtificate as required under Section 364 Cr.P.C., nor he has remanded accused to judicial custody, neither he disclosed in his own handwriting that he was First Class Magistrate, so confession was ruled out of consideration-Gun and cartridges recovered after a period of two years and four months were not sent to Ballistic Expert, and same Gun and Cartridges were not available in the court at the time of examination of Mashir hence Ballistic Expert's report was inadmissible- Admittedly accused was below 15 years at the time of incidence so he should have been tried by Sindh Children Act, 1995, hence his conviction r is un-warranted under law-Giving benefit of doubt accused was acquitted. [Pp. 2080 & 2081] A, B, C & E <ii) Pakistan Penal Code, 1860 (XLV of I860)- —S. 302-Benefit of doubt-Even single circumstance creating a reasonable doubt is sufficient to entitle an accused to acquittal. [P. 2081] D Mr. Rasool Bux Palejo, Advocate for Applicant. Mr, Issardas, A.A.-G. for the State. Date of hearing: 28th March, 1996. judgment By judgment dated 7th February, 1995 learned Sessions Judge, Dadu in Sessions Case No. 244 of 1989, appellant Riaz son of Shamasuddin Chandio has been convicted under section 302, P.P.C. and sentenced him to undergo life imprisonment and to pay fine of Rs. 50,000. In case of default to suffer R.I. for two years more and also to pay compensation of Rs. one lac to the heirs of deceased Mst. Amiran under section 544-A, Cr.P.C., in default to suffer RJ. for six months more. Being aggrieved the appellant has filed the present appeal. 2. I have heard the argument at length of Mr. Rasool Bux Palejo learned counsel for the appellant and Mr. Issardas learned counsel for the State. With the assistance of the learned counsel. I have gone through the record. 3. F.I.R. No. 54 of 1989 was lodged in this case by complainant Muhammad Umar on 7-4-1989 at Police Station Mehar as Exh. P.I. that his wife's sister deceased Mst. Amiran was married with his relative Ali Gohar. Appellant Riaz nephew of Ali Gohar suspected Mst. Amiran to have illicit terms with Munib Ali and appellant had expressed that he would kill Mst. Amiran. On 7-4-1989 at about 11-00 a.m. complainant Muhammad Umar, P.W. Ah' Hyder and P.W. Gul Muhammad were standing at Government ditch (pond) near their village and Mst. Amiran was washing the clothes and in their presence appellant came armed with gun from northern side and threatened them not to come as he would kill Mst. Amiran and with intention to commit murder, appellant Riaz fired straight gun shot at Mst. Amiran, who received the gunshot injuries and fell down. Complainant and P.Ws. gave Hakal to appellant Riaz, who threatened them not to approach him, otherwise they would be killed. Due to fear they did not go near to appellant Riaz who with gun ran away towards South. On fire report other villagers also came and they saw that deceased Mst. Amiran had gunshot injuries on her back and abdomen and she was unconscious. The complainant then narrated the facts of the incident to the villagers and removed the injured Mst. Amiran on the jeep of Syed Abdul Hussain Shah to Taluka Hospital, Mehar where she succumbed to her injuries. Leaving dead body of Mst. Amiran in Taluka Hospital, Mehar complainant then went to Police Station Mehar and lodged F.I.R. 4. After completion of investigation by Investigating Officer Muhammad Bakar, A.S.I., the appellant was sent up for trial. Charge under section 302, P.P.C. was framed on 7-8-1991 by the trial Court, to which appellant pleaded not guilty and claimed trial. During the trial, prosecution examined namely complainant Muhammad Umar as Exh. 6, P.W. Ali Hyder as Exh. 7, P.W. Gul Muhammad as Exh. 8, P.W. Muhammad Uris (Mashir) as Exh. 9, who produced Mashirnama of dead body of Mst. Amiran as Exh. 4, inquest report as Exh. P.5, Mashirnama of Wardat as Exh. P. 6, Mashirnama of arrest of accused as Exh. P. 7 and Mashirnama of recovery of gun as Exh. P. 8, P.W.Dr. Wazir Ahmed as Exh. 10, P.W. P.C. corpse-bearer Mumtaz Ali as Exh. 11, P.W. Allah Bachayo Chandio; Mukhtiarkar and F.C.M., Mehar as Exh. 13, who produced confession as Exh. P. 10, P.W. Head Constable Abdul Rehman as Exh. 16, who was examined in place of Investigating Officer Muhammad Bakar, A.S.I., who had expired, P.W. Muhammad Ishaque Tapedar as Exh. 25 was also examined. 5. Statement of appellant was recorded under section 342, Cr.P.C. as Exh. 23, in which he has denied the allegations of murdering of Mst. Amiran, but has said in question No. 10 that "I have been implicated in this case due to enmity and I was below 16 years at the time of incident. I will state other facts at the time of my statement on oath". 6. The appellant examined himself on oath as Exh. 28 that deceased Mst. Amiran was wife of his maternal-uncle Ali Gohar. She had illicit terms with Muhib Ali. Gul Muhammad and Ali Gohar had killed her due to that. Gul Muhammad is married to cousin of the deceased. Both Gul Muhammad and Ali Gohar were arrested by Police and detained at the police station for some period. Then they were released by paying some consideration to police. He was arrested by police after about 8 days under the influence of Wadero Mahboob Ali Khan. P.W. Gul Muhammad had demanded the hand of his sister Mst. Irshad from his father who had declined to this demand, therefore, he has been got falsely implicated by the said P.W. Gul Muhammad and Ali Gohar and Wadero Mahboob Ali, who all are related inter se. 7. In support of the present appeal, Mr. Rasool Bux Palejo learned counsel for the appellant has raised following contentions :— (a) That the prosecution has failed to prove the motive. Failure has reacted upon the validity of the prosecution story and has rendered it highly unreliable of credit in a case of a capital offence. (b) There is violation of section 164, Cr.P.C. as the same has not been attested by the Magistrate. (c) The ballistic report of expert be ruled out of consideration, as gun and cartridge were sent to ballistic expert after lapse of 2 years and 4 months. (d) That the appellant was below 15 years at the time of incident, so he should have been tried under Sindh Children Act. 8. Learned counsel has cited cases-laws, Habibullah and others v. The State PLD 1969 SC 127, Mazhar Mir v. State 1991 PCr. LJ 454, Gulzar and 4 others v. State 1976 PCr.LJ 419, Bhai Khan and 3 others v. State 1988 PCr. LJ 1836, Ghulam Hussain and 2 others v. State 1980 PCr. LJ 685, Ata Muhammad and another v. State 1995 SCMR 599 and Muhammad Shati and another v. The State PLD 1993 Lah. 345. 9. It has been noted that the incident has taken place on 7-4-1989 at 11-00 a.m. and complainant Muhammad Umar as Exh. 6 has deposed that he alongwith P.Ws. Ali Hyder, Gul Muhammad and Muhammad Uris had gone to the pond near their village for taking bath for Juma prayers, and the deceased Mst. Amiran was also washing clothes nearby in the same pond. He has said that the appellant Riaz came armed with gun and fired one shot at Mst. Amiran who sustained injuries and fell down. That appellant hreatened the complainant party not to come near. This witness has admitted in his cross-examination that Ali Gohar is his Maroot and he is alive and P.W. Ali Hyder is Masat of Ali Gohar and P.W. Gul Muhammad is married with the sister of Mst. Amiran. He has also admitted that appellant had declared to him 5/6 days prior to the incident that he would murder Mst. Amiran, but he did not inform the police about this, neither he informed Ali Gohar the husband of the deceased woman. 10. P.W. Ali Hyder in his deposition as Exh. 7 and P.W. Gul Muhammad as Exh. 8 have supported the complainant versions that they were standing at the pond for taking bath when appellant came armed with gun and fired at the deceased and killed her, but all the above three prosecution witnesses are silent about the motive of the murder as to why the appellant killed the deceased, but they have admitted that the witnesses are related inter se and that P.W. Muhammad Uris as Exh. 9 Mashir in the case is also their cousin. P.W. Doctor Wazir Ahmed in his deposition as Exh. 10 has said that he found two punctured type of wound on the body of the deceased Mst. Amiran one on her back as wound of entry and one contused punctured type of wound on the front of left lumber region being the wound of exit caused by a fire-arm injury and that deceased must have been fired from a distance of about 3 to 5 feet. Prosecution has also examined P.W. Allah Bachayo Chandio, Mukhtiarkar and F.C.M., Mehar as Exh. 13, who had recorded the alleged confession of the appellant as Exh. P. 10, but has admitted in his cross-examination as under :— "I have not mentioned in the confession in my own hand that the accused was remanded to judicial custody. I have not appended requisite certificate under section 364, Cr.P.C. at the end of the confession nor have I signed the 1st and fourth page of the confession. I have not mentioned in my own hand that I have disclosed to the accused that I was the First Class Magistrate. I had asked the father's name and residence of the accused, but I have not mentioned it at the first page. It is mentioned on the last page, which does not bear my signature." 11. P.W. H.C. Abdul Rehman was examined as Exh. 16 as Investigating Officer Muhammad Bakar, A.S.I. was dead and he identified his signatures on F.I.R. as Exh. P.I, but he admitted in his crossexamination that P.W. Ali Hyder and P.W. Gul Muhammad have not stated in 161, Cr.P.C. statements before A.S.I. Muhammad Bakar that they had gone to the pond for taking bath. 12. However, I find force in the contentions advanced on behalf of the appellant that all the prosecution witnesses are related inter se and they have not disclosed the "motive" of the murder of deceased Mst. Amiran by the appellant and also that confession recorded by the learned Mukhtiarkar and F.C.M., Mehar of the appellant dated 16-4-1989 suffer from infirmities and the same has not been signed by the learned Magistrate nor he has appended the requisite certificate under section 364, Cr.P.C. nor he has remanded the appellant to judicial custody after recording the alleged confession neither he has disclosed in his own handwriting that he was First Class Magistrate, which makes the confession irrelevant and is ruled out of consideration. 13. It is pertinent to note that the alleged gun and cartridge recovered from the appellant on 16-4-1989, but the same was sent to Ballistic Expert after lapse of two years and four months and that alleged gun and cartridge was not available in the Court when the Mashir P.W. Muhammad Uris was examined, which makes the report of Ballistic Expert inadmissible in evidence for sustaining the conviction of the appellant. 14. I am surprised that learned trial Court has not referred the appellant to the Civil Surgeon to ascertain his age when appellant has disclosed in his statement under section 342, Cr.P.C. that he was below 16 years of age at the time of incident, so that appellant could be tried under Sindh Children Act, 1955. 15. Mr. Issardas learned counsel for the State has very candidly conceded that appellant on the day of incident i.e. 7-4-1989 was below 15 years of age as his date of birth has shown in school leaving certificate was 8-8-1974 and the appellant should have been tried under Sindh Children Act, 1955, hence the conviction is unwarranted under the law. 16. I am not impressed by the evidence of complainant and his eye­ witnesses, who are all related and have suppressed the "motive" of the murder of deceased Mst. Amiran. And that police have also not recovered any towel or loin cloths from the prosecution witnesses to corroborate the version of complainant that they were taking bath at the pond when Mst. Amiran was murdered. Moreover it is against the Balochi tradition that male member will take bath in a public place in presence of woman-folk, which makes the presence of prosecution witnesses in the pond at the time of alleged murder of deceased Mst. Amiran, very doubtful. 17. It is not necessary under the law that there should be several circumstances to create a doubt about the prosecution case. Even one circumstance which creates a reasonable doubt is sufficient to entitle the accused to an acquittal. 18. In view of the aforesaid contradictions and infirmities in the prosecution case, a doubt is created as to whether the appellant is guilty of charge. The benefit of doubt is given to the appellant. 19. As a result, Criminal Appeal No. 4 of 1995 is allowed and the „ appellant is acquitted from the charge. It is directed that the appellant be released forthwith if not required in any other cane. (M.A.A.) Appeal allowed.

PLJ 1996 Cr PLJ 1996 Cr. C. (Lahore) 2082 Present: arif iqbal hussain bhatti, J MUBASHIR alias GOGA-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 5396/B of 1996, decided on 21st May, 1996. Criminal Procedure Code, 1898 (V of 1898)-- —S. 497--Pakistan Penal Code, 1860, S. 302/109-Bail before arrest-Record showing that all male family members were involved in the case having been found innocent were got discharged-Superintendent of Police after investigation reported that not a single independent witness had supported prosecution-P.Ws in their statements recorded under Section 164 Cr.P.C. and in affidavit not naming petitioner as accused, but implicating an unknown motorcyclist for the same-Presence of complainant and P.W. at the place of occurrence not established-Motiv is very old and far fetched-Case of further inquiry-Interim Bail confirmed. [Pp. 208 & 2086] A, B & C Mr. Ghulam Bari Saleemi and Ch. Ghulam Hussain, Advocates for Petitioner. Mr. R.A Awan, Advocate for the Complainant. Mr. Tasneem Amin, Advocate for the State. order Mubashar accused/petitioner has applied for pre-arrest bail in case F.I.R. No. 80/95, dated 22-6-1995 offences under section 302/109, P.P.C., Police Station Chuhang, Lahore. 2. F.I.R. was lodged by Anwar All, complainant on the same day at 7-30 p.m. The complainant briefly alleged in the F.I.R. that he was resident of village Manowal. On 22-6-1995 at 6-00 p.m. he, Muhammad Arshad and Mukhtar Ahmad P.Ws. were present at the shop of Noor Muhammad, situated in village Manowal. Noor Muhammad shopkeeper was not present. Munawar AH his brother arrived in the Chowk on a tractor. In the meantime, Mubashar son of Manzoor Hussain came on a motor-cycle and stopped the same in front of the tractor. Mubashar fired two shots with .12 bore gun at Munawar Ali. The fire hit the face, temporal region, shoulder and hands. Munawar Ali succumbed to the injuries. The accused left his motor-cycle on the spot and ran away on foot. It was alleged that the accused committed the offence in consultation with his brother Asad, his father Manzoor Hussain, uncle Pervaiz and grandfather Haider Ali. The motive stated was that 40/45 years ago complainant party was involved in the murder of great grandfather of Mubashar accused. It was further alleged that in 1990 the accused fired at the complainant and a case was registered against him. During investigation, the Investigating Officer recorded the statements of Ghulam Ali and Muhammad Ali. These witnesses in their statements stated that few days prior to the occurrence all the accused were present in front of their under-construction house, near the village and they conspired to kill the deceased. The investigation was transferred to Mubashar Ahmad, S.P., Lahore. The said S.P. conducted thorough investigation about all the important aspect of the case. 3. Asad, Pervaiz, Manzoor and Haider Ali applied for bail before arrest in this Court vide Criminal Miscellaneous No. 3232/B of 1995. The said accused was granted bail vide detailed order on 17-8-1995. Learned counsel for the petitioner, inter alia, submitted that Muhammad Yar, Investigating Officer/S.H.O., Police Station Chuhang was a close friend and Pir Bhai of the complainant. He in connivance with the complainant party involved all the family members i.e. grandfather , father, uncle and brother of the petitioner in the case. Hundreds of residents of the village and the area protested against the false implication of the petitioner and his family members in the case but the Investigating Officer refused to listen to them. Consequently, D.I.-G., Lahore transferred the investigation of the case to a senior Police Officer i.e. Mubashar Ahmad, S.P., Lahore. The learned counsel, inter alia, submitted that the motive alleged is far-fetched and too old for the commission of the offence. The grandfather, father and uncle of the petitioner did not take the revenge for more than 40 years. There was no immediate incident or cause between the parties which could motivate the petitioner to commit the offence. The complainant fabricated false and ridiculous evidence of Ghulam Ali and Muhammad Ali regarding consultation and conspiracy of the murder by all the accused. The statements of these two witnesses were reported by the said S.P: as false and fabricated and he directed the S.H.O. to get Haider Ali etc. accused discharged from the case. The order of discharge, dated 3-9-1995 has been annexed herewith. On these grounds, the bail of Haider Ali etc. was confirmed by this Court. 4. Learned counsel further submitted that the arch-witness in the case i.e. Noor Muhammad the shopkeeper and Muhammad Arshad P.W. named in the F.I.R. appeared before the Magistrate and got recorded their statements under section 164, Cr.P.C. The copies of their applications, and statements have been placed on record as Annexures "C", "C/I" and "D/I". Affidavit of Muhammad Arshad has also been annexed as Annexure "E". Noor Muhammad in his statement "D/I" stated that at the time of occurrence he was present at his shop. Muhammad Arshad P.W. was also sitting on the platform (Tharra) of the shop. Munawar Ali deceased arrived at a tractor while unknown motor-cyclist also came there. A dispute with regard to the right of way arose between them. The unknown person thereafter fired two shots at Munawar Ali and he died at the spot. Unknown accused left his motor-cycle at the spot and made good his escape. The accused was all alone and was not resident of the locality but the witness would be able to identify him, if he was produced before him. Muhammad Arshad P.W. stated in his statement "C/I", that on 22-6-1995 at 6-00 p.m. he was sitting at the shop of Noor Muhammad. Noor Muhammad was also present there. Munawar Ali deceased came there on a tractor. From the opposite side a motor-cyclist also arrived. Regarding the right of passage, a dispute cropped up between them. The motor-cyclist had a gun, which he fired twice at Munawar Ali. Munawar Ali died at the spot. The accused left his motorcycle and made good his escape. TL? accused was all alone. He did not name the petitioner in his statement. Learned counsel submitted that Muhammad Arshad during investigation by the S.P. admitted that Noor Muhammad was present at the shop. These two witnesses did not mention the presence of Anwar Ali complainant and Mukhtar P.Ws. Mubashar Ahmad, S.P. also reported that from the circumstances and evidence available it was clear that the complainant and the witnesses mentioned in the F.I.R. were not present at the spot and did not see the occurrence. The complainant came to spot later on and named his nephew Mukhtar Ahmad and his cousin Muhammad Arshad as eye-witnesses in the case. Learned counsel has referred to the note of inspection of the spot by the S.H.O. wherein he reported that the dead body was lying on the seat of the tractor. Learned counsel submitted that this important aspect supports the contention that the complainant and the eye-witnesses came to the spot much later. Had they been present at the spot, they could have intervened between the parties with regard to a petty dispute on the right of way between the motor-cyclist, and Munawar Ali. Even after being injured, if the witnesses were present, they could have taken care of the deceased, put hia» on some cot or taken to him for immediate medical treatment etc. Learned counsel further submitted that no person from the place of occurrence came forward during series of investigations conducted by different Police Officers who could claim to have seen the occurrence. The two persons who came forward were Muhammad Arshad and Noor Muhammad Shopkeepers who have clearly exonerated the petitioner from the commission of the offence. Learned counsel further submitted that motor-cycle No. 2653-LNW recovered from the spot belongs to one Muhammad Aslam son of Nazir Khan. He was serving as a driver/Niak with Lt.-Col. Zegham Islam. He stated before the Investigating Officer that on 12-6-1995 his motor-cycle was borrowed by his friend Muhammad Aslam son of Ghulam Qadir but the same was not returned to him. The role of Muhammad Aslam son of Ghulam Qadir in the commission of offence has been significantly highlighted by the S.P. (Mubashar Ahmad). The said S.P. directed the S.H.O. to trace out the said person and associate him in the investigation so that important links in the commission of the offence could be tracted out. The Police Officers did not attach much importance to this vital aspect of the case. Learned counsel for the petitioner finally submitted that in the circumstances narrated above, Noor Muhammad and Muhammad Arshad were the only witnesses present at the shop and saw the occurrence. According to their statements they had not seen the petitioner nor they named him as an accused in their statements mentioned above. Learned counsel pointed out that this case has peculiar features in which as stated above almost all the family members were falsely involved in the case, therefore, there can be no allegation of abscondence against the petitioner. The petitioner's co-accused i.e. grandfather, father and other continuously joined the investigation on petitioner's behalf. After the investigation conducted by S.P., Lahore the petitioner immediately surrendered before the Court, remained on interim bail and joined investigation of the case. Being innocent there was no question of the recovery of weapon of offence from him. Learned counsel relied on Miran Bakhsh's case reported in PLD 1989 SC 347 and State v. Mukhtar Awan reported in 1991 SCMR 322. Learned counsel prays for confirmation of the bail on the aforesaid grounds. 5. Learned counsel for the complainant has opposed the grant of bail to the petitioner. He, inter alia, submitted that the petitioner was named in the F.I.R. as the main accused who fired his gun and as a result of the same Munawar Ali died at the spot. Further submitted that case was not fit for the grant of bail before-arrest and relied on PLD 1984 SC 192 and PLD 1994 SC 133. 6. I have heard the learned counsel for the parties at great length and have perused the record. From the tentative assessment of the evidence available on record it is clear that all the family members i.e. grandfather, father, uncle, brother and petitioner were involved in the case. The evidence f two witnesses in support of consultation/conspiracy was reported as fake and fabricated against all the co-accused of the petitioner. They were declared innocent and were got discharged in the case. S.P. Mubashar Ahmad after investigation reported that not a single independent person came in support of the prosecution case. It is significant that the witnesses claim to be present at the shop of Noor Muhammad but his presence was intentionally omitted by the complainant. During the investigation by the said S.P. Muhammad Arshad P.W. stated that Noor Muhammad was present in his shop. Muhammad Arshad P.W. of the F.I.R. and Noor Muhammad shopkeeper in their statements under section 164, Cr.P.C. and the supporting affidavit of Muhammad Arshad P.W. attached with the petitioner, asserted that they were the eye-witnesses of the occurrence and both of them did not name the petitioner as the accused. They further stated that it was a sudden or between the deceased and an unknown motor-cyclist regarding the right of passage which ultimately resulted into the ugly incident and the death of deceased at the hand of the motor-cyclist. These two witnesses did not mention the presence of Anwar Ali, complainant and Mukhtar Ahmad P.W. at the time of incident. Mubashar Ahmad, S.P. has also doubted the presence of the complainant and Mukhtar Ahmad at the time of occurrence. There is another important circumstance of the case which gives strength to the inference. The Investigating Officer reported in the spot inspection report that the dead body was lying on the seat of the tractor. Had the P.Ws. been present there, they would have immediately looked after Munawar Ali who was injured and would have placed him on a cot or taken steps for his immediate medical treatment. The motive for the commission of offence is also very old and far-fetched. The incident reported in 1990 was later on patched up between the parties and the complainant did not pursue the case, therefore, it was consigned to the record room. The two authorities cited by the complainant are based on different facts and are not relevant to the present case. The principles laid down in PLD 1989 SC 347 and 1991 SCMR 322 are applicable to the facts and circumstances of the present case. 7. In view of what has been stated above, the petitioner's case is one for further inquiry. Interim bail granted to him is hereby confirmed. He shall furnish fresh bail bonds in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of A.C./Ilaqa Magistrate, 'Lahore. The observations given above are purely for the disposal of this petition for bail and shall not affect the merits of the ease at the time of trial. (M.A.A.) Petition accepted.

PLJ 1996 Cr PLJ 1996 Cr.C. ( Lahore ) 2087 Present : ahmad saeed awan, J MUHAMMAD SALEEM-Petitioner versus STATE-Respondent Criminal Miscellaneous No. 1274/M of 1995 in Criminal Appeal No. 364 of 1984, decided on 8th May, 1996. (i) Criminal Procedure Code, 1898 (V of 1898)-- -—S. 382-B-Benefit of Section 382-B-Order extending benefit of S. 382-B Cr.P.C. to convict does not amount to either alteration of judgment or review of same. [P. 2088] A (ii) Criminal Procedure Code, 1898 (V of 1898)-- —S. 382-B-Paksitan Penal Code, 1860, S. 302-Conviction and sentence upheld by Supreme Court-Neither trial court nor High Court pointed out any circumstance which would justify denial of extention of benefit of Section 382-B Cr.P.C.-Benefit was granted in the circumstances [P. 2088] B & C Ch. Muhammad Anawr Dholan, Advocate for the State. order The petitioner Muhammad Saleem son of Umar Din was tried on a charge under section 302, P.P.C. in case F.I.R. No. 112/82, dated 31-3-1982 registered with Police Station Karaoke for the murder of Safdar Hussain and the trial Court vide judgment, dated 15th February, 1984 convicted him under section 302, P.P.C. and sentenced him to life imprisonment plus fine; on appeal, his conviction was maintained by the learned Single Judge of the Lahore High Court and petition for leave to appeal before the Supreme Court was also dismissed. 2. The trial Court as well as the learned Single Judge of the High Court; while maintaining conviction and sentence did not allow the benefit of section 382-B, Cr.P.C. to the petitioner; hence the petitioner has moved an application through Jail that benefit of section 382-B, Cr.P.C. for the period 1-4-1982 to 15-2-1984 be extended to him to which he is entitled under the law. 3. The learned counsel for the State contended that benefit of section 382-B, Cr.P.C. at this stage could not be extended in the presence of earlier pronouncement made by the High Court as well by the Supreme Court wherein the benefit of section 382-B, Cr.P.C. has not been extended to the petitioner. 4. In case Liaqat Ali v. The State PLD 1995 SC 485 while elaborating section 382-B, Cr.P.C,; their Lordships observed that "it is quite clear from the language of section 382-B, Cr.P.C. that while passing sentence of imprisonment on an accused for an offence; the trial Court is bound to take into consideration the period if any during which the accused was detained in custody for such offence. 5. In case Anyad and another v. The State 1992 SCMR 2072 the trial Court; like case in hand had omitted to extend the benefit of section 382-B, Cr.P.C. without noticing any features in the case justifying such denial to the ccused; the Supreme Court extended the benefit of section 382-B, Cr.P.C. though the appeal was dismissed. 6. Similarly in case reported as Qadir and another v. The State PLD 1991 SC 1065, it was held that even in case where the accused is sentenced for imprisonment for life the provision of section 382, Cr.P.C. are also applicable. 7. The contention of the learned counsel for the State that benefit of section 382-B, Cr.P.C. at this stage could not be extended in the presence of superior Court's judgment is misconceived as such an order extending enefit of section 382-B, Cr.P.C. to convict is neither alteration of the judgment nor reviewing the same; such orders in fact are passed under section 561-A, Cr.P.C. to give effect to the legal preposition in view of the dictum laid down by their Lordships in case Muhammad Rafique v. The State 1995 SCMR 1525; wherein giving principles as to how the sentencing ourt can give effect to the legislative intent expressed in words "shall take into consideration in section 382-B, Cr.P.C." observed; where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercised, that power ought to be exercised and the Court will require it to be exercised. 8. It was also observed in case Qadir and another v. The State PLD 1991 SC 893 that the provisions being mandatory makes no distinction whether sentence to be passed is for imprisonment for life or for a shorter eriod; the benefit granted to an accused that the period during which he was detained in custody shall be taken into consideration need not be whittled down. 9. In the present case, I find that neither the trial Court nor the learned Judge of the High Court pointed out any circumstance which would justify the denial of extention of benefit of section, 382-B, Cr.P.C. to the petitioner. 10. In the circumstances, discussed above, the prayer is granted and the petitioner be given benefit of section 3823J, Cr.P.C. The Jail Authorities are directed to make necessary computation in this benefit without any further delay. (M.A.A.) Petition accepted The End

PLJ 1996 (Karachi) 1 (DB) PLJ 1996 (Karachi) 1 (DB) (Circuit Bench, Larkana) Present: abdul majeed khanzada and shah nawaz awan, JJ. IMDAD HUSSAIN-Petitioner versus P.O. SINDH and others-Respondents Const. Petition No. D-121 of 1995, dismissed on 27-9-1995. Constitution of Pakistan, 1973-- —Art--199 read with Criminal Procedure Code, 1898 (V of 1898) Section 154--Criminal case-Registration of second F.I.R.-Prayer for--Grievance of petitioner is that S.H.O. Ratodero Police Station was one of culprits and he did not record correct and complete version of complainant in FIR in order to give protection to real culprits—Held : Once a case is registered in respect of an offence, then ordinarily registration.of a second F.I.R. notwithstanding divergent version contained therein, is not called for, inasmuch as ball has already been set rolling and police is under a statutoiy duty to trace real culprits after proper investigation in accordance with law-Petition dismissed. [P. 2] A 1994 M.L.D. 1736 rel. » Mr. Ghulam Qadir Jatoi, Advocate for Petitioner. Mr. Muhammad Bachal Tunia, A.A.G. for Respondents. Date of hearing: 27-9-1995. judgment Abdul Majeed Khanzada, J.-This petition under Article 199 of the Constitution of the IsLmic Republic of Pakistan of 1973 has been filed by one Itndad Hussain, praying therein that the respondent Nos. '-\ or 4 i.e. S.H.O. Ratudero Police Station or Inspector C.I.A l.urkana respectively be directed to register his second F.I.R. and investigate it in accordance with law. Mr. Ghulam Qadir Jatoi, advocate for the petitioner, contended i.liat one Aligul and Mujahid were murdered and the petitioner lodged F.I.R. No. 88/95 at P.S. Ratodero on 24.6.1995 when he came to know of the murder of his uncle Aligul. His grievance is that since the S.H.O Ratodero was one of the culprits, he did not record the correct and complete version of the complainant in the above F.I.R., in order to give protection to real culprits. So he wants that above direction be given to the above said authorities to register second F.I.R. of the petitioner in respect of the same incident Mr. Jatoi argued that there is no embargo on registration of the second F.I.R. uf the same offence. He relied upon the ease reported in 1995 P.Cr. L.J. 1239 and 1989 P.Cr. L.J. 1945. Mr, Muhammad Bachal Tunio, A.A.G. opposed the request of the petitioner and argued that since the F.I.R. of the crime is already registered and in case he is not satisfied with the contents of the F.I.R. or the investigation, he may file a direct complaint, which is an adequate remedy available to him. We have applied our mind 'o the circumstances of the case and the law cited before us, and we are of the considered view that once a case is registered in respect of an offence, then ordinarily registration of a second F.I.II. notwithstanding divergent version contained therein, is not called for. inasmuch as the ball has already been set rolling and police is under a statutory duty to trace the real culprits after proper investigation in accordance with law. Reference is made to a case, Dilbar Hussain & Others vs. Riasat Javed Bajwc, S.H.O. Ferozewalla & Others, reported in 1994 ML.D 1736. In view of the above circumstances, we do not find any force in the instant petition as such it is dismissed in-limine. (M.K.R.) Petition dis-nissed.

PLJ 1996 Karachi 3 (DB) PLJ 1996 Karachi 3 (DB) Present: salahuddin mirza and agha rafiq ahmed khan, JJ. PAKISTAN HERALD LIMITED-Petitioner versus INSPECTING ASSISTANT COMMISSIONER AND CHAIRMAN, PANEL - 02, COMPANIES III KARACHI and another-Respondents Cost. Petitions No. D -199, D - 200, D - 201 and D - 202 of 1990, accepted on 20.9.1995. Income Tax Ordinance, 1979 (Act XXXI of 1979)-- —-S. 34-A and S. 65--Assessment--Reopening of-Challenge to—Whether notice under Section 65 can be issued-Question of-Petitioner did not conceal any material fact while submitting its assessment for assessment year 1984-85 and I.T.O by taking into consideration agreement had decided that it was not hit by Section 34-A of Ordinance and it amounts to a change of opinion if it is now held that Section 34-A had annulled agreement and while fresh assessments may' be made on this basis, it can not be used to re-open assessment under Section 65 as absolutely no fresh material or evidence has come before 'assessing authority-Held: Notice issued under Section 65 of Income Tax Ordinance has been issued without lawful authority and is of no legal effect—Petitions accepted. , [P. 8] A Mr. Rehan Hasan Naqvi, Advocate for Petitioner. Mr. Shaik Haider, Advocate for Respondents. Date of hearing: 17-8-1995. judgment Salahuddin Mirza, J.--The petitioner is a Public Limited Company engaged in the printing and publishing of Newspapers and periodicals, including the daily Dawn. On 4th April 1968 the petitioner entered into an agreement with a private limited company M/s Matri Publications (Pvt) Ltd., which was publishing daily Huriyat, whereunder the management, policy and financial control of daily Hurriyat was taken over by the petitioner and the profits earned by daily Hurriyat were to be shared by the petitioner and M/s Matri Publications in the ratio of 60 : 40 but if the paper suffered losses, they were to be exclusively borne by the petitioner. The agreement is annexure 'B-l'. 2. In the subsequent years the daily Hurriyat suffered losses which were borne by the petitioner and shown as such in the income-tax returns and this loss was accepted by the Income-tax Department either at the initial stage or on appeal. The assessment of the petitioner for the assessment year 1984-85 was passed by the I.T.O. under Section 62 of the Income Tax Ordinance in December 1985 but on 16.8.1989 the Inspecting Assistant Commissioner (Respondent No. 1) issued notice to the petitioner under Section 65 of the Ordinance reopening assessment for the year 1984- 85 on the ground that the losses of M/s Matri Publications could not be shown as losses of the petitioner-company. The losses were also not allowed for the Assessment year 1988-89 against which the petitioner filed appeal before the Commissioner of Income Tax, Appeals-Ill Karachi. During the pendency of this appeal, action under the notice under Section 65 in respect of the assessment for the year 1984-85 was stayed but the said appeal has now been dismissed on 14-1-1990 and stay of proceedings under Section 65 stands vacated. Hence this petition which was filed on 4-3-1990 against the said notice dated 16-8-1989 under Section 65 of Income Tax Ordinance. It is contended that there is no concealment of any fact on" the part of the petitioner and no new material has come before respondent No. 1 to re-open the assessment for the assessment year 1984-85. 3. The respondents have filed counter-affidavit. According to them Notice under Section 65 has been issued on the basis of "definite information received by the Department" subsequent- to the making of the original assessment in the relevant year. It is also their case that Section 34-A of the Income Tax Ordinance (which was inserted through Finance Act 1980) directly applied to the Agreement between the petitioner and M/s Matrj Publications but the income tax authorities, mislead by their earlier decisions for the period when Section 34-A did not exist, ignored this provision and did not apply it and this mistake came to light when the assessment for the year 1988-89 was being finalised and therefore notice under Section 65 was issued at that stage. 4. Learned counsel of the petitioner has argued thai the agreement between the petitioner and M/s Matri Publications was accepted by the respondents and was acted upon by them as would appear from the original assessment order by the I.T.O. in respect of the income year ending 30-6-1984 (Assessment year 1984-85) at page 3 whereof 60% of the income of Hurriyat is added to the income of the petitioner and the Department could not change its opinion in this regard and in the absence of any new evidence, notice under Section 65 could not be sustained. In support of this view he has relied upon the following reported judgments : 1. (1989) 59 Tax 115 (H.C. Kar) Car Tunes versus Income Tax Officer. 2. (1990) 61 Tax 20 (H.C. Kar) Jeson International (Put) Ltd. Vs. Income Tax Officer 3. (1990 01 Tax 46 (S.C. Pak) Arfnt V/oolen Mills Ltd. Vs. Income Tax Officer. 4. (1990) 61 Tax 105 (S. C. Pak) Edulji Dinshaw Limited Vs. Income Tax Officer. 5. The gist of the above-noted judgments is that where assessment is finalised by the I.T.O. in accordance with law, it can not be re-opened on the ground that the I.T.O. on a second thought has changed his opinion on the iactual or legal aspect of the case or that a successor in office Lakes a diffe :ent view of the material considered by his predecessor. According to the learned counsel of the petitioner, legal aspect as to whether the agreement between the petitioner and M/s Matri Publications was or was not governed by Section 34-A of the Ordinance had been determined by the I.T.O. and when he acted upon the agreement he impliedly held that the agreement was valid and was not hit by Section 34-A and decision on this point cannot be • re-opened under Section 65. On the other hand, the view of the Department is that the agreement became void and inoperative after the incorporation of Section 34-A into the Ordinance and there is no finding of the I.T.O. on the point as to whether the Agreement was hit by Section 34-A, that, this point was neither discussed nor taken into consideration by the I.T.O. at the time of assessing the petitioner and therefore there is no question of change of opinion and consequently the above judgments are not applicable. Learned counsel of the respondent has relied upon the following judgments in support of his arguments. 1. (1975) 31 Tax 89 (S.C.) Pakistan Oil Mills Vs. The Sales Tax Officers. 2. 1993 S.C.M.R. 1232 M/s Central Insurance Co. Vs. The Central Board of Revenue. 3. 1940 (8) I.T.R. 44 (Privy Council) Commissioner of Income Tax Bengal Vs M/s Maliliram Ramjidas. 4. 1985 P.T.D. 465 M/s Burhan Engineering Co. Vs. Income Tax Officer. 6. Most of these judgments are in respect of Section 30 (1 -A) of the Repealed Income Tax Act 1922 which is analogous to Section 65 of the Income Tax Ordinance 1979 and the ratio of these cases has been summarised in the above-noted last judgment in which in para-8 it is observed as follows: " Para " 8. From the above-cited cases the following principles of law are deducible :- (i) That by the use of the words "reason to believe" in Section 34 (1-A) of the Act, the legislature intended that the belief must be based upon reasonable grounds and not on mere suspicion, gossip and rumour. (ii) That the expression "reason to believe" does not mean a purely subjecting satisfaction on the part of the Income-tax Officer but the reason must be held in good faith and cannot be a mere pretence. (iii) That it is open to the Court to examine whether the reasons for the formation of the belief have a rational connection with or a relevant bearing on the formation of the belief and are not extraneous or irrelevant for the purpose. (iv) That before an Income-Tax Officer issues a statutory notice under Section 34 (1) (a), he must have reason to believe that by reason or omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for the years in question, income, profits or gains chargeable to income-tax have escaped assessment during those years. (v) That the notice of the Income-tax Officer under Section 34 (1-A) would be without jurisdiction if the reason for his belief that the conditions are satisfied, does not exist or is not material or relevant to the belief required by the Section. (vi) That before issuing a notice under Section 34 it is not necessary to hold a quasi-judicial enquiiy but there should be material before the Income-tax Officer on the basis of which an honest and reasonable officer can form the opinion that there has been escapement of assessment. (vii) That once it is shown to the Court there exists reasonable grounds for the Income-tax Officer to form the belief that there has been escapement of the income from the levy of tax, that would be sufficient to clothe him with jurisdiction to issue notice and the Court would not go into the question whether the grounds are sufficient or not nor it would go into the question of sufficiency of the reasons for the belief. (viii)That a notice under Section 34 of the Act need not contain the reasons or the material on the basis of which the Income-tax Officer formed the opinion that there is a reason to believe that the income, profits or gains chargeable to income have escaped assessment during the relevant years. (ix) That an assessee against whom a notice under Section 34 of the Act is issued is not entitled in law at the stage of investigation to see the material on the basis of which the notice was issued or belief was formed but once the Income-tax Officer decides to act upon certain material for re-opening the assessment, the assessee is entitled to be confronted with the material to be used against him and is also entitled to an opportunity to explain and to place material in rebuttal to the above material to be used against him by the Income-tax Officer. (x) That in a case falling within the ambit of the second part of the proviso to subsection (1) of Section 34 of the Act, the Income- Tax Officer cannot initiate proceedings under the above subsection capriciously and without any reason as the proviso is itself subordinate to that above remain subsection. (xi) That since Section 34 is not the charging Section but deals merely with the machineiy of assessment, the construction should be preferred which makes the machineiy workable, (ut res valeatpotius quampereat). 1. The factual position, however, is that no new material or evidence has come before the I.T.O., averment to that effect in para "3-A" of counter-affidavit of respondent No. 1 notwithstanding. There was no concealment of any fact by the petitioner and the return filed by it clearly showed the losses of M/s Matri Publciations. And in this regard the observations in the case of the Central Insurance Company 1993 SCMR 1232), on which learned counsel of the respondent had relied, are veiy pertinent and are quoted below: "If an assessee discloses all the material facts without any concealment and the assessment has been consciously completed by the I.T.O., in such a case, in the absence of discoveiy of any new fact, which can be treated as "definite information", there cannot be any scope for re-opening the assessment under Section 65." 8. Now, it is true that an agreement is void and illegal if it violates any law, as insisted upon by learned counsel of the respondents. If Section 34-A renders the agreement annexure B-l void and illegal, it would have no value in the eye of law. with effect from the date on which Section 34-A was incorporated in the Income Tax Ordinance (which date presumably is 1st July 1980) and the profits 'or losses of M/s Matri Publications, may not be incorporated in the assessments of the petitioner from that date onward tut this is no ground to reopen the assessments under Section 65. When the petitioner was originally assessed, it must be presumed that the I.T.O. took into consideration Section 34-A and came to the conclusion, albeit incorrectly... that the agreement was not rendered void due to the incorporation of Section 34-A in the Ordinance even though assessment orders did not say so. If now it is concluded that the agreement had become void since the incorporation of Section 34-A into the Ordinance, it is decidedly a change of opinion on the basis of the same material and in view of the law laid down in (1989) 59 Tax X 115 (H.C. Karachi) and other judgments relied upon by the learned counsel of the appellant, as well in view of 1993 S.C.M.R. 1232 which was referred to us by learned counsel of the respondents, assessment cannot be reopened under Section 65. It could have been re-opened only if some additional material had come before the assessing authority. Section 65 cannot be suffered to be used by the assessing authorities as a sword of Damocles hanging on the heads of the assesses However, every assessment year is different and independent and the assessing authority may treat the agreement as void in view of Section 34-A while making assessment for any subsequent assessment year in which case the petitioner shall be at liberty to challenge such decision in accordance with law. 9. In short, we are of the view that the petitioner did not conceal any material fact while submitting its assessment for the assessment year 1984-85 and the I.T.O. by taking into consideration the agreement annexure B-l, had decided that it was not hit by Section 34-A of the Ordinance and it amounts to a change of opinion if it is now held that Section 34-A had annulled the agreement and while fresh assessments may be made on this basis, it cannot be used to re-open the assessment under Section 65 as absolutely no fresh material or evidence has come before the assessing authority. We would, therefore, declare the notice dated 16-8-1989 under Section 65 of Income Tax Ordinance (annexure 'A') as having been issued without lawful authority and therefore of no legal effect. There is no order as to costs. (M.K.R.) Petitions Accepted.

PLJ 1996 Karachi 8 (DB) PLJ 1996 Karachi 8 (DB) Present: WAJIHUDDIN AHMAD & GHULAM HAIDER LAKHO, JJ. SINDH INDUSTRIAL TRADING ESTATES LTD. and 3 others-Appellants versus NOORANI ENTERPRISES-Respondent - C.M.A No. 32 of 1995, in HCA 155 of 1994, dismissed on 9.8.1995 Civil Procedure Code, 1908 (Act V of 1908)- -—O.XLIII, R. 3-Failure to serve notice under 0. XLIII, R. 3, CPC on opposite party before filing appeal against interim order during pendency of suit-Whether issuance of notice was mandatoiy and Whether noncompliance of provision of law detrimental and appeal liable to dismissal- Questions of-Failure to satisfy requirement of prescribed notice in Rule. 3 of Order XLIII CPC, in appropriate cases, may be visited by dismissal of appeal whereas in like manner where justice of case so requires, party in default may be relieved of pains of dismissal by according adequate dispensation in way of costs or otherwise because costs, have been held to be panacea for all civil wrongs—In urgent cases appellate forum need not wait for service and may act on its mere issuance—Serious cases where appellate court comes to conclusion that omission or avoidance is deliberate, calculated to extract undue advantage by circumventing requirement of law, may entail penalties of dismissal-Held: Conditionalities of Rule. G of Order XLIII CPC appear to have been substantially complied with in this case and no mala fides have been shown-C.M.A. dismissed. [P. 14 to 16]A, B & C Mr. S. A Samad Khan, Advocate for Appellants. Mr. Mansoorul Arfin, Advocate for Respondent. Date of hearing : 9.8.1995. order Wajihuddin Ahmad, J.-This is a High Court Appeal also at times described as an Intra Court Appeal. Such appeal may either be directed against a final order or judgment or even to challenge what may be termed as an interim or interlocutory order. In either of such cases, the judgment or order assailed in appeal has to be of a single Judge of the High Court and the appeal, variously described as the High Court or Intra Court Appeal, is to lie to a bench of two Judges of the same court. The question, in the form of an objection through C.M.A. 33/95, being dealt with here is irrelevant when the appeal is directed against of final, judgment, decree or order and arises only when an appeal seeks to assail an interim or interlocutory order. The right to bring such an appeal is, inter alia, enshrined in Order XLIII Rule. 1 C.P.C. In relation to appeals of this character Rule 3 of Order XLIII C.P.C., which was enacted through Ordinance X of 1980 as amended by Act XTV of 1994, prescribes a prior notice from the appellant to the respondent. The provision is not only applicable to High Court or Intra court appeals against interim or interlocutory orders but also to civil miscellaneous appeals against similar orders brought before District Judges. It would be appropriate here to reproduce the current version of Rule 3 of Order XLIII as it subsists in the Code of Civil Procedure. Such is as under :- "3. Notice before presentation of appeal.—(I) 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 either personally or through registered post acknowledgement due and the postal or other receipt shall be filed with the memorandum of appeal for the record of the appellate Court. (2) On receipt of notice referred to in sub-rule (1), the respondents may, with the permission of the Court, appear before it and contest the appeal and may be awarded costs on dismissal of the appeal in limine." Now upon the facts of this appeal, such was filed on 7.12.1994, calling into question an interim order dated 15.11.1994 in Suit No. 88 of 1994 whereby a learned single Judge of this Court sitting on the original side confirmed the ad-interim injunction granted earlier in such suit. Together with the memo of appeal, Mr. S.A. Samad Khan, the learned counsel for the appellants, filed a personal affidavit on 7.12.1994 itself maintaining therein that service of copies in accordance with Order XLIII Rule 3 C.P.C. had been effected on the learned counsel for the respondent. As it turns out, Mr. Samad Khan laboured under the impression the due service must have been effected at 8.00 a.m. that day, hut such evidently did not come to transpire because the office of the respondent's learned counsel, Mr. Mansoor ul Arfin, was found closed at the time, actual personal service materialising only at 4.00 p.m. the same day. The appeal was put up for katcha peshi on 21.12.1994 when it was adjourned as Mr. Mansoor ul Arfin was not present and the bench seized of the matter observed that it "would like to hear him as well". On the next date when the case was taken up viz. 29.12.1994. Mr. Mansoor ul Arfin filed power on behalf of the respondent and the matter i adjourned by consent. In course of time, for the respondent CMA 32/95 1 filed seeking that the appeal be dismissed "as notice under Rule 3 of Order XLIII C.P.C. has not been served in accordance with the provision thereof before filing of the appeal." Later the learned counsel for the appellants filed an application for constitution of a larger bench as, according to the plea taken therein, there was divergence of opinion on the interpretation of Role 3 of Order XLIII C.P.C., warranting is resolution through a larger bench. Such application came up before a division bench headed by A.H. Memon, ACJ. but was dismissed with the observation, "we see no justification in constituting a larger bench". Today, upon hearing the learned counsel, as to the effect of Rule 3 rf Order XLIII C.P.C. on the maintainability of this appeal, we have recorded the following short order :- "At the outset we proposed to hear the learned counsel on the merits of the controversy taking up the question of compliance at otherwise of Rule 3 of Order XLIII C.P.C. as an ancillary questioa but Mr. Mansoorul Arfin insisted that the objection being preliminary in nature is to be heard first and it is only thereafter that merits, if warranted, be addressed. We have, therefore, heard the learned counsel on the impact of , Rule 3 of Order XLIII C.P.C. vis-a-vis the maintainability of this appeal. Hearing them at length, which has consumed almost two hours, we are of the view that the objection is to be over-ruled for reasons which we would record in course of time. Accordingly, the H.C.A would be laid for katcha peshi on an adjourned date but according to roster." What follow below are our reasons for the aforequoted short order. It is clear from the record that, while on service could.be effected of due notice in terms of Order XLIII Rule 3 C.P.C. on the respondent before the filing of this appeal, such service was effected the same day at about. 4.00 p.m Mr. Mansoorul Arfin appearing for the respondent, however, has urged that the requisite service under the provision had to be effected before the presentation of the appeal and that such presentation was bad not having satisfied a mandatoiy requirement as held in Mrs. Dino Manekji Chinoy v. Muhammad Matin, PLD 1983 S.C, 693, Muhammad Latif Ghazi v. farid Akhtar Hadi, (Civil Petition No. 573-K of 1990) decided on 24.4.1991, and Saleem Muhammad v. Khadija Bai and others, (H.C.A. 2, of 1994) decided on 27.10.1994. On his part, Mr. S.A. Samad Khan has relied upon Hqji Suleman Gowawala & Sons Limited v. Usman, 1985 CLC 168, Muhammad Ramzan v. Karim Bukhsh, 1988 CLC 448, Muhammad Naeem v. Ghulam Nabi, NLR 1988 Civil 23, Bashir Ahmad v. Province of Punjab, PLJ 1990 Lahore 266, Ejaz Siddique v. Kaneez Begum, 1992 CLC 1658 and Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213. While the object and effect of Order XLIII Rule 3 C.P.C. has been examined in practically all the cited case law and some more, the basic decision on the subject is that of the Supreme Court of Pakistan in the matter of Mrs. Dino Manekji Chinoy u. Muhammad Matin ibid., which in turn arose from a decision of this court in Muhammad Matin u. Mrs. Dino Manekji Chinoy, PLD 1993 Karachi 387, not cited at the bar.,'Some other decided cases on the subject which may, off-hand, be also preferred are Siraj Din v. Province of Punjab, 1984 CLC 1287, Mohd. Siddique v. Boota, PLD 1985 Lahore 243, Managing Director, Punjab Industrial Development Board v. Habib Sugar Mills Limited, 1986 CLC 2044, Ghulam Rasool v. Fatima, 1987 CLC 1177, and Nazir Ahmad Jagirani Blouch v. Province of Sindh, 1987 CLC 1750. It is now well settled that a case is only authority for what it actually decides, that generality of expressions to be found therein are not to be taken as unqualified expositions of law and that the propositions deducible from each case are to be controlled by the particular facts emerging therefrom. Besides, precedents themselves have been found to fall in distinct categories. It is upon these premises that the cited cases on the point are to be examined. Mr. S.A. Samad Khan in the context has correctly drawn our attention to the following observation of the Supreme Court regarding precedent law from the Trustees of the Port of Karachi v. Muhammad Saleem, 1994 SCMR 2213 :- "19. Precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are, therefore, binding, if the decision be by the Supreme Court, on all courts in Pakistan, and if the decision be by a High Court, an all Courts subordinate to it. In the second categoiy fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first categoiy of precedent cases. So in order that a decision on a question of law is binding within the meaning of Articles 196 and 201 of the Constitution it is not enough that a legal proposition follows logically from it; that question must have been actually decided." Respectfully subscribing to the quoted dictum of the Supreme Court and treating the case of Dino Manekji Chinoy as central to the controversy. we now proceed to examine the connotations of the requirements speit out in Order XLIII Rule 3 C.P.C. In Sirqj Din v. Province of Punjab, 1984 CLC 1287 (Mi Ilyas J., as he then was), Muhammad Siddique v. Botta, PLD 1985 Lahore 243 (Muhammad Eyas J.), Managing Director Punjab Industrial Development Board v. Habib Sugar Mills Limited, 1986 CLC 2044 (Muhammad Ilyas J.), Ghulam Rasool v. Fatima, 1987 CLC 1177 (Muhammad Asadullah JJ, Nazir Ahmad Jagirani Balouch v. Province of Sindh, 1987 CLC 1750 (Mamoon Kazi J.) and M. Naeem v. Ghulam NM, NLR 1988 Civil 23 (Munawar Ahmad Mirza J., as he then was), it seems to have been held that the requirement of notice under Order XLLD Rule 3 C.P.C. is mandatory. On the other hand, in Muhammad Matin v. Mrs. Diao Manekji Chinoy, .PLD 1983 Karachi 387, a division bench of this Court. presided over by Abdul Haji Qureshi CJ., on a close analysis of the provision, came to the conclusion that it was not mandatory. In appeal before the Supreme Court, the report being Dino Manekji Chinoy v. Muhammad Matin, PLD 1983 S.C. 693, the Supreme Court did not expressly disagree with the High Court view that the provision was directory and not mandatoiy observing only that the issuance of due notice to the respondent before presentation of the relevant appeal was obligatory and no appeal could be entertained without issuance of the requisite notice. It then proceeded to amplify the provisions by adding requirement of an affidavit with the memo of appeal setting forth due issuance of such notice. The dictum in .para 18 of the judgment occurs in these words :- "Hence we think that issuance of a notice to the respondent before presentation of an appeal preferred against an order passed during the pendency of a suit is obligatory and no appeal can be entertained without issuance of the requisite notice. It would, therefore, be entirely appropriate, with a view to ensuring that the provisions of this beneficial rule are given effect to in letter and spirit that the officers responsible for inter alia receiving and scrutinising appeals preferred against the interlocutory orders made during the pendency of a suit of all the courts concerned, do require the appellant or his Advocate to submit, alongwith the other documents required for filing an appeal, an affidavit that he has given notice of such appeal to the respondent or his Advocate by delivering him a copy of the memorandum and grounds of appeal alongwith a copy of the order appealed against and shall also attach with the said affidavit a copy of the acknowledgement receipt obtained from the respondent or his Advocate, as the case may be. Any appeal, which is not accompanied by such an affidavit and a copy of the acknowledgement receipt should not be entertained." A degree of misapprehension in some of the" case law, which has followed, seems to have occurred because the foregoing observation was largely approached either without reference to or with a mere cursory dissertation of the .actual application of the dictum on the facts of the case, which really was its ratio and which occurred thus in para 19 of the report :- "19. In the instant case, we observe that the learned Division Bench had issued a pre-admission notice to Advocate of the respondents (the petitioners herein) and their Advocate Mr. Akhtar Mahmood was present on pre-admission notice. Thus, he could contest the admission- of the appeal and seek its dismissal in limine. No grievance, furthermore, was made by him to the effect that any document <to which reference was being made during the hearing of the appeal had not been supplied to him or that he was otherwise taken by surprise. Thus, in this case, all the objects for which rule 3 was inserted in Order XLIII of the C.P.C. were satisfied in substance. Since the proper place of procedure is to help and not to thwart the obtaining of justice and procedural laws, as pointed out by Mr. Sharifuddin Pirzada, should be utilised as "stepping stones" rather then we might add, as stumbling blocks; the right of a party in this case to have this appeal heard, cannot be allowed to be defeated for failure to comply with the form where the substance has, in fact, been complied with. See Imtiaz Ahmad v. Ghulam All and others (PLD 1963 S.C. 382) and Manager, J & K State Property in Pakistan v. Khuda Yar (PLD 1975 S.C. 678)." Substantially correct interpretation of the provision and application of the Supreme Court dicta, in our respectful view, occurs inter alia in Hqji Suleman Gowawala & Sons v. Usman, 1985 CLC 168 (Naimuddin and Ibadat Yar Khan JJ.), Muhammad Ramzan v. Karim Bukhsh, 1988 CLC 448 (Amjad Khan J.\ Bashir Ahmad v. Province of Punjab, PLJ 1990 Lahore 266 (Abaidullah Khan and Khalid Paul Khawaja JJ.) and Ejaz Siddique v. Kaneez Begum, 1992 CLC 1658 (Abdul Majid Tiwana J.). The foregoing Karachi and Lahore Division Benches appear to have settled the law in so far as these Courts are concerned. As to the unreported Supreme Court and this Court cases of Muhammad Latif Ghazi v. Farid Akhtar Hadi (Civil Petition No. 573-K of 1990) and Saleem Muhammad v. Khadija Bed (High Court Appeal No. 2 of 1994), heavily relied upon by Mr. Mansoorul Arfin. such appear essentially to be illustrations of the application of the principle of law enunciated in the case of Dino Manekji Chinoy and do not appear to lay down independent enunciations. This is more so because the Supreme Court unreported case of Muhammad Latif Ghazi was authored by Naimuddin J_ who sat on the Bench with Sajjad Ali Shah J. (as he then wasi and Naimuddin J. cannot, without due dilation, be assumed to have said anything contrary to what was observed in the case of Hqji Sulanm Gowawala to which he was a party. The case of Dino Mankeji Chinay itself cannot be interpreted in isolation of the fact that the question whether the conditionalities in Order XLIII Rule 3 C.P.C. were directory or mandatory in nature was examined in a background where no notice whatever, prior or otherwise, for filing the relevant High Court Appeal was served in the ease but the respondent appeared upon issuance of pre-admission notice and in actual fact was accorded due hearing before the appeal could be decided, ft was, therefore, held that the provision in essence and in substance stood satisfied. Now one of the criteria to determine whether a statutory provision was absolute or merely directory is to find out whether the same was couched in affirmative or negative language, negative in the sense of the statute enacting that a certain thing shall be done in a certain manner and none other. While a universal rule cannot be laid down, it may, conveniently be stated that where the language employed is affirmative, the statute would be directory and where negative it would be mandatory. Another criterion to be noticed in determining the mandatory or directory nature of a statutory provision is to see as to what consequences are stipulated to follow upon non-compliance thereof. It the disobedience is to entail invalidity, the provision would be mandatory, if not it would be directory. Yet another test to be applied is to examine the object, which the statutory provision was designed to fulfil. If the provision was designed to benefit the entire populace, as distinguished merely from the parties to a particular cause, the provision would be mandatory : Mohd. Matin v. Dino Manekji Chinoy. PLD 1983 Karachi 387. Thus because Rule 3 of Order XLIII C.P.C. neither employes negative language nor contemplates a consequences of invalidity upon non-compliance nor was it for the benefit of the entire populace, as distinct from the parties to a cause, the inescapable conclusion is that while the requirement of notice in Rule 3 of Order XLIII C.P.C. may be obligatory or binding, something in the higher echelon of being directory, it cannot be termed to be mandatoiy, peremptory or absolute. The conclusion that it is so is strengthened by the fact that the positive step envisioned in the rule is procedural and the place of all procedure in law is designed to secure the ends of justice and not, as pointed out by the Supreme Court, to create "stumbling blocks". Thus approached the condition seem to be enacted to ensure expeditious disposal of interlocutory appeals and to thwart the proverbial delays of law. Failure to satisfy the requirement of the prescribed notice in Rule 3 of Order XLIII C.P.C., in appropriate cases, may be visited by dismissal of the appeal whereas in like manner where the justice of the case so requires, the party in default may be relieved of the pains of dismissal by according adequate dispensation in the way of costs or otherwise because costs, we may add, have been held to be a penacea for all civil wrongs. This arises because the legislature, in its wisdom, has chosen not to spell out the consequences of default in each individual case, leaving a discretion on the court but like all discretions, vesting in judicial and quasi judicial bodies, such has to be judiciously exercised. Here we may point out that the word "entertain" as used in the opinion of the Supreme Court, incorporated ,in the case of Dino Manekji Chinoy, cannot be termed as entertainment by the office of the court but involves dues process of application of a judicial mind to the matter. In other words, the court office is obliged to receive an appeal and to raise necessary objections if not accompanied with due notice etc. but whether to entertain the appeal or.to throw it out must still remain in the domain of Judge (s), who would in the normal course come to be seized of an individual case. A very useful discussion on the subject is to be found in the Division Bench judgment of the Lahore High Court reported as Bashir Ahmad v. Province of Punjab, PLJ 1990 Lahore 266 (see paras 15 and 16 of the report). The conclusion that we have reached is fortified by the realities on the ground. Thus miscellaneous or interlocutory appeals, which are covered by Order XLIII C.P.C., are often enough directed against judicial dispensations of very pressing or urgent characters such as interim orders of injunctions, attachment, receivership and even arrest. It, therefore, arises that an appeal may be preferred the same day such an order is passed. If so, there will be little prospect of service of notice, as such. It is for this reason that the learned Judges in the Supreme Court in the case of Dino Mankeji Chinoy have deliberately insisted upon and used the word "issuance" rather than service of notice, which manifestly is in line with the language used in the provision: See also the observations of Amjad Khan J. in Muhammad Ramzan v. Karim Bukhsh ibid. The rule, therefore, involves a prior issuance and not necessarily actual service of notice. In urgent cases the appellate fqrum need not with for service and may act on its mere issuance. In others, it may choose to have the respondent served before passing any operative order. Serious cases, where the appellate court comes to the conclusion that the omission or avoidance is deliberate, calculated to extract and undue advantage by circumventing the requirement of law, may entail penalties of dismissal. All these are discretionary matters and compliance of Rule 3 of Order XLIII C.P.C., therefore, is more a matter of applying the spirit and substance than the mere letter of law, divested of justice. We need not be detained here by the use of the word "shall" in the rule. That word, sometimes connoting a mandate and on others a discretion, is to be given effect to in the context of each case. Here it enjoins an obligation or a i but that can be relieved where justice of a cause so warrants. Coming to the instant appeal, on the basis of the discussion has preceded, who are of the view that the necessary notice was evident^ issued by the learned counsel for the appellants and in the circumstances of the case, where the respondent in course of time appeared in the proceedings, the conditionalities of Rule 3 of Order XLIII C.P.C. appear to have been substantially complied with. No mala fides have been shown to exist. No prejudice is claimed to have been caused. For such reasons, we have, through the short order quoted above, over-ruled the objection taken and dismissed the application brought for the purpose of non-suiting the .appellants. (B.T.) C.M.A dismissed

PLJ 1996 Karachi 16 (DB) PLJ 1996 Karachi 16 (DB) Present: wajihuddin ahmad and agha saifuddin khan, JJ. TRUSTEES OF THE PORT OF KARACHI.-Petitioner versus HASHIM & Two others.-Respondents Constitution Petition No. D-1654 of 1995, dismissed on 12.9.1995 -Entiy of age on National Identity Card —Wehther conclusive proof of age—Question of—Entiy in National Identity Card is only one of factors to be taken into consideration in reckoning age and may not be conclusive in given circumstances of case-Additional material was already available with petitioner in shape of medical certificate, on basis of which management was poised to retire respondent No.l, when that respondent approached Labour Court-Such certificate was also relevant and could be relied upon but petitioner-management lost or irretrievably misplaced it~ Accordingly, for propose of determining age of respondent No. 1, courts in Labour jurisdiction were right in allowing petitioner to have respondent No. 1 medically examined again in order to determine his approximate date of birth on basis of which he could be retired from petitioner's service. Held : Impugned orders, thus, appear to be just, fair and lawful- Petition dismissed. [P. 17] A Mr. ArifKhan, Advocate for Petitioner. Date of hearing : 12.9.1995. judgment Wajihuddin Ahmed, J.--(l) Exemption is allowed but subject to all just exceptions. (2) The facts of the case need not be enumerated as such are appropriately detailed in the two impugned orders. As to the concurrent findings of the Labour Court and the Appellate Tribunal, it is contended that the respondent No. 1 was not a worker at all and, therefore, his case did not fall within the purview of Section 25-A of the Industrial Relations Ordinance. The contention was rejected by the Labour Court and has found no mention whatever in the decision of the Tribunal, the inference being that the point was not argued there. If such was duly urged and for some reasons not dealt with in the impugned decision there was nothing to preclude the petitioner from seeking due clarification. That this was not done implies that the question was never raised at the hearing even though it may have figured in the memo of appeal,'as claimed before us. The matter being one purely of fact, we are not inclined to entertain it at this stage more so because no miscarriage of justice is shown to have resulted therefrom. Next contention of the learned counsel is that in spite of a settlemen between the management and the Union , the respondent No. 1 did not rovide any proof of his age, apart from the National Identity Card. It is orrect that the entiy, as to age, in the National Identity Card is only one of the factors to be taken into consideration in reckoning age and may not be onclusive in the given circumstances of a case. However, additional material was already available with the petitioner in the shape of a medical certificate, secured at the petitioner's own instance, on the basis of whfch the management was poised to retire the respondent No.l, when that respondent approached the Labour Court . Such certificate was also relevant and could be relied upon but the petitioner-management lost or irretrievably misplaced it. Accordingly, for the purpose of determining the age of respondent No.l, the Courts in the. labour jurisdiction were right in allowing the petitioner to have the respondent No.l medically examined again in order to determine his approximate date of birth on the basis of which he could be retired from the petitioner's service. The impugned orders, thus, appear to be just, fair and lawful. No interference is called for. Dismissed. (B.T.) Petition dismissed.

PLJ 1996 (Karachi) 18 (DB) PLJ 1996 (Karachi) 18 (DB) Present : WAJIHUDDIN AHMAD, AND AGHA SAIFUDDIN, JJ. RIAZ AHMAD-Appellant versus DR. AMTUL HAMEED KOSAR and 8 others-Respondents. H.C.A. No. 17 of 1995, dismissed on 29.8.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)-- —O.XXII R. 10, read with 0.1, R. 10(2) CPC-Appellant seeking permission to join as party to suit on basis of agreement-Rights in property to be devolved in future-Whether he "is proper and necessary party and could join as party—If not what remedy was available under law-Question of Rule 10 of Order XXII introduces enabling provision for induction of parties in suit upon whom during pendency interest may have devolved or otherwise been conferred-Such rule, quite arguably happens to be in place because solely upon phraselogy and operation of O.I, CPC successor in interest may not have been entitled to be joined as necessary or proper party-Order XXII Rule 10 CPC, in reality, is provision which contemplates concept of devolution of interest and tangible interest-If such interest had devolved before suit was filed or appellant's assignors had different notions upon frame of suit and were inclined to give effect to above agreement, as stipulating actual and effective devolution ok conferment of interest, there was nothing to preclude them from inducting appellant, at initial stage, as co-plaintiff in suit-Held: Interest of appellant is merely contingent and agreement is to operate-Appeal dismissed. [Pp. 20&21] C,"D,E & F. (ii) Contract Act, 1872 (IX of 1872)- —S. 23-Read with Order 1, Rule 10(2) Civil Procedure Code, 1908- Impleadment as party-Application for-Dismissal of-ChaUenge to-It is not free from doubt that agreement stipulating to convey 30% of shares in estate left by deceased husband of plaintiff could be extortionate or unconscionable—In such matters proportion of benefit to claim to be pursued and its ratio with plausible prospective expenses of litigation are important considerations for judging extortionate or immoral nature qf — transaction-Similar agreement regarding gambling etc: may be very welcome as between parties and yet third parties may be adversely ffected, giving occasion for them to raise challenge-Proceedings in suit had potential of hitting respondent No.l hard and she can well raise question about agreement on basis of which litigation may be getting financed—Held: Agreement is obviously champertous and may have ingredients of being extortionate-Premium is to be allowed to beneficiary to be joined in suit as a matter of right. [Pp. 19&20] A & B Mr. A. Rauf, Advocate for the Appellant. Mr. Khawqja M. Hussain Darabu, Advocate for Respondents. Date of hearing: 29.8.1985. ' order Wajihuddin Ahmad, J.--The sole ground upon which this appeal proceeds is that the appellant was erroneously disallowed from being joined as a party to the suit under Order 1 Rule 10(2) C.P.C. On facts, the appellant, for seeking to be joined as a party to the relevant suit, relied upon an agreement dated 11.3.1991, executed in his favour by plaintiff Mst. Amtual Rashid, acting for herself and as attorney for her two sons viz.-tier co-plaintiffs in the suit. Through such agreement, the three plaintiffs "agreed to sell" 30% of the their shares in the estate left by their deceased husband and father respectively to the appellant in consideration of the appellant's proposed investment of time and money in the matter of recovery of such estate. The learned single Judge disallowed the request of the appellant to be joined on the short ground of the appellant being neither a necessaiy nor a proper party. In that the learned single Judge appears to have been right because neither the appellant "ought to have been joined" on the ground that in his absence no effective decree could have been passed, as a necessaiy party, nor the appellant's presence was requisite to effectively and completely adjudicate upon and settle all points involved in the suit, as a proper party. This apart, some other questions have also been raised before us which need to be examined. Thus it has been pointed out by Mr. Darabu, the learned counsel for the Respondent No.l, who is a sister of the deceased, that the power of attorney upon which the above referred lady has acted in executing the agreement on behalf of her two sons (co-plaintiffs) did not authorise' her to effect such an agreement. Indeed, the question of the power of attorney and how far it goes in the way of authorising plaintiff-Amtul Rashid has been remanded by us to the learned single Judge in a separate appeal brought by the Respondent No. 1 namely, HCA 67/95. We, therefore, are not inclined to delve into the impact or effect of such power of attorney at this stage. Another aspect of the matter is that an agreement directed to finance or otherwise encourage litigation, involving one person extending assistance to another in consideration of sharing in the prospective spoils of litigation, has consistently been frowned upon by courts and may involve elements of being opposed to public policy, as enacted in Section 23 of the Contract Act. However, in response, Mr. A. Rauf, for the appellant, has correctly pointed out, relying on Fateh Jang v. Bute Khan, AIR 1934 Lahore 101,7, that such a champertous agreement, even though inviting scrutiny on considerations of public policy, may yet be enforceable, if not actually extortionate or un-conscionable. Even so, in the instant case, it is not free from doubt that the agreement, stipulating to convey 30% of the estate, could be extortionate or unconscionable because the value of the estate of the deceased, as assessed in the suit by the plaintiffs themselves, exceeded the valuation upon which maximum quantum of court fee was payable. In point of fact, we may add that, such 30% portion would definitely have been more than the share of the attorney-plaintiff No. 1 who had executed the agreement and only a little less than the individual shares of her/two sons. In such matters proportion of the benefit to the claim to be pursued and its ratio with the plausible prospective expenses of litigation are important considerations for judging the extortionate or immoral nature of the

w transaction. On such basis, the conclusion may not be entirely favourable for "^ the appellant and the agreement may well be void and unenforceable in line with the prohibition in Section 23 of the Contract Act, 1872. Mr. A. Rauf, however, has urged that whatever be the legal implications of the agreement, the parties to it never repudiated it and, therefore, it is not open to scrutiny on that score. The argument, though at first sight attractive, may not carry the appellant's case very far because a similar agreement regarding gambling etc. may be very welcome as between the parties and yet third parties may be adversely affected, giving occasion for them to raise a challenge. In the instant case, on account of the on-going litigation even the bank account of the Respondent No. 1 was shown to us to have been made the subject matter of enquiry though such question has been returned by us to the learned single Judge for re-examination in the „ above referred connected appeal. The proceedings in the suit thus had a potential of hitting the Respondent No.l hard and she can well raise a question about the agreement on the basis of which the litigation may be getting financed. Yet we are not inclined to brush aside the agreement as opposed to public policy and, therefore, void because that really is a matter between the parties to it. All that we need to say is that the agreement is obviously champertous and may have ingredients of being extortionate. For such reasons, we are not inclined to allow premium to the beneficiary to be joined in the suit as a matter of right. Whether the agreement is actually unconscionable or extortionate, we leave it to be determined in an appropriate forum, if and when that question directly arises. Here, we may add that Order I CPC is not a complete Code for joinder or otherwise of parties to an action. There are other provisions in the Code as well, which tend to reflect on such a question. Thus, in the specific context of pendent lite assignment or devolution of rights ventilated in a suit, rule 10 in Order 22, which is th'e residuary rule, stands thus :- "10. Procedure in case of assignment before final order in suit.~(l) In other cases of an assignment,, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1)." The rule quoted introduces an enabling provision for induction of paities in a suit upon whom during pendency an interest may have devolved or otherwise been conferred. Such rule, quite arguably, happens to be in place because solely upon the phraseology and operation of Order 1 CPC a successor in interest, as aforesaid, may not have been entitled to be joined as a necessary or proper party. Still the rule does not sanction the joinder of a person who may, in course of time, come to have an interest in the continuation of the suit. It is obvious that no devolution of interest has yet occurred in favour of the appellant even if it be assumed that such could lawfully have some share. The interest is merely contingent and shall come about, if at all, in futuro. This being the position, in terms of Rule 10 aforesaid the appellant is not entitled to be joined in the proceedings. Here, we may add that, Mr. A. Rauf has pointed out that the agreement in question, for furthering litigation. at the instance of the plaintiffs, was concluded before the suit was filed and, therefore, Order XXII Rule 10 CPC, on our own analysis, being incapable of application, appellant's joinder be permitted on general principles. Order XXII Rule 10 CPC, in reality, is a provision which contemplates the concept of devolution of interest and a tangible interest at that. Thus, if such an interest had devolved before the suit was filed or the appellant's assignors had different notions upon the frame of the suit and were inclined to give effect to the above agreement, as stipulating an actual and effective devolution or conferment of interest, there was nothing to preclude them from inducting the appellant, at the initial stage, as a co-plaintiff in the suit. That they did not do so is a matter for which they themselves may be said to be responsible. Still, even if the appellant was so joined, as claimed, it would always have been open to the other side to question the appellant's induction in the suit and the result, in the ultimate analysis, may not have been different from what it has now come to be, because, as we have said, the agreement operates in futuro and what is more is contingent upon success, not to mention its being champertous. For the aforesaid -reasons, we see no merits in this appeal and dismiss it with costs, (BT) Appeal dismissed.

PLJ 1996 Karachi 22 (DB) PLJ 1996 Karachi 22 (DB) Present: wajihuddin ahmad and agha saifuddin khan, JJ. FAROOQ HASSAN and another-Appellants versus INTERNATIONAL CREDIT & INVESTMENT COMPANY (OVERSEAS) Limited and another -Respondents H.C.A. No. 129 of 1994, dismissed on 29-8-1995. Civil Procedure Code, 1908 (Act V of 1908)-- —S. 94 and O.39, R. 1, 2 & 7 read with S. 151«Restraint against defendant No. 1 & 2 from interfering with carrying out of survey-Interim relief- Grant of--Challenge to--For grant of interim relief it is never necessary for court to record positive finding in favour of either party—On balance, party claiming relief is only to have made outprima facie case, which, in turn, means arguable and not indefeasible case--If that be so, next questions to be considered are those of balance of convenience and irreparable loss, when relief claimed is that of interim injunction- Appellants/defendants are manifestly engaged in proxy contest-Person with whom they are living, alleged owner, according to their version, is real sister of appellant/defendant No.l and sister-in-law of appellant/defendant No. 2, and is living under same roof-She cannot be assumed in such circumstances to be ignorant of proceedings in suit and there is no ostensible reason for her not to appear and enter contest in order to safe-guard her interest, if any-There remains big question mark on lady for not having come forward and sought to be joined as party in instant suit-What is more, it is only she who could have been adversely affected by impugned order and if so inclined she was fully entitled to have brought appeal in court-She did not do so-Held: In such circumstances, no relief can be granted to appellants much less when appellants have not interest of their own to pursue in matter-Appeal dismissed. [Pp. 24 to 26] A, B, C & D Mr. Amanullah Khan, Advocate for Appellants. M/s Abraham & Sarwana, Advocates for Respondents. Date of hearing: 29.8.1995. judgment Wajihuddin Ahmed, J.-C.M.A. No. 1101/94, under Order 41 rule 5 C.P.C., for stay of the impugned order, was placed before us for hearing today but because the questions to come up for examination in relation thereto were essentially the same as in this High Court Appeal we have, with the consent of the learned counsel, heard the main appeal itself and disposed it of through a short order, which runs thus :- "For reasons, to be recorded separately, this appeal is dismissed and with special costs." It is an order dated 28.9.1994 passed in Suit No. 644/93 which gives rise to this appeal. Such suit was filed by the respondent No. 1 (plaintiff, a banking company registered in Grand Cayman, Cayman Islands, currently under liquidation, for possession of the disputed property and mesne profits. The appellants Nos. 1 and 2 (defendants Nos. 1 and 2) were sued in the suit together with the respondent No. 2 (defendant No. 3), the first two as being in un-authorised occupation and the third as one instrumental in putting them in such occupation. Several applications were filed for interim reliefs in the suit, one of which was an application under Order 40 rule 1 C.P.C. (C.M.A. No. 10429/93) for appointment of a Receiver, whereupon on 16.10.1993 an order was passed appointing the Official Assignee to prepare an inventory of the fittings, fixtures, appliances, furniture and other articles in the disputed property and the inventory according to the memo of appeal was prepared on 18.10.1993 and 19.10.1993, the official Assignee's report being submitted on 21.10.1993. The learned single judge observes in the impugned order that the direction to prepare an inventory does not appear to have been objected to as the costs thereof namely, a sum of Rs. 15.000/- was required to be paid by the plaintiff upon a plea that it was at the plaintiffs instance that the referred inventory was occasioned. The next stage in the proceedings is reflected in an application under Section 151 C.P.C. (C.M.A. No. 10774/93) whereupon, pursuant to a recital that the plaintiff had taken out an insurance policy of the Villa and the furniture, fixtures etc. including equipments and paintings stored therein in the sum of U.S. $ 3.392 million which stood expired on 19.4.1991, it was prayed that the Court be pleased to order that the defendants Nos. 1 and 2 do allow the insurance agent/insurance surveyor and an architect of plaintiffs choosing to survey the property so that a valuation and insurance of the property could be effected. Such order was passed, by consent, on 5.1.1994 but without prejudice to the respective contentions of the parties. It is the case of the plaintiff that the survey was obstructed by the defendants and in particular by the defendant No. 2, wife of the defendant No. 1. At this stage (19.6.1994) was occasioned yet another application (C.M.A. No. 3045/94) though this time under Section 94 and Order 39 rules 1, 2 and 7 read with Section 151 C.P.C., seeking restraint against the defendants Nos. 1 and 2 from interfering in any manner with the carrying out of the survey by the plaintiffs architects and engineers, M/s Bilgrami & Faruque, as also from taking the necessary photographs of the movable and immovable properties together with detailed measurements of all the items, furniture and fixtures lying or affixed in the property in question pursuant to the consent order dated 5.1.1994. Upon due examination, a learned single Judge of the Court on 28.9.1994 passed the impugned order, allowing M/s Bilgrami & Faruque to take the photographs and measurements of the property and of all items to be found in the bungalow which were mentioned in the inventory prepared by the Official Assignee. Mr. Amanullah Khan, appearing for the appellants (defendants Nos. 1 and 2), has urged that one Mrs. Qamrunnisa, who is a sister of defendant No. 1 and sister-in-law of defendant No. 2, obtained the property under reference on lease from Mrs. Rabia Abidi, wife of Agha Hassan Abidi acting through her attorney, defendant No. 3, which lease was converted into a sale per sale agreement dated 11.11.1986 for a consideration of Rs. 23 Million. As against this, it has been urged from the side of the plaintiff that the plaintiff itself is the sole purchaser through a deed of conveyance dated 27.12.1986 which, in turn, was based on a sale agreement of August, 1979, executed by the same Mrs. Rabia Abidi through the same attorney namely, the defendant No. 3. It has further been urged that Mrs. Rabia Abidi has subscribed to and endorsed the sale in favour of the plaintiff though the defendant No. 3 has taken incoherent stands. Mr. Amanullah Khan, representing the appellants, has contended that the consideration for the purported sale in favour of the plaintiff is palpably inadequate and besides the plaintiff being a foreign company in liquidation did not have the necessaiy sanction for the same in accordance with the Pakistan Law. As to the claimed inadequacy of consideration, Mr. S.A. Sarwana, appearing for the plaintiff, maintains that the sale price is to be gauged on the basis of valuation prevailing in August, 1979, the date of the agreement, and that due compliance of law was effected before concluding the sale. On his part, Mr. Amanullah Khan has Jbeen unable to show us the specific provisions of law which the alleged sale in favour of the plaintiff has contravened. That learned counsel, however, has urged that necessary parties namely, Mrs. Rabia Abidi, the transferor, and Mrs. Qamar-un-Nisa, under whose authorisation the defendants Nos. 1 and 2 are in occupation, have not been joined even though such facts were disclosed by two defendants at the outset of the proceedings in their joint written statement. For the grant of interim relief it is never necessaiy for a Court to record a positive finding in favour of either party. On balance, the party claiming relief is only to be shown to have made out a prima facie case which, in turn, mans an arguable and not an indefeasible case. If that be so, the next questions to be considered are those of balance of convenience and irreparable loss, where the relief claimed is that of an interim injunction. In cases seeking appointment of an interim receiver, allegations of waste are alternatively to be established besides the justness and convenience in the cause. The instant matter, however, involves merely what, in effect, may be called issuance of a commission which, in turn, is governed by Order 26. C.P.C. and also by Section 151 of the Code, if, for want of specifies in Order 26, an order is designed to do complete justice between the parties, taking into consideration all aspects of the matter,. Such an order, in terms of legal requisites is to issue if the Court, seized of matter, considers it just and convenient so do. To be precise, in the various provisions of the Code, vast inter-locutory powers have been conferred on courts of civil jurisdiction to ensure that relief is fashioned to cover the exigencies in each individual case. It is in the foregoing perspective of the legal position that we have to examine the validity of the impugned order. It is obvious that an inventory was prepared and suffered by the defendants more or less without contest. It is equally obvious that a consent order for survey by the insurance agent/surveyor and an architect of plaintiffs choosing emanated in the proceedings with the sole purpose of obtaining an insurance cover which admittedly was operative in relation to the property at one time or another. The sole objection is that such insurance cover did not detail the movables and that it is still not necessaiy to do so. The argument, however, bags the question that at that time the property was not in dispute and as of now there is no guaranteeing the fact that the goods and articles of which inventoiy has been prepared may not be substituted by others of lesser value with little possibility of retrieving the loss or damage. Indeed, photographing of such material would only confirm the inventorised goods and articles without in any way affecting the possession thereof or the entitlement thereto. We really cannot see as to how the kind of objections which have been taken may not imply that the defendants/appellants are minded to disturb the safe-keeping and maintenance in status-quo of the items in the inventory, which is already on the Court's record. There is also another aspect of the matter. The appellants/ defendants are manifestly engaged in a proxy contest. The person with whom they are living, the alleged owner, according to their version, is a real sister of the appellant/defendant No. 1 and a sister-in-law of the appellant/ defendant No. 2, and is living under the same roof. She cannot be assumed in such circumstances to be ignorant of the proceedings in the suit and there is no ostensible reason, except one which may not commend itself to a judicial mind, for her not to appear and enter contest in order to safe-guard her interest, if any. In answer, Mr. Amanullah Khan has urged that the lady has filed a suit of her own and currently there are three suits between the contestants, which are likely to proceed together. Even if that be so, there still remains a big question mark on the lady for not having come forward and sought to be joined as a party in the instant suit. In context, it has also been urged that it was equally the duty of the plaintiff itself to have joined Mrs. Qamar-un-Nisa. We do not think so. Admittedly, there is no completed sale in favour of the lady and the seller has not subscribed to the transaction. The stage for determining whether the lady was a necessary or proper party is still to come, but before that her purported interest was assailed and she must have known it and yet she did not come forward. What is more, it is only she who could have been adversely affected by the impugned order and if so inclined she was fully entitled to have brought an appeal in Court before us. She did not do so. In such circumstances, no relief can be granted to the appellants much less when' the appellants have no interest of their own to persue in the matter. For such reasons, we have through a short order, reproduced above, dismissed this appeal with special costs. In the circumstances of the case where even for preparing an inventory a fee of Rs.15,000/- has been determined and paid, we would impose equal special costs in a similar sum of Rs. 15.000/- on the appellants as costs of this appeal. Dismissed. (B.T.) Appeal dismissed.

PLJ 1996 Karachi 26 (DB) PLJ 1996 Karachi 26 (DB) Present: ABDUL HAFEEZ MEMON, ACJ AND NAZIM HUSSAIN SIDDIQUI, J. M/s S. G. RAUF & Co. and others-Petitioners versus UNITED BANK LTD. and others-Respondents Constitutional Petition No. D-2293 of 1994 dismissed on 17-10-95. Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX at 1979)-- —-S. 3 (a) & 8 (3)--Recovery of decretal amount as arrears of land revenue- Suit decreed-Appeal dismissed-Recovery proceedings initiated by Assistant Commissioner-Objection to-Contention that U/S. 25-B, onjy those loans and advances could be recovered as arrears of land revenue which were given for agricultural purposes-Above contention is totally misconceived-Held : By virtue of amendment brought by Ordinance ffl of 1994 and Ordinance LXTV of 1994, in Companies Ordinance 1962, besides, loans and advances given for agricultural purposes, any other amount decreed by any court in favour of Banking Company or • financial institution specified in Section 3-A can also be recovered as arrears of land revenue-Petition dismissed. [Pp. 28&29]A Mr. S.M.A. Mehmood, Advocate for Petitioners. Mr. Muhammad Sadiq Khan, Advocate for Respondent No. 1. Date of hearing: 23.5.1995. judgment Nazim Hussain Siddiqui, J. The Petitioners have impugned notice dated 2-8-1994, issued to them by the Respondent No. 2 Assistant Commissioner Karachi, East, under Section 82 of the Land Revenue Act, 1967, directing them to pay Rs. 22.124 Million plus Recovery Charges of Rs. 4,42,481/- within 15 days from the date of said notice. The facts relevant for decision of this Petition are as follows :- The respondent No. 1, United Bank Limited, filed the Suit Nos. 390 & 391 of 1987, under the Banking Companies (Recovery of Loan) Ordinance, 1979, for Rs. 33,20,122.71 and Rs. 1,88,04471.71 respectively. Both these Suits on 4-3-1990 were decreed against the Petitioners. The Petitioners preferred Appeals against the Judgments and Decrees, being High Court Appeal Nos. 65 and 66 of 1990, which were dismissed on 27-4-1993 and 25-2-1993 respectively. Thereafter, the respondent No.l approached the Deputy Commissioner Karachi East, for Recovery of decretal amount as arrears of land revenue. The matter was referred to the Respondent No. 2, who issued the impugned notice. The Petitioners have claimed that no notice, as envisaged under the Proviso of Section 25-B of the Banking Companies Ordinance, 1962, hereinafter referred to as the Ordinance, was issued to them and the advance/loan taken by them from the respondent No. 1 was not for agricultural purposes, as such, the impugned notice is without jurisdiction and illegal. The case of the respondent No.l, as^ disclosed in the Counter Affidavit, is that the Petitioners had not brought to the notice of the Court the amended version of Section 25-B of the Ordinance. According to the respondent, on 11-12-1993 notice of information, as required under Section 25-B of the Ordinance, was given through T.C.S. to the Petitioners, which was returned undelivered to the respondent No. 1 with the endorsement "still closed". It is also the case of the respondent that the Petitioners were informed at their address i.e. the place of their business, as supplied by them to the respondent and as shown by them in Suit Nos. 390/87 & 391/87 and Appeals Nos. 65 and 66 of 1993. The respondent has also pointed out that the Petitioners have shown the same address in this Petition, but suppressed their present address and whereabouts deliberately in order to avoid payment of the huge decretal amount outstanding against them. The respondent has maintained that initially the decretal amount was Rs. 2.25 Crores, but, now, including the interest, the amount must have exceeded rupees Five Crores. "According to the respondent, the Petitioners have shifted to an unknown address and it is veiy difficult to locate them. In order to appreciate the contentions raised on behalf of the Petitioners, it would be advantageous to reproduce Section 25-B of the Ordinance, which is as follows : Section 25-B : Recovery of certain dues of banking companies as arrears of land revenue.-Loans and advances made by a banking company for agricultural purposes and the amounts decreed by any court in favour of a banking company or a financial institution specified in Section 3-A shall be recoverable as an arrear of land revenue as if the banking company were a local authority for the purposes of Section 5 of the Revenue Recovery Act, 1980 (I of 1980). Provided that no sum shall be so recoverable unless the banking company has, by notice in writing informed the debtor, not less than fifteen days before .proceeding to have it so recovered, that he may repay by such instalment as may be fixed in the notice and that action to have the debt recorded as an arrear of land revenue will be taken if he fails to pay any instalment on or before the due date." Mr. S.M.A. Mehmood learned counsel for the Petitioners strenuously argued that the notice, as envisaged by the Proviso of Section 25-B of the Ordinance, was not served upon the Petitioners and this bong a violation of a mandatoiy provisions the entire proceedings thereafter, including issuance of the impugned notice, are illegal and on this ground alone, the impugned notice is liable to be quashed. Learned counsel also submitted in absence of said notice the respondent No. 2 could not nimrmf jurisdiction and the whole exercise done by him is corum non-judice and illegal abinitio. The above contentions have no force. The respondent No. 1 in the Counter Affidavit clearly stated that the notice, in writing, as required by Section 25-B of the Ordinance informing the Petitioners to pay the decretal amount, was issued to them. A copy of said notice is available on record. It is, dated llth December, 1993. Said notice was sent through Courier Service and the Consignment Note No. 5493977-C of Courier Service is on record with an endorsement "still closed". It being so, it cannot be argued that the notice was not sent to the Petitioners. The disputed feet cannot be investigated. Even if there is a possibility of difference of opinion, still the issue of disputed facts cannot be probed, while exercising jurisdiction under Article 199 of the Constitution. . Learned counsel next argued that under Section 25-B of the Ordinance only those loans and advances could be recovered as arrears of land revenue, which were given for agiicultural purposes. He submitted that the amount in question was not advanced to the Petitioners for the said purpose, as such, it could not be recovered as land revenue. Above contention is totally misconceived. By viitue of amendment brought by Ordinance No. Ill of 1994 and Ordinance No. LXTV of 1994 in the Companies Ordinance, 1962, besides, the loans and advances given for agricultural purposes, any other amount decreed by any Court in favour of the Banking Company or a Financial Institution specified in Section 3-A, can also be recovered as arrears of land revenue. It is an admitted fact that the two Suits mentioned above have been deci'eed in favour of the respondent No. 1 and the Appeals preferred against them have been dismissed. Thus, the rights of the parties have been conclusively determined. It being so, the respondent No. 1, in view of the amendment referred to above, read with ub-section 3 of Section 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979, is entitled to recover the decretal amount, outstanding against the Petitioners as land revenue. In fact, it is at the option of the respondent No. 1 either to recover its dues as land revenue, or in any other appropriate manner. Although, the Petitioners in their Petition have quoted Section 25-B of the Ordinance, they have not mentioned anything about said amendment. In fact, theyquoted unamended Section 25-B of the Ordinance. This Petition was filed on 13-10-1994, while the Ordinance No. Ill of 1994 and Ordinance No. LXTV of 1994 were published in Gazette of Pakistan on 13th January 1994 and 27th September 1994, respectively. Prima facie, it appears to be the case of deliberate mis-representation/concealment of facts on the part of the Petitioners. Exercise of jurisdiction under Article 199 is discretionary in nature. No one can claim the exercise of discretionary power as a matter of right In this case, demonstrably the equity is on the side of the respondent. The Petitioners did not pay the amount as per terms of Agreement, nor they paid it after the aforesaid two suits were decreed and appeals were dismissed, nor they, now want to liquidate their liability. Manifestly, they are only interested to avoid payment of the amount outstanding against them, which now have exceeded to more than Rupees Five Crores. They have not come to the Court with clear hands. The amount outstanding against them is a Public Money and on that score also they are not entitled to any leniency. Accordingly, we do not find any merit in this Petition and the same is dismissed. (S.R.) Petition dismissed.

PLJ 1996 Karachi 29 (DB) PLJ 1996 Karachi 29 (DB) Present: mamoon kazi and nazim hussain siddiqui, JJ. SAJJAD HUSSAIN ZAIDI-Petitioner versus FEDERATION OF PAKISTAN, through Secretary Communication, and 2 others-Respondents Constitution Petition No. 1729 of 1995, dismissed on 7.9.1995 Maintainability- —-Employees of K.P.T~Promotion of Respondent No. 3 as Assistant Port Fire Officer—Challenge to-Whether constitution petition is maintainable- -Question of--Supreme Court has held that no employee has vested right in promotion-Record shows that petitioner has been duly considered by Selection Board on merits and then senior most person has been promoted-Selection of a person against a particular post, is discretion of concerned Selection Board or Committee-All that is to be seen is whether such discretion has been exercised judiciously and not arbitrarily-Held: Petition is not maintainable-Petition dismissed. [Pp. 30&31] A & B 1995 SCMR 660 distinguished. PLD 1978 Karachi 703 rel. Ch. RashidAhmad, Advocate for Petitioner. Date of hearing: 7.9.1995 order Mamoon Kazi, J.--1. Granted subject to all just exceptions. 2. This petition has been filed by the petitioner seeking the following relief :- "It is, therefore, prayed that this Hon'able Court may be pleased to hold and direct that the petitioner is entitled for the promotion to the post of Assistant Port Fire Officer in view of his selection on merit by the Selection Committee (Constituted under Section 17(3) of the KPT Act) and also to hold and declare that promotion given to respondents No. 3 is illegal, mala fide, unlawful, without lawful authority." The main grievance of the petitioner is that the respondent No. 2 had to fill the post of Assistant Port Fire Officer and this post was to be filled by way of promotion on the basis of seniority cum-fitness. The contention of the petitioner is that he is better qualified and, therefore, is entitled to promotion over and above the respondent No. 3 who has been granted such promotion. The facts as disclosed in the petition are that the respondent No. 3 was appointed against the post from which he has been promoted, on 30.9.1971 while the present petitioner is his Junior by nine years. The petitioner has also placed on record a statement showing the particulars of the two candidates wherein also it is shown that the post is to be filled in on the basis of merit and that the respondent No. 3 ranks senior to the 'petitioner, In these circumstances, it can hardly be said that the petitioner has not been considered for promotion. The counsel for the petitioner has further submitted that the respondents have violated the provision of the regulations by not allowing the petitioner an opportunity of being heard. He has further submitted that in such circumstances where the rules have been violated, the petitioner can maintain the present constitutional, petition. Reliance is placed on the case of Shahid Iqbal v. Government of Pakistan ^ (1995 S.C.M.R. 660). It may be observed that a perusal of the above judgment of the Hon'ble Supreme Court will show that their lordships have also held that no employee has vested right in promotion their lordships have further observed that there is an exception where regulations and policy framed regulating the appointment and promotion has not been complied with. In the present case, this judgment would not be relevant in as much as the record shows that the petitioner has been duly considered by the Selection Board on his merits and then the senior most person has been promoted. In the case of Mutaqi Hassan v. Province of Sindh (PLD 1978 Karchi 703) it has been held that promotion to higher post is not a vested right but all the same, it is the right of incumbent to be considered for promotion. In the present case, admittedly the petitioned has been considered for promotion but then the senior most person has been granted such promotion. Similarly in the case of A Iqbal Qaudri v. Federation of Pakistan in (C.P. No. D-1545/1994) a Division Bench of this Court (Sic) author) it has been held that the superior courts will not substitute themselves for the Selection Board or Selection Committee. Selection of a person against the particular post is discretion of the concerned Selection Board or Committee. All that is to be seen is if such discretion is exercised judiciously and not arbitrarily. In such circumstances, we are of view that this petition is not maintainable, which is accordingly dismissed in limine. 3. Dismissed as infructuous. (ZB) Petition dismissed.

PLJ 1996 Karachi 31 PLJ 1996 Karachi 31 Present: G.H. MALIK, J. DOST MUHAMMAD-Plaintiff versus PAKISTAN STEEL MILLS CORPORATION and another-Defendants Suit No. 260 of 1988, decreed on 31.10.1995 Damages- —Rash and negligent driving by Defendant No. 2-Death of Plaintiffs son is accident--Damages--Claim of--Evidence of P.W.2 has not been successfully challenged and has sufficiently established negligence on part of Defendant No.2--Defendants have not produced any evidence to support plea that accident was caused by negligence of deceased and in fact, Defendant No. 2 has denied that any accident had occurred at all-­ Defendant No. 2 being driver of bus belonging to Defendant No. 1, both Defendants are liable to pay compensation to parents of deceased-Held : Having experience to live upto 70 years, Plaintiff and his wife have been deprived of benefit of income of deceased for a period of 25 years and are entitled to recover pecuniaiy benefit amounting to Rs.3,93,536/—Suit decreed. [Pp. 33,34&36] A,B,C,D & E 1990 CLC 515 and 1993 SCMR 1149 ref. Mr. Akhlaq Ahmed Siddiqui, Advocate for Defendants. Date of hearing: 31.10.1995. judgment The plaintiff has filed this suit for recovery of Rs. 3,50,000/-, under the provisions of Fatal Accident Act, 1855. The case of the plaintiff is that his son Bakht Rehman died on the 7th December, 1986, as a result of the accident with a bus belonging to the defendant No. 1, which was, at the time of the accident, being driven by the defendant No. 2, who was a driver of the defendant No. 1. It is alleged that the death of the deceased was caused by negligence, default and wrongful act of the Defendant No. 2 who was a servant of the defendant No. 1. It is further alleged that the deceased, at the time of his death, was earning Rs. 950/- per month; and that he was in.good health. Defendants No. 1 & 2 filed separate written statements taking same pleas and admitting that the defendant No. 1 was the owner of the bus in question and the defendant No. 2 was the driver of the defendant No. 1 at the time of the accident; and alleging, in para 3 of their written statement, that "at the material time the said bus was moving at a veiy slow speed. The deceased who was on the embankment of the drain, much higher than the road, holding a big size goat, suddenly ran down the embankment in speed and hit near the rear wheel of the said bus receiving injury in the head". It is further alleged that the death of the deceased was caused by his own neglect, default and wrongful act. The remaining allegations in the plaint with regard to the earning capacity of the deceased and the claim of the plaintiff have been denied. Upon pleadings of the parties the following issues were settled :- 1. Whether the death of the deceased Bakht Rehman was caused by rash and negligent driving of the Bus No. 846- 915, on 7.12.1986 by the defendant No.2, the driver/servant of the defendant No. 1 the owner of the said bus. 2. Whether the defendants are liable to pay compensation/ damages to the plaintiff and other dependent legal heirs as claimed jointly and severally ? 3. Whether the plaintiff is entitled to cost and interest as claimed ? 4. What other relief or reliefs the plaintiff entitled to ? 5. What should the decree be. I have examined the record and proceedings in the suit and heard the learned counsel for the parties; and may findings on the issues are as follows :- Issue No. 1. • On this issue the plaintiff has examined Sher Khan (PW. 2) who, in his examination in chief, has stated that on the 7th December, 1986, Bus No. 846-915 was travelling of Mirza Adam Khan Road from Meeran Naka towards Bihar Colony and, as it approached a place opposite Qazi Clinic, it was travelling at great speed. He has further deposed that the deceased and he were, at that tiihe, standing on the footpath and the bus knocked down the deceased who came under the front wheels of the bus; and that the deceased died instantly as a result thereof. The witness denied the suggestions in the cross examination that he did not witness the accident and that he had been offered money to give evidence. There is no crossexamination challenging the version of the witness; but an attempt was made to impeach his credit. Mr. Siddique submits, apparently seriously that because the witness admitted that he had appeared to give evidence at the instance of the counsel for the plaintiff and because he did not take any photograph of the deceased or the bus, and because he did not arrest the driver or lodge an FIR, his evidence cannot be believed. The submission is utterly without merit. I see nothing wrong in a person coming forward to give evidence at the instance of a party to the suit and, in fact, except in the cases of some reluctant witnesses who have to be summoned, that is quite usual; and the submission that the omission on the part of the witness to take photographs and to arrest the driver of the bus somehow rendered his testimony doubtful is indeed extraordinary. I fail, to understand how a person witnessing an accident by chance is expected to be equipped with a camera and to immediately start taking photographs of the victim of the accident or of the bus and then to go and lodge and FIR. The evidence of the witness has, in the circumstances, not been successfully challenged and has sufficiently established negligence on the part of the defendant No. 2. Mr. Akhlaq Ahmad Siddiqi then submits that the plaintiff, having admitted that he did not see the accident, his version thereof cannot be relied , on. In that submission, he is, of course, right; and the plaintiffs evidence on that point being hearsay is not, by itself either admissible or sufficient to prove the negligence of the defendant. The negligence, however, has been proved by the witness Sher Khan. It may, in this connection be noted that the defendants have not produced any evidence to support the plea that the accident was caused by the negligence of the deceased; and, in fact, the Defendant No. 2 in his evidence took an about turn and denied that the accident had occurred at all. His evidence, apart from contradicting his express plea in the- written statement, was obviously false Issue No. 2 In view of the finding as to the negligence and in view of the admitted fact that at the time of the accident the defendant Nd. 2 was driving the bus in the course of his employment as a driver of the defendant No. 1, both the defendants are liable to pay compensation to the Plaintiff and to Deval Bal, the mother of the deceased. As for the amount of compensation, it is in evidence that the deceased was employed by Diamond Rubber Mills and that he was earning Rs. 974/- per month; and further that after three years he would have earned Rs. 18000/- per month. That evidence has not been questioned although some attempt was made by the defendants to show that the employment was temporary. With regard to this period for which the - plaintiff and his wife have been deprived of the pecuniaiy benefit by the death of the deceased, the national identity cards of the plaintiff and his wife (Exhs. 5/2 and 5/3 respectively) show that at the time of the accident, they were respectively, 51 and 45 years old; and, on the basis that they can expect to live upto the age of 70 years, they have been deprived of the benefit for a period of 25 years. They have, thus, been deprived of, and are entitled to recover, pecuniaiy benefit amounting to Rs.3,93,536/- worked out as follows :- Rs. 35,064.00 '? Rs. 4,75.200.00 Rs. 95,040.00 Rs. 6,05,304.00 Income at the rate of Rs. 974/- per month for three years .......... Income at the rate of Rs. 1800/- per month for 22 years... ........... Increase at 20% of Rs.4,75,200/,- Gross Income Deduction of 1/3 of gross income for personal expen­ses of the deceased. Money received by plaintiff from Insurance company. Less: Rs. 2,11.768.00 Rs. 2,01,768/-Rs. 10.000/- Rs. 3,93.536.00 Issue No. 3 The Plaintiff is obviously entitled to costs of the suit. As to interest, Mr. Siddiqui submits that it should be awarded from the date of the decree and not from the date of the suit. He has, however, advanced no reason in support of his submission; and I am of the view that the plaintiff is entitled to interest, from the date of the suit. Issue No. 4 Mr. Nasir Maqsood submits that in the circumstances of the case, the plaintiff is entitled to compensatory costs. The accident occurred on the 7th December, 1986 and the suit was filed on the 6th December, 1987. The defendants, in their written statement, took the plea that the accident was caused by negligence of the deceased but that plea was abandoned when evidence came to be recorded; and the defendant No. 2 stated in his evidence that no accident had occurred. The glea in the written statements of the defendants was, therefore, either false of vexatious to their knowledge; and, in consequence of that plea the plaintiff and his wife have been deprived until now of what was justly due to them. The conduct of the defendants, in the circumstances, has been quite reprehensible. Such conduct has been condemned by the Supreme Court and this Court. In Pakistan Steel Mill Corporation v. Nazir Hussain Shah (1990 CLC 515), a Division Bench of this Court, after referring to several cases from the Indian jurisdiction, observed :- "In the above cases, inter alia, it has been observed that the public body should resist the temptation to litigations like cantankerous litigants for insignificant amount, raising technical pleas and that it should not compel the handicapped to fight litigation against his formidable adversary. There cannot be any cavil to the propositions of law propounded in the above cited cases. We are also inclined to hold that a public functionary particularly, in Pakistan which is an Islamic State is enjoined not only by our Constitution but also by tenets of Islam that it should act in aid of advancing the cause of justice and not to frustrate or defeat it. It is indeed a deplorable act when a public functionary in order to resist a genuine claim arising out of fatal accident spends considerable amount on litigation instead of setting the matter with the dependants of the deceased." The present defendant No. 1 was a party to that case which had also arisen out of a fatal accident. Its conduct there was deplored by this Court but obviously the defendant No. 1 has remained immune to the criticism. Again, in Karachi Transport Corporation v. Latif-ur-Rahman (1993 S.C.M.R. 1149), it was observed by the Supreme Court :-. "We may also observe that a Government Department/ functionaiy is not expected to raise frivolous pleas in an action brought by a citizen for recovery of his lawful claim, with the object to deny it or to prolong litigation in respect thereof. Such a nrartirp is tn hp rlpnrpr.-irprl in cti-nnorott terms. The officials responsible for the same should be made accountable for their above uncalled for and unjustified approach, particularly in cases arising out of fatal accidents, the approach of the Government Departments/functionaries should be human and pragmatic, all efforts should be directed to ensure that an aggrieved person gets his reasonable, admissible claim promptly, without loss of any time." It does not appear that any functionary of any Government Department has been made accountable for indulging in false and vexatious litigation to the detriment of the citizens of this country; and it appears also that it would be too optimistic to expect that such an action will be taken in the foreseable future. In the meantime litigants continue to suffer on account of false, frivolous and vexatious defences set up by such departments/functionaries; and there is no method of adequately compensating them for the misery and financial burden and loss which the prolonged litigation entails. It is true that Section 35-A of the Civil Procedure Code provides for payment of compensatoiy costs; but in many cases even the maximum amount of such costs is not adequate to compensate the litigant who has been subjected to prolonged, false, frivolous and vexatious -litigation. The limit of Rs. 25,000/- set by Section 35-A therefore, needs to be raised substantially. In the present case, the' plaintiff and his wife are poor people and have lost their young son in consequence of the fatal accident caused by the negligence of defendant No. 2 who is a driver of defendant No. 1. The defendant No. 1, instead of admitting the just claim of the plaintiff, close to contest the claim, without a shadow of justification, and set up an obviously false defence; and even that defence was abandoned at the trial. Meanwhile, the plaintiff continued to suffer for almost nine years. In the circumstances, I consider that he is entitled to the maximum amount of compensatory costs allowed by law. I, therefore, hold that the plaintiff is entitled to Rs. 25,000/- by way of such costs. Issue No. 5 The Plaintiff and Mst. Deveal Bal are entitled to decree for Rs. 3,93,536/-. They have, however, claimed only Rs.3,50,000/-. The suit is, therefore, decreed against the defendants jointly and severally in favour of the plaintiff and Deval Bal for Rs.3,50,000/- with interest thereon at the rate of 14% per annum from the date of the suit till payment and costs of the suit; and for Rs. 25.000/- on account of compensatoiy costs. The decretal amount shall be shared equally by the plaintiff and Mst. Deval Bal. (ZB) Suit decreed.

PLJ 1996 Karachi 37 PLJ 1996 Karachi 37 Present: abdul latif qureshi, J. ABDUL SATTAR-Appellant versus ALLAH DIYA--Respondent F.R.A. No. 386 of 1994, accepted on 22.10.1995. Sind Rented Restriction Ordinance, 1979 (XVII of 1979)-- —-S. 21 --Ejectment of tenant-Order of-Challenge to-Default in payment-­ Ground of-Tenancy is admitted by appellant as such burden lies on tenant to prove that he has not committed default in payment of rent-It is also admitted by him that he is in occupation of rented premises since 1968 and has not paid rent to Landlord since then-Reason for not paying rent to respondent as advanced by appellant is that no one came to collect rent and he did not know address of appellant and on receipt of notice he immediately deposited rent in court-it is not possible to believe that tenant did not know address of his Landlord-Even otherwise sub-section (3) of Section 10 provides that rent can be deposited with Controller within whose jurisdiction premises is situated-Tenant did deposit rented amount on 15.11.1992 which he could have done earlier-Held: Ejectment orders maintained on point of default-Appeal dismissed. [Pp. 3S&39] a; B, C & D. Mr. All Muhammad F. Shethi, Advocate for Appellant. Date of hearing: 22.10.1995. judgment Appellant being aggrieved of the order passed by learned VII Senior Civil Judge and Rent Controller, Karachi South ordering his ejectment ha's preferred this appeal. Briefly the facts are that respondent filed ejectment application alleging therein that appellant who is his tenant on monthly rent of Rs. 18/- has defaulted in the payment of rent and also that he needed the premises for his personal bonafide use. The appellant resisted the ejectment application and averred that he has not committed default but as soon as he received notice from the respondent he started depositing rent in MRC No. 17/1992 in the Court. He further averred that he did not know the residential address of the appellant as such, he could not send the rent through money order and deposited the same in the Court. It was further denied that the respondent required the premises for his personal bonafide needs as two premises belonging to the respondent are lying vacant in the same compound. ^ The appellant examined himself in the Court so also the Respondent. A letter dated 8-8-1992 of the Advocate of the Respondent addressed to the appellant was produced as Ex. "A" whereas another letter addressed by the Appellant's Advocate to the Respondent's counsel dated 26-11-1992 was also produced as Ex. "B". The learned Rent Controller set the following points for determination:- 1. Whether opponent is defaulter? 2. Whether applicant needs disputed tenement bonafidely in good faith for his Use and use of his children? 3. What should the decree be Points No. 1 and 2 are decided by the rent Controller in affirmative, as such, the impugned order was passed ordering the appellate to vacate the premises within 30 days. On 12-3-1995 it was ordered by the court that as the affidavit in evidence of the respondent does not fully reflects on his personal requirement it was necessary to further examine him under Section 21(3) of Sindh Rented Premises Ordinance. So, his further statement was recorded on 3-9-1995 and it was ordered that evidence of the appellant be recorded, if he so desired. As such, on 22-10-1995 evidence of appellant was also recorded. Heard the learned counsel for the parties. Tenancy in this case is admitted by the appellant, as such, burden lies on the tenant to prove that he has not committed default in payment of rent, it is also admitted by him that he is in occupation of the rented premises since 1968 and has not paid rent to the landlord since then. The reasons for not paying rent to the respondent as advanced by the appellant is that no one came to collect the rent, and he did not know the address of the —«" ttppellant, and on receipt of notice he immediately deposited the rent in the Court. For the first time the rent was deposited in Court on 15-11-1992 amounting to Rs. 648/- which would be the rent for last three years. Second time on 31-1-1993 amounting to Rs. 216/- and third time on 13-12-1992 amounting to Rs. 216/- which would also be for one year in each case. Having admitted default in cross-examination as well as deposit of rent in lumpsum for last three years on 15-11-1992, it is to be seen whether the reasons advanced by the appellant are cogent and legal. No tenancy agreement has been produced by any of the party and in that case if the rent .is not paid within sixty days of the due date for payment, default is committed and the tenant can be ejected on this ground. The landlord is not under any obligation to come to the tenant for collection of rent It is not possible to believe that the tenant did not know address of his landlord. Even otherwise sub-section (3) of Section 10 of Sindh Rented Premises Ordinance provides that rent can be deposited with the Controller within whose jurisdiction the premises is situated. In the instant case the tenant did deposit the rental amount on 15-11-1992 which he could have don earlier also. It is also admitted by the appellant that he did not. give notice to the respondent regarding the deposit of the rent in the Court as no address was available to him. If the reason for not paying the rent earlier or depositing in the Court, is that appellant did not know address of the respondent/landlord then how he has deposited the rent after receipt of notice. Receipt of notice U/S. 10 Sindh Rented Premises Ordinance is necessary only if there is change of ownership of the premises, but in the instant case there is no change in the ownership, as such, notice was not necessaiy. First notice to the appellant is dated 8-8-1992 and the latter of the appellant's advocate dated 26-11-1992 acknowledges the receipt of notice is dated 10-10-1992. The appellant did not clarify as to when he had received the notice on the time for depositing the rent within 30 days start from the date of receipt of the notice. In these circumstances, the trial Court was justified in holding that the appellant has committed default in the payment of rent and as such liable to be ejected. It has been held in Muhammed Mujeebullah Siddiqui vs. Kamaludin (1992 MLD 1150) that the relationship of landlord and tenant having been established, non payment of any rent by appellant to respondent from the very inception of tenancy would render appellant liable to eviction on ground of default. Same view is taken in cases Feroze Ahmed vs. Mst. ZohraKhatoon (1992 C.L.C. 735), Abdul Rasheed vs. Hanifur Rehm'an (1994 MLD 955) and Muhammad Subhart vs. Bilquees Begum (1994 S.C.M.R. 1507). As far personal bonafide need of the respondent is concerned, the appellant in his evidence stated that there are four vacant houses belonging to the Respondent in the same compount and three in Korangi are occupied by him and his family. In his deposition the respondent has admitted that two of the houses are in occupation of tenants, and matter is in litigation. This leaves two houses lying vacant in possession of the respondent and the same can be occupied by the respondent and his family. There is no evidence to the effect that these houses will not be sufficient for accommodating respondent and his family. In view of the above fact that there are two other vacant houses belonging to the respondent where the family of the respondent can be accommodated, the need of the respondent for the disputed premises is not bonafide, the findings of the Rent Controller regarding bonafide need of the respondent is not based on proper appreciation of the evidence. As the appellant has committed default, he is liable to be ejected from the premises. As such, ejectment order of the Rent Controller is maintained on the point of default and appellant is directed to vacate the premises within sixty days of this order. (B.T.) Appeal dismissed.

PLJ 1996 Karachi 40 PLJ 1996 Karachi 40 Present: hamid alt mirza, J. EJAZ AHMAD MIR-Appellant versus Mrs. SHAMSA KHATOON-Respondent. F.R.A. No. 571 of 1992, dismissed on 17.10.1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —Ejectment of~Tenant--Personnal bonafide need-Ground of-Suit decreed-Challenge to-Nothing has come on record that respondent was having any other house or portion except first floor consisting of three bed-room and drawing-dining room where she could accommodate their children-Evidence adduced by respondent/landlady has gone unchallenged-Respondent/landlady cannot be deprived to have possession of premises for all time to come which once was rented out by her-Contention that respondent should have sought ejectment of another tenant has on merit and it is choice of owner/landlady to have any portion of her premises for her personal need-Held: There is nothing illegal or improper with judgment of learned Rent Controller- Appeal dismissed. [Pp. 43 to 45] A & B Mr. M. Umar Qureshi, Advocate for Appellant. Mr. K.A. Wahab, Advocate for Respondent. Date of hearing: 17.10.1995. judgment This is First Rent Appeal under Section 21 of the Sindh Rented Premises Ordinance 1979 (hereinafter called .Rent Ordinance) directed against an order dated 17-11-1992 passed by learned Senior Civil Judge & Rent Controller of Court No. II, Karachi-Central, in a Rent Case No. 331/91, Mst. Shamsa Khatoon v. Ejaz Ahmad Mir, whereby ejectment application filed by the respondent/landlady was allowed and the appellant/tenant was ordered to vacate the premises in question within 45 days from the date of impugned order, hence the present appeal. Brief facts of the case are that the respondent/landlady filed ejectment application under Section 15 of the Rtmt Ordinance against the appellant/tenant in respect of the portion of bungalow in his possession on the ground that respondent/landlady required the premises for herself and for the use and occupation of her husband and children in good feith and that the appellant/tenant has committed default in payment of water and conservancy charges. The appellant/tenant filed written-statement wherein he denied that the respondent/landlady's requirement was riot based on good faith but was malafide one as she wanted to enhance the rate of rent beyond the terms of the agreement and further that she was already in occupation of sufficient accommodation as to her needs. On the pleadings of parties, learned Rent Controller settled the following issue :- (1) Whether the applicant requires the case premises for herself as well as for the use and occupation of her husband and children in good faith ? (2) Whether the opponent has defaulted in payment of water and conservancy charges ? (3) What should the order be ? The respondent/landlady filed affidavit-in-evidence of Dr. Syed Hamid her husband and attorney who produced a photo-copy of power of attorney E» A/1 and photo-copy of lease agreement Ex. A/2, notice to the Advocate of appellant/tenant Ex. A/3(a), postal receipt Ex. A/3(b) and A/D receipt Ex.A/3(c), notice in urdu sent by the respondent/landlady to appellant/tenant Ex.A/4, receipt alongwith note Ex. A/5 of the respondent, eleven payments challan in respect of water and conservancy Ex. A/6-1 to A/6-11. Appellant/tenant filed his affidavit-in-evidence and produced one letter Ex. A in Urdu and seven photo-copies of rent receipts deposited in the office of Controller as Ex. B/l to B/7, notice dated 24th April, 1991, sent to respondent/landlady by the Advocate of the appellant/tenant Ex.B/8, photo­ copy of telegram of counsel for appellant/tenant Annexure 'C', notice dated 21-3-1991 from the advocate of the appellant to respondent/landlady Annexure 'D'. Parties were cross-examined at length by the learned counsel of the respective parties. After recording the above evidence and hearing the learned counsel for parties, impugned judgment of eviction was passed against the appellant/tenant on the only ground that the respondent/landlady required the portion in possession of the appellant in good faith. I have heard learned counsel for parties and perused the record and proceedings of the case and the case law cited by the respective counsel for parties. Mr. Muhammad Umer Qureshi, learned counsel for appellant, has referred to tenancy agreement dated 24th of September 1983 executed between the parties where the details of portion leased out to appellant/tenant has been stated and also referred to para-9 of the said agreement where after the expiry of lease period of 12 months, option was given to the appellant/tenant for renewal of another period of 12 months or part thereof subject to payment of advance rent and annual increase by five percent or Rs. 100/- per month. He has also referred to para-7 of ejectment application where the respondent/landlady has given details of her children for whom she would require the portion asked for in possession of the appellant/tenant. He has further argued that the learned Rent Controller has ordered the ejectment of the appellant/tenant on the ground that the children of the respondent/landlady who were in America used to visit occasionally to the respondent/landlady, therefoi'e, she would be entitled to have the possession of the premises in dispute under the law which need could not be termed to be in good faith. Learned counsel has further argued that as per para-2 of ejectment application, it would appear that there was another protion on the ground floor which was either in possession of the respondent/landlady or was in possession of some one else but the said fact was suppressed by the respondent/landlady hence, she would not be entitled to have the possession of premises in dispute. He has also referred to crossexamination of respondent/landlady and the written-statement. Learned counsel has argued that the category 'D' of plot consists of 1000 Sq. yards. out of which half of the round floor was in possession of the appellant/tenant and the remaining half was in possession of another tenant which fact was disclosed in the cross-examination of the respondent/landlady while the entire first floor was in possession of the respondent and the accommodation of first floor was more than sufficient for the need of the respondent/landlady, her husband and her children, therefore, the respondent/landlady was not entitled to possession of disputed premises in good faith. Learned counsel for the appellant has admitted that he has not challened the fact of occasional visits . of the children of the respondent/landlady to her and their stay in the bungalow and the fact that the said children were residing in America and other places. However, the learned counsel argued that said occasional visits of the children would not bring the requirement of the respondent/landlady to be one of good faith. He has placed reliance upon Jamilur Rehman Vs. Ghulam Mehboob (1988 MIX) 2718), Mst. Begum Jan v. Abdul Rasool (1984 CLC 755) and Mst. Zarina Khawaja vs. Agha Mahboob Shah (PLD 1988 SC 190) in support of his contentions. He in the end has prayed that the case be remanded on the ground that the inspection be made to find out as to how much accommodation was in possession of the respondent. Mr. K.A. Wahab, learned counsel for the respondent, has argued that there is no need for inspection of the bungalow in view of the fact that in para-3 of ejectment application stated about the accommodation with the respondent/landlady and the said fact has been admitted in the writtenstatement where the respondent was admitted to be in possession of five rooms including drawing and dining room while in the cross-examination the appellant/tenant stated that there were six rooms in the occupation of the respondent, hence there was no ambiguity about the number of rooms and accommodation available with the respondent hence no remand in the circumstances could be ordered on that account. He has further argued that one son and two daughters of the respondent are married, one son is residing in USA while remaining eight members reside in the portion in occupation of the respondent/landlady whereas there were only five bed­ rooms in the portion in possession of the respondent which accommodation was insufficient for the need of the respondent and her children and husband keeping in view that one niece has also been residing with them though the learned counsel admitted that she could not be termed to be dependent under the law upon the respondent. He has further argued that there has been no suppression of the fact and all the facts have been stated and that another tenant has been in occupation of the said portion prior to the occupation of the appellant and further it was prerogative of the landlady to have the portion of her choice of the bungalow. He has further argued that option to renew the lease with the lessee, i.e. the appellant was only for one year and further, the lease agreement was not registered therefore it could not be termed to be a lease in perpetuity therefore the appellant/tenant could not compel the respondent/landlady on that account not to seek his ejectment and to allow him to continue to reside there in the said portion and that it would not disentitle the respondent from evicting the appellant. Learned counsel of the respondent has further argued that the respondent/landlady has proved her bonafide need in good faith and has also proved that she was having insufficient accommodation and the evidence adduced by the respondent/landlady was consistent with her pleadings therefore the requirement in good faith has been proved hence the impugned judgment passed by the learned Rent Controller was legal and called-for no interference in this appeal. He has placed reliance upon Muhammad Bashir vs. Muhammad Shafi and others (1984 CLC 681) and Mrs. Rehana Abrar vs. Imamuddin Malik (1989 CLC 616) in support of his contentions. The main contention of learned counsel for appellant/tenant is that the occasional visits of the children of the respondent to her from abroad would not entitle her to the eviction of the appellant as the said need for the said children would not be bonafide one. It is admitted by the appellant/tenant that the family of the respondent consist of eleven members excluding the niece, out of whom one son and two daughters are married and one son was studying in USA which would mean that four persons were not permanently residing with the respondent while the seven excluding the niece were residing with the respondent/landlady in the portion consisting of three bed-rooms excluding the drawing-cum-dining room. Mr. Umer Qureshi, Advocate for the appellant, was called upon to explain as to how the respondent would accommodate her children if they come from abroad to their parents, should the parents irfake arrangements for their stay in the hotel or somewhere else or the parents should shift to some other place or they should confine all the permanent residents in one room and allow the children who visit them occasionally in the rest of the two rooms but Mr. Umer Qureshi could hot explain and could not give satisfactory reply to the said question put to him. It would be strange to restrict the respondent/landlady not to keep and allow her children to stay with her who occasionally visit her from abroad. In fact, the children come to see and meet their parents and they would not like to be away from their parents when they come to their own country from abroad. The occasional visit of the children of the respondent cannot be said that it would reflect adversely to the bona fide need of the respondent considering that three bed­ rooms would not be sufficient to accommodate to permanent resident of the first floor and the other children who occasionally would come to their parents to stay with them. Nothing has come on record that the respondent was having any other house or portion except the first floor consisting of three bed-rooms and drawing-dining room where she could accommodate their children. The evidence adduced by the respondent/landlady has gone unchallenged. The appellant's learned counsel has admitted the version of the respondent as disclosed in the affidavit-in-evidence as well as in the cross-examination therefore there would be no justification to refuse the right of respondent to seek eviction of the appellant from the disputed premises which the Rent Ordinance has provided considering that respondent has proved her need not be bonafide one. The mere fact that option for one year more was given to the appellant/lessee subject to enhancement of rent under the law could not mean that all the time to come the respondent/landlady would not be entitled to get the possession of the premises from the appellant even when she would require the same in good faith considering also that the said option was for further period of one year which period also expired by the end of 1985. The respondent/landlady cannot be deprived to have the possession of the premises for all the time to come which the once was rented out by her. The next contention of the learned counsel for appellant is that the respondent should have sought ejectment of another tenant who was in occupation of another portion on the ground floor. The contention has no merit as it is the choice of the owner/landlady to have any portion of her premises for her personal need. There are number of decisions of Superior Courts that it is the prerogative of the landlady or landlord to have the premises of her/his choice for her or his use and such right of choice is not with the tenant. Reference is made to Mrs. Rehana Abrar vs. Inamuddin (1989 CLC 616) and Haroon Kassam v. Azam Suleman Madke (PLD 1990 SC 394). The facts of decision cited by the learned counsel for the appellant are distinguishable to the facts of the instance case. In Jamilur Rehman vs. Ghulam Mehboob (1988 MLD 2718) the landlord was found to be in possession of quite sufficient accommodation to meet the requirement of family therefore his need was found not to be bonafide. In the instant case, it has been held that the "accommodation in possession of the respondent/landlady was not sufficient to accommodate her family members out of whom seven permanently resides on the first floor while four members of family occasionally visit the respondent. In the circumstances, the said authority has not application to the instant case. In Mst. Begum Jan vs. Abdul Rasool (1984 CLC 755) case, the landlady has falsely stated that she was widow at the time of filing of ejectment application in order to gain the sympathy of Court and thereby made misrepresentation and it came in evidence that landlady was putting with some other relations and not with her daughter and the averments made in the application were found to be vague therefore need of landlady was not considered to be bonafide. So far the last citation Mst. Zarina Khawaja vs. Agha Mehboob Shah (PLD 1988 SC 190), there is no cavil about the principle laid down in the said decision. The facts of instant case are different and the clause regarding option of renewal of lease pertained to one year only which period expired by the end of 1985 therefore principles regarding the terms of the agreement on its termination laid down in the cited case law would not be attracted. No other plea has been raised before me. I do not find anything illegal or improper with the judgment of the learned Rent Controller therefore no interference is called for. Consequently, appeal has no merits which is hereby dismissed. The appellant/tenant is directed to hand over the vacant possession of the premises in dispute within two months subject to payment of rent to the respondent or be deposited in the office of Rent Controller. (B.T.) Appeal dismissed.

PLJ 1996 Karachi 45 PLJ 1996 Karachi 45 Present: hamid alt mirza, J. ZAKIR HUSSAIN-Appellant versus MASOOD AHMED ANSARI-Respondent. First Rent Appeal No. 467/94, decided on 6-11-1995 Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —Ss. 21 & 16-Tenent-Ejectment of--Suit for~High Court as an Appellate Authority and appeal being in continuation of ejectment application, could exercise powers under Section 16 of Sindh Rented Premises Ordinance in a fit cases and non-compliance of order passed by High Court would attract penal provisions of Sub-Section (2) of Section 16 of the Act-Respondent/tenant has not made compliance of order passed by High Court-There has been intentional non-compliance of Courts order-­ Held: Defence of tenant is struck off-Order accordingly. [P. 48] A Mr. Badrul Alam, Advocate for Appellant. Mr. G. T. Dehrani, Advocate for Respondent. Date of hearing: 6-11 -1995. ORDER An Application CMA No. 502/95 dated 17-4-1995 under Section 16 (2) of the Sindh Rented Premises Ordinance is fixed today for hearing. I have heard the learned counsel for the parties and perused the order dated 30-1-1995 passed by this Court and report of the Nazir of the Civil Court on the reverse page of CMA No. 502/95. Mr. Badrul Alam, counsel for the appellant, states that as per order dated 30-1-1995 the respondent/tenant was directed to deposit balance of amount of Rs. 19,000/- towards the arrears of rent in the office of the Controller upto 28-2-1995 and to deposit future monthly rent from January 1995 before the 10th of each succeeding month without fail but he respondent has neither deposited the arrears of rent amount Rs. 19.000/ till this date nor has deposited rent from January 1995 as would appear from the report of Nazir dated 18-4-1995 therefore there has been non-compliance of order dated 30-1-1995 of this Court by the respondent hence the defence of the respondent be struck off and the respondent be ordered to put the appellant in possession of the tenement. He has placed reliance upon Mat. Amtullbai Muhammad Alt Vs. M/s. Ibrahim Ghani (1984 CLC 2793); M/s. Crescent Publicity Service Vs. S.M. Younus and others (1980 SCMR 779) and Abdul Sattar Vs. Alt Ahmad (1985 CLC 25) in support of the contention. Mr. G. T. Dehrani, learned counsel for the respondent, has argued that this Court is not competent to pass an order under Sub-Clause (1) of Section 16 of the Sindh Rented Premises Ordinance 1979 as under the said provision it is the Controller who could pass the order in respect of the arrears of rent therefore the non-compliance of order dated 30-1-1995 passed by this Court being in excess of the jurisdiction, the non-compliance of it would not result into the striking off the defence of the respondent hence this application was liable to be dismissed. The respondent has filed counteraffidavit of Masood Ahmad Ansari but in the said affidavit it has not been stated that compliance has been made by the respondent in respect of order dated 30-1-1995 passed by this Court. Section 16 of the Sindh Rented Premises Ordinance 1979 runs :- "16. Arrears of rent. (1) Where a case for eviction of the tenant has been filed, the Controller shall, on application by the landlord and after such summaiy inquiry as he deems fit to make, determine the arrears of the rent due and order the tenant to deposit the same within such period as the Controller may fix in this behalf and further direct the tenant to deposit monthly rent regularly on or before the tenth of eveiy month, until final disposal of the case. (2) Where the tenant has failed to deposit the arrears of rent or to pay monthly rent under sub-section (1), his defence shall be struck off and t the landlord shall be put into possession of the premises within such period as may be specified by the Controller in the order made in this behalf. (3) Where the rent has been deposited under this section, it shall, subject to such order as the Controller may make in this behalf, be paid to the landlord at the conclusion of the case or on such earlier date as may be specified by the Controller." Admittedly, appeal under Section 21 of the Sindh Rented Premises Ordinance is in continuation of the ejectment proceedings filed before the Rent Controller therefore this Court as Appellate Authority would possess the power under Section 16 of the Sindh Rented Premises Ordinance to direct the tenant to deposit the rent as provided in the said provision. Reference is made Mst. Amtullbai Muhammad Ali Vs. M/s. Ibrahim Ghani reported in 11984 CLC 2793 at para-6 of page 2797 learned Judge in Chamber has observed: "From the above cited and discussed cases the following principles of law are deducible : (i) That an appellate Court under the late Ordinance could not have ordered the striking off defence on the basis of the tentative rent order passed by a Rent Controller. (ii) That an appellate Court was competent under Section 13(6) to pass a tentative rent order for depositing of rent and to strike off defence in case of non-compliance of such an order by a tenant. (iii) That an appellate Court is competent to grant an interlocutory relief or to pass an interlocutory order even in the absence of express provision in the relevant law, in an appropriate case, which power is ancillary and incidental to the power to grant final relief. (iv) That an appeal arising out of late Ordinance is in continuation of the original application. (v) That if a statute provides an appeal to an established Court such an appeal shall be regulated by the practice and procedure of that Court in the absence of any contrary express provision in the statute itself. 7. I am inclined to hold that even under the Ordinance an appeal is in continuation of the original proceeding for ejectment before the Rent Controller and that an appellate Court has the power under Section 16 of the Ordinance to pass a tentative rent order. However, at the same time I am also inclined to hold that an appellate Court is not obliged to pass a tentative rent order under Section 16 and in a fit case it can decline to pass such order." In a case M/s. Crescent Publicity Service Vs. S.M. Younus and others (1980 SCMR 779) which was under the repealed West Pakistan Urban Rent Restriction Ordinance, Supreme Court of Pakistan held that High Court was competent to strike off defence of the tenant on his failure to comply with High Court's order in second appeal in respect of deposit, of rent. In Abdul Sattar Vs. Ali Ahmad's case reported in 1985 CLC 25 at page 29 learned Judge in Chamber observed :- "The balance of authority is in favour of the learned counsel for the respondent and as such however pursuasive the contention of the learned counsel for the appellant may appear to be I cannot agree with his contention that the failure to comply the order of deposit would not result in the consequences visualized by Section 16(2) of the Sindh Rented Premises Ordinance 1979. But'in the present case the impact of the decision in these cases would not effect the appellant for the reason that in my opinion there has been no default in complying the order of this Court." In view of the argument advanced and the case law cited, it can safely be said that this Court as an Appellate Authority and the appeal being in continuation of the ejectment application, could exercise powers under Section 16 of the Sindh Rented Premises Ordinance in a fit cases and the non-compliance of the said order passed by this Court would attract 'the penal provisions of sub-section (2) of Section 16 of the Sindh Rented Premises Ordinance. In the instance case the respondent/tenant has not stated that he has made compliance of the order dated 30-1-1995 passed by this Court as Appellate Authority therefore there has been intentional noncompliance of this Court's order which 'was passed in presence of the respondent's counsel as such the respondent failed to deposit the arrears of rent and the future rent in terms of the order dated 30-1-1995 passed by this Court therefore defence of the respondent/tenant is struck off with the direction to him to put the appellant into possession of the premises within 30 days subject to deposit of the rent by him for the said period consequently the appeal is disposed off in terms of this order. (M.K.R.) Order accrodingly.

PLJ 1996 Karachi 48 PLJ 1996 Karachi 48 Present: HAMID ALI MlRZA, J. NISAR AHMED and another-Appellants versus SHARAFULLAH-Respondent "R.F.A. No. 538/1989 accepted on 1-11-1995. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)- I —Ss. 21 & 13--Tenant-Ejectment of-Suit for-Dismissal of-Challenge to-- It stood proved from documentary and oral evidence that rent was not deposited when it became due-Not a single rent receipt was produced by respondent/tenant and withheld material evidence whereunder adverse inference would be drawn that if it would have been produced would have gone against him~Respondent in affidavit-in-evidence has improved his case-Testimony of respondent/tenant is not confidence inspiring- N Evidence of appellant/landlord is consistent with pleadings and veracity of appellant landlord could not be shaken in cross-examination and no re­ butting evidence has been brought on record by respondent tenant –There is nothing on record that appellant made specific demand about payment of water and conservancy charges from respondent-Held: Appeal is allowed on ground of default- Appeal accepted. [Pp. 54&551A&B , Mr. Munib Ahmed Khan, Advocate for Appellants. M/s A.H. Mirza and Muhammad Afzal, Advocates for Respondent. Date of heari ng: 1 -11 -1995 judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 24.4.1989 passed by learned IV Senior Civil Judge & Rent Controller, Karachi-South in Rent Case No. 208/85 Nisar Ahmed and another Vs. Sharafullah whereby ejectment application was dismissed as per impugned order. Brief facts of the case are that Syed Afzal Ahmed Hyderi previous owner/landlord filed Ejectment Application No. 1685/76 against the respondent on 10.4.1976 under Section 13 of repealed West Pakistan Urban Rent Restriction Ordinance, 1959, on the ground that the respondent has failed to pay rent at the rate of Rs. 34/- from 1.1.1975 plus Rs. 3.91 towards water and conservancy charges since July. 1969 therefore respondent/tenant was defaulter and was liable to be evicted from Flat No. R.C. 7/10-11 behind Edgah Maidan, Karachi . The respondent/tenant filed written statement on 29th October, 1987 stating therein that monthly rent of Rs. 34/- included taxes as well and that he was not defaulter in payment of rent since 1.1.1975 • and further that when Syed Afzal Ahmed Hyderi was owner of the flat in question he made demand of enhanced rate of rent in the month of March, 1976 to which respondent/tenant did not agree and previous owner/landlord refused to accept rent, therefore the respondent/tenant deposited rent, in Misc. Rent Case No. 2004/76 and when Mr. Ghulam Mohiuddin, Predecessor-in-interest of the appellants purchased the property, the respondent deposited rent in the name of appellants in Misc. Rent Case No. 5189/80 till December, 1987. The appellant/landlord filed an affidavit-in-evidence of Fayyaz Mohiuddin who has produced a photocopy of agreement dated 11.8.1987. The respondent/tenant filed affidavit-in-evidence of Mr. Moinuddin attorney of the respondent who has produced (i) special power of attorney executed by respondent in favour of Moinuddin, (ii) photocopy of notice dated 3.6.1976, (iii) photocopy of notice dated 28.6.1976, (iv) certified true copy of letter of an advocate dated 26.8.1980, (v) certified copy of application under Section 13 (6) of Explanation-II, West Pakistan Urban Rent Restriction Ordinance. 1959 as Ex. 0/4, (vi) photocopy of rent receipt for the sum of Rs. 34/- deposited in Misc. Rent Case No. 2004/76 on 14.6.1976, (vii) certified true. copy of application for withdrawal of rent alongwith orcler thereon and thp statement showing the deposit of rent in the court as annexure 0/5. (viiii certified true cop}' of an application under Section 10(3) of Rent Ordinance. 1979 as Ex.0/6 alongwith order dated '20-9 1980 of Controller, (ix) certified true copy of application for withdrawal of rent alongwith order dated 1912-1987 for Rent Controller and the statement showing the deposit of rent and (x) three rent receipts in Misc. Rent Case No. 5189/80 Ex. 0/8 to Ex. 0/10. After recording the above evidence and hearing the learned counsel, the learned Rent Controller dismissed the ejectment application on 24ili April, 1989 as per impugned order, hence this appeal was preferred. I have heard Mr. Muneeb Ahmad Khan, learned counsel fur the appellant, and Mr. Muhammad Al'zaJ Khan, learned counsel for the respondent, and perused the record and proceedings of the case and the case law cited by the parties' learned counsel. Learned counsel for appellant has referred to para-4 of ejectmenl application where the respondent is stated to have failed to pay rent from 1 -1-1975 and water and conservancy charges since July 1969 and in paras 3, A and 5 of counter-affidavit Fayyaz Mohiuddin appellant has corroborated the statement in respect of non-payment of rent made in the ejectment application. Learned counsel has submitted that as per certified true copy of the application for withdrawal of rent dated 4-2-1989 the respondent deposited rent for 14 months amounting to Rs. 496/- from 1-1-1975 i> Marvh 1976 and thereafter an amount of Rs. 34/- was deposited on 14 6 1976 towards the rent for the month of April, 1976. He has contended that appellant's evidence is consistent with the pleadings and the default in the payment of rent for the stated period has been proved as the monthly renl was not paid or tendered within sixty days therefore finding of Rent Controller on the point of default in payment of rent was erroneous in view of evidence on record and the case law. He has argued that the ejectment application on the ground of default in payment of rent which occurred during the period of previous owner/landlord was maintainable and he has further contended that respondent failed to pay water and conservancy charges therefore also there was default in the payment of rent. Learned counsel for the appellant has placed reliance upon <i) Arshad Mahmood Siddiqui Vs. Muhammad Haroon 1984 CLC 1750). <\) Zahoor Ahmad Qureshi Vs. Syed Ijaz Ali Rizvi (1980 CLC 1223>, Muhammad Hafeez Vs. Muhammad Suleman and another (1979 CLC 757) and (iv) Khuda Bux and another Vs. Teekoomal and another (1986 CLC 1923) in support of his contentions. It is stated by learned counsel for the parties that a fresh tenancy agreement was entered into between the parties on 11-8-1982 but the terms of the said tenancy agreement were not acted upon, therefore, the terms of said agreement be not considered for the disposal of this appeal. Learned counsel Mr. Muhammad Afzal Khan, for respondent has f argued that there is no evidence for the default in payment of rent and that respondent was not liable to pay separately water and conservancy charges and further that the appellants/landlords never intimated the respondent about the payment of taxes therefore on the said account as well there could not be default for the payment of rent. He has placed reliance upon Ghayasuddin Ahmad Vs. Abdul Wali (1986 CLC 1513), Mst. Hashmi Begum Vs. Mst. Alya Zohra Begum (NLR 1986 Civil 392) in support of his contentions. The first point which is important to be determined is thai if the rent is not paid to the landlord/owner and ejectment application i.« filed by him against the tenant and during the pendency of such proceedings, the building is sold by him and the new owner is substituted in place of previous owner, whether such ejectment application on the ground of default for non­payment of rent by the successor-in-interest could continue and would be maintainable in law. The point must be answered in the affirmative. Reference is made to case Arshad Mahmood Vs. Muhammad Haroon reported in 1984 CLC 1750 wherein learned Judge in Chamber has held that default committed in respect of rented property being not personal would pass to the landlord alongwith other rights, benefits, advantages under the sale deed and the new owner being successor to the previous landloitJ would - be entitled to prosecute a <-ent application on the ground of default available to him. Learned Single Judge has also relied upon the case Adti Brothers, .Karachi Vs. Amin Art Press and others (PLD 1976 Karachi 53) and Muhammad Ishaque Vs; Abdul Haq and two others (1982 CLC 665). In the instant case the deed of conveyance dated 13-5-1976 registered on 17-5-1976 between Syed Afzal. Ahmad Hyderi and Ghulam Mohiuddin at page 3 of para 1 states that vendors as true and absolute owner of the said property hereby sell, convey, grant, assign, transfer and assure unto the vendee absolutely and for ever the immovable property fully shown and described in the schedule given at the foot of these presents free from all encumbrances, charges, liens, together with.the right, title and interest of the Vendors, in, to and upon the said property and every part thereof and in para 2 at page 4 of the Deed, it states that vendee shall henceforth be sole and absolute owner in possessioh thereof and would enjoy the same rights and privileges in respect of property in question which were enjoyed by Vendors uptil now and vendors shall from time to time and at all times hereafter at the costs of the vendee do or cause to be done all lawful and reasonable acts, things, deeds and matters to make the title of the Vendee good. The above statement made in the deed on record would show that successor of Syed Afzal Ahmad Hyderi has been transferred all rights, title and interest in the premises in question so also tha right to pursue the ejectment case pending against the respondent on the ground of default in payment of rent which being not personal one, would be passed on to the successor/landlord therefore on ground of default in the non-payment of rent the eviction under the law could be ordered in case default is proved to have taken place. Reference is also made to Zahoor Ahmad Vs. Syed Ijaz All (1980 CLC 1223) wherein learned Judge in Chamber observed at page 1226:- "No doubt, in none of these authorities the plea of sub­letting was raised for seeking ejectment of the tenant but the principle which can be deduced therefrom is that if a landlord takes out ejectment proceedings against his tenant on any ground which is not personal to him (original landlord), his successor-in-interest can also prosecute these proceedings. The ground of sub-letting too is not personal to a landlord. I, therefore, agree with the learned Additional District Judge that Mst. Surraya Jabeen could prosecute the ejectment proceedings on the said ground." In Muhammad Hafeez Vs. Muhammad Suleman (1979 CLC 757) case, learned Judge in Chamber held that transferee landlord can seek ejectment on the score of such cause of .action which had accrued in favour of original landlord on the basis of sub-letting. In Khuda Bux and another Vs. Teekoomal and another (1986 CLC 1923) learned Judge in Chamber at page 1926 observed that transfer of ownership during ejectment proceedings on the ground of default committed by the tenant would subsist for benefit of subsequent owner as well. Reference has also made by the learned Single Judge to Abdul RaufVs. Nawab All (PLD 1986 Karachi 117), (1980 CLC 1223), (1979 CLC 757), (PLD 1976 Karachi 53), (PLD 1962 Dacca 600) and (AIR 1955 S.C. (Ind.) 376) in the above cited decision. The facts of the Ghayasuddin Ahmad's case reported in 1986 CLC 1513 are distinguishable to the facts of the instant case as in the case before me the previous owner had filed the ejectment application against the respondent/tenant,on the ground of default and during the pendency of ejectment application the property in question was sold out by him to the father of the present appellants who were then substituted in place of previous owner under the orders of Controller and thereby the default which occurred during the period of ownership of previous owner passed on to its successor-in-interest the father of appellants, hence the case above cited by the respondent's counsel is not applicable. In the circumstances of the case it could safely be said that in case default is proved to have taken place during the period of previous owner then the appellants being subsequent owner landlord could maintain their action for ejectment against the respondent/tenant on the ground of default in the payment of rent and the latter could be evicted from the premises in question. Next point for consideration is whether the respondent/tenant is defaulter in the payment of rent. There is no tenancy agreement between the arties fixing the period for payment of rent therefore the monthly rent would become payable within sixty days after monthly rent becomes payable and the monthly rent would become payable after the expiry of a month. Thus sixty days have to lapse from the period for which rent is payable by the tenant before the landlord can seek eviction of tenant under Section 13 of repealed Rent Ordinance, 1959 as well as order under Section 15<2Hii) of Rent Ordinance, 1979 hence the plea of learned counsel for appellants that rent should be paid within 60 days from the day it was payable has no merit. Reference is made to Syed Shin Gul Vs. HajiAbdtil Mcgid (PLD 1968 Quetta 45). As per rent withdrawal application dated 4-2-1989 filed with this appeal record would show that an amount of Rs. 496/- was deposited on 7-5-1976 which being the rent from 1-1-1975 to March, 1976, there would be default in the payment of rent for the months of January, 1975, to February, 1976, as the rent for the said months was not deposited by the respondent within 60 days after the monthly rent for the above said months became due under the rent laws. In para-3 of the ejectment application the previous owner of the premises in question stated that the respondent/tenant has failed to pay rent since 1-1-1975 and the water and conservancy charges since July 1969 at the rate of Rs. 34/- plus Rs. 3.91 respectively. Fayyaz Mohiuddin in his affidavitin-evidence has stated in paras 3 and 4 that the respondent was liable to pay rent from January 1975 to July 1976 at the rate of Rs. 34/- per month plus Rs. 3.91 towards the water and conservancy charges and that the respondent was defaulter in the payment of rent from 1-1-1975 and water and conservancy charges from July 1969 of the shop in his occupation therefore previous owner had to file ejectment application against him on 10-4-1976 and thereafter respondent made a deposit of Rs. 496/- on 7-5-1976 being the rent from January 1975 to February 1976 and deposited Rs. 34/- for the month of March 1976 on 14-6-1976 in the name of previous owner Syed Afzal Ahmad Hyderi and thereby made wilful default in payment of rent. Appellant Fayyaz Mohiuddin in the cross-examination stated that his father purchased the property when ejectment application was pending before the Controller and that arrears of rent claimed in the case pertained to the period of previous owner and that there was nothing in writing by previous owner permitting the appellant to recover arrears of rent and that he was having no personal knowledge about the rent dealing between the respondent and the previous owner and further the appellant denied that the respondent has not committed default in the payment of rent and the appellant admitted that the respondent was depositing rent in MRC No. 2004/76 and that his father through Mr. Masood Butt, Advocate, served a notice upon the respondent/tenant and appellant denied that the appellant did not make demand for the rent from respondent/tenant. In the entire cross-examination of appellant there is no suggestion in affirmative from the side of the respondent that rent from 1-1-1975 upto March 1976 was paid or tendered by the respondent to the previous owner Syed Afzal Ahmad Hyderi. The only suggestion made in the cross-examinati is that respondent tenant was depositing rent in MRC 2004/76. The respondent in the written statement has not stated that the previous owner sometimes -' used to issue rent receipts and sometimes he did not issue rent receipt. hut in the affidavit-in-evidence respondent has improved his statement that previous owner sometimes used to issue rent receipts and sometime hr did not issue rent receipts but in the cross-examination respondent attorney stated that he could not produce the rent receipts. The respondent's attorney admitted that rent amounting to Rs 4967- was deposited in Misr R C. No. 2004/76 for 14 months in April 1976 (as per certified copy of application dated 4-2-1989, rent was deposited on 7-5-.1976) and Rs. 34/- was deposited on 14-6-1976 as Rs. 68/- was deposited on 14-9-1976. I have gone through the evidence on record whereby it stood .proved - from the documentary and oral evidence on record that the rent tor the ~ period from 1-1-1975 to 31st March 1976 was deposited on 7 5-1976 'therefore the monthly rent for the months from January 1975 to 29th February 1976 was not paid within sixty days when the monthly rent became due. The respondent in the written statement did not disclose anything about the rent receipts but in his affidavit-in-evidence has improved his case by stating that sometimes rent receipts were issued by the previous landlord and sometimes it were not issued but not a single rent receipt was produced by him and has with-held the material evidence whereunder the adverse infrance would bie drawn that if it would have been produced the same would have gone against the respondent. It will also not be out of place to state that the respondent started depositing rent for the first time on 7-5-1976 i.e. after the filing of ejectment application on 10-4-1976 whereas the respondent's advocate filed power on 17-5-1976. The testimony of the respondent is not confidence inspiring in view of the above stated evidence and of withholding of material evidence and improvement made therein. The evidence of the appellant/landlord is consistent with their pleadings and the veracity of the appellant/landlord could not be shaken in the cross-examination and no satisfactory rebutting evidence has been brought on record by the respondent/tenant. On the contrary in the crossexamination the respondent's attorney Moinuddin admitted that his father deposited rent in MRC No. 2004/76 in April 1976 and deposited Rs. 496/- which was rent for 14 months and the rate of rent was Rs. 34/- and there was Rs. 20/- in excess of rent. The respondent/tenant has not produced any rent receipt for the period from 1-1-1975 till he made deposit in Court on ^ 7-5-1976. If the previous owner had refused to accept rent or to pass on any receipt then it was the duty of the respondent to send the rent through money order or to deposit with the Rent Controller but nothing has been said by the respondent about the payment or tender of rent prior to 7-5-1976 which would prove that the respondent had failed to pay monthly rent for the months from January 1975 till 29th February 1976 within time prescribed by law. There is nothing on record to show that the appellant made specific demand about the payment of water and conservancy charges from the respondent therefore he could not be held to be defaulter for nonpayment of water and conservancy charges. Reference is made to Mst. Hashmi Begum Vs. Mst. Alya Zohra Begum (NLR 1986. Civil-392V No other plea has been raised by the parties learned counsel before me. The finding of Rent Controller on the point of default is not. sustainable which is hereby set aside and the appeal is allowed on the ground of default in the payment of rent. However, the respondent is directed to hand over the vacant possession of the premises in question to the appellant within the period of 90 days from the date of this order subject to deposit of rent if any due with the Rent Controller. (M.K.R.) Appeal accepted.

PLJ 1996 Karachi 55 PLJ 1996 Karachi 55 Present: HAMID ALI MIRZA, J. S.M. SAROOR-Appellant . versus - Mst. BILQUEES FOUZIA-Respondent F.R.A. No. 592/1994 dismissed on 2.11.1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979) —-S. 21 read with 0. 9 R. 13 of CPC-Tenant--Ejectment of--Order of-- Challenge to--Landlady filed ejectment application against tenant on ground that she needed premises in good faith for bonafide personal use for herself and for her n-Summons was issued to appellant/tenant who appeared through coi 1 and case was adjourned for filing written statement-Non appeared for appellant/tenant and written statement was also not filed--Affidvit-in ; exparte proof was filed and ejectment application was allowed-Appellant/Tenant filed an application under order 8 rule 13 CPC which was dismissed-Contention raised by learned Council for appellant that notice before issuance of writ of possession was not given, therefore, his ejectment was illegal Ijas no merit and sub­stance-Appellant has got up from his sleep after expiry of seven months from date of passing order of ejectment-There is nothing on record to show as to what prevented him or his counsel from making any enquiry' from office of Rent Controller to know progress and proceedings of case-­ Held: Appeal has no merit-Appeal dismissed. [Pp. 59&601-A, B, C & D Mr. Abdul Homed Lakhani, Advocate for Appellant Mr. Rqja Sham-uz-Zaman Advocate for Respondent. Date of hearing: 2-11-1995. , judgment This is an appeal under Section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Rent Ordinance) directed against, an order dated 8.9.1994 passed by learned Illrd Senior Civil Judge and Rent Controller Karachi-Central in Rent Case No. 682/1993, Mst. Bilquees Fouzia v. N.M. Saroor, whereby an application under order 9 rule 13 CPC was dismissed hence this appeal. Brief facts of the case are that respondent Mst. Bilquees filed ejectment application against the present appellant/tenant on the ground that she needed the said premises in good faith for bona fide personal use for herself and for her son Mirza Muhammad Abdullah. The summons was issued to the appellant/tenant who was served and appeared through his counsel Mr. Zubair Ahmed who filed his vakalatnama and the rent case was adjourned to 9.11.1993 for filing written statement. However, the matter came up before the learned Rent Controller on 1.12.1993 when none appeared for the appellant/tenant and the written statement was also not filed, therefore, the Rent Controller ordered that the case to proceed exparte against the appellant/tenant and the matter was adjourned to 15.12.1993 for exparte proof and ultimately on 26.2.1994 affidavit-in-eiparfc> proof was filed and ejectment application was allowed on 20.3.1994. The appellant/tenant filed an application under order 9 rule 13 CPC on 29.8.1994 which was dismissed on 8.9.1994 against which order the present appeal has been preferred. I have heard learned counsel for the parties and perused the record and proceedings of the case and the case law cited. Contention of Mr. A. Hameed Lakhani, learned counsel for appellant is that-the learned Rent Controller has erred in law in not allowing his application filed by the appellant under order 9 rule 13 CPC as sufficient cause for setting aside the order of ejectment was made out. He has contended that the appellant was completely unaware of the order of ejectment passed against him. He has placed reliance upon Mst. Noor Bai v. Waris Masood (1984 CLC 3030) Jan Muhammad v. Mst. Fatima Bi (1979 CLC 599) and Mst. Zubalda Bai v. llnd Rent Controller, City Court, Karachi, (PLD 1981 Kar. 82) in support of his contentions.

Mr. Raja Shamsuzzaman, learned counsel for respondent has argued that the appellant has .filed an appeal against an order dated .8.9.1994 whereby an application under order 9 rule 13 CPC was dismissed but has not challenged the order of ejectment which was passed on 20.3.1994, therefore, the appeal filed was incompetent and not maintainable. He has further argued that the appellant/tenants was duly served and he put in appearance through his counsel to whom time was granted to file written statement but the same was not filed and the appellant and his counsel remained absent, consequently exparte proceedings were ordered by the Rent Controller and the respondent filed exparte proof which ultimately ended in the eviction of the appellant as per order dated 20.3.1994. He has further contended that the order could be set aside under order 9 rule 13 CPC only when it is shown that service on the appellant/tenant was not effected or that he was prevented by sufficient cause but in the instant case no sufficient cause has been shown, therefore, the impugned order is legal and proper and no interference in this appeal is catted for considering also that this appeal has been filed after seven months of the order of eviction and thus was time barred as well as and further that no affidavit of the learned counsel Mr. Zubair Ahmed has been filed as to why he did not appear and failed to file written statement before the Rent Controller. He has placed reliance upon Mst. Shirin Begum v. Habib Bhai (1988 SCMR 670) Muhammad Ilyas Khan v. Hameeda Sultana Begum and four others (1994 CLC 1129), M/s Radco International v. State Life Insurance Corporation of Pakistan (1994 CLC 580) M/s. Niazi Institute of Science Organization v. Mst. Anwar Zamani (1987 CLC 1804), Muhammad Panah v. All Nawaz and others (1989 CLC 630) and Mst. Sardaran Begum v. Muhammad Fazil and another (1993 CLC 2303) in support of his contentions. Appellant in an application under order 9 rule 13 CPC has stated that his advocate Mr. Zubair Ahmed did not inform him about the proceedings of the case hence the appellant was unaware and that on 25/26.7.1994 at night time when the appellant/tenant for the first time came to know about the said exparte judgment and that no notice of the execution application was issued which was necessary in view of exparte judgment and that bailiff reached the premises wi Ji police aid at night at about 9.45 p.m. • nd ejected the appellant at 1.00 a.m. on 26.7.1994 and that the impugned order was not legal. Rule 13 of order 9 CPC runs: "13. Setting aside decree exparte against defendant--(l) any case in which a decree is passed exparte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: . Provided that where. The above provision stated that the decree or order could be set aside if the Court is satisfied that the summons was not duly served or that the person against whom order was passed was prevented by any sufficient cause from appearing in the Court when the matter was called for hearing. In the instant case, it has been admitted by the appellant that he was duly served and he did put in appearance through his counsel who filed his vakalatnama and sought date for filing written statement but, thereafter, he remained absent, therefore, the first ground for getting the order get aside would not be attracted. So far the next ground for getting the order set aside as laid down in the above provision of law stated that one has to show that the said person was prevented by any sufficient cause from appearing in the Court when the matter was called for hearing In the instant case no where in the application under order 9 rule 13 or in the affidavit filed in support of the said application any cause has been shown which could be termed as sufficient cause within the meaning of rule 13 of order 9 CPC. The only ground shown in the application is that his counsel Mr. Zubair Ahmed did not inform the appellant about the proceedings of the case. It is the duty of the party to remain in touch with his counsel and to pursue the proceedings personally or through his counsel but the said ground that the counsel did not inform him would not constitute a sufficient cause within the meaning of law. Mr. Zubair Ahmed being the agent of the appellant, therefore, latter would be bound by the said act of negligence of his counsel. No affidavit of the said learned counsel has been filed to show as to why the said counsel failed to appear and file written statement on behalf of the appellant. Reference is made to Mst. Shirin Begum's case (1988 SCMR 670) wherein Supreme Court of Pakistan has observed : "We accept, in the circumstances of the statement of learned counsel that after adjournment on 15.11.1983 on his request, the next date was not entered in his diary due to mistake, but subsequent in action for some time when the case was adjourned several times, is un-exceptionable." In the cited case exparte order of ejectment was passed and application for setting aside of the said order was dismissed and appeal also failed and, (words missing) in the Supreme Court also the order of the Rent Controller was maintained. The facts of instant case are also nearly similar to the cited case. In Muhammad Ilyas Khan's case (1994 CLC 1129) learned Judge in Chamber held that exparte ejectment order against the tenant could have been set aside only if he was not served or he was prevented .from appearing from the Court for reasons beyond his control and further that the application for setting aside exparte order was made after a period of eight months without any application for condonation of delay and the case was clearly of negligence on the part of the tenant and his counsel and order of ejectment in the circumstances could not be set aside. In M/s. Radco International's case (1994 CLC 580) order rejecting application for setting aside ex-parte order of the Rent Controller was held to be proper and legal and no interference with such order was called for. In M/s. Niazi Institute of Science Organization's case (1987 CLC 1804) learned Judge in Chamber maintained the ex-parte order of ejectment and dismissed an application for restoration of case holding that no sufficient cause was shown. In Mohammad Panah's case (1989 CLC 630) learned Judge in chamber held that an application for setting aside ex-parte decree would fall under Article 164 of Limitation Act where-under period of thirty days was prescribed for filing such application and the time would run either from the date of decree or where summons were not duly served from the date of knowledge of decree. In Muhammad Anis v. Mst. Akhtar Jehan Begum's rase (1991 MLD 1386) learned Judge in chamber held that when tenant was duly served but failed to appear before the Rent Controller which ultimately resulted into an ex-pane order of ejectment and application for setting aside ex-parte ejectment order was filed after expiry of long period of seven months, after the expiry of prescribed period of limitation for filing such application and tenant failed to give any reason for such delay the impugned order passed by Rent Controller dismissing application for setting aside ex parte decree was held to be unexceptionable. In Mst. Hoor Bai's case H984 CLC 3030) relied upon by the learned counsel for appellant, the learned Judge in chamber held that the appeal against the order on an application against setting aside ex-parte order was maintainable. Next case cited is of Mst. Zubaida Bai's (PLD 1981 Kar. 82) wherein it was held that on setting aside of order of ejectment, the Court would be competent to order for restoration of the premises where circumstances so demand. In Jan Muhammad's case Q979 CLC 599) cited by the learned counsel for appellant, learned Judge in chamber held that when the appellant in all probability has no knowledge of ex-parte order of ejectment and execution proceedings against him, till he was actually dispossessed, appellant was held to be given opportunity to defend the proceedings. The cases cited by the learned counsel for appellant are different and distinguishable to the facts of the instant case. In the instant case, it is admitted position that the appellant was duly served and put in appearance in Court before the Rent Controller and sought time for filing written statement thereafter he and his counsel remained absent though several times case was adjourned till ex-parte order was passed. There is no cavil about the maintainability of appeal against the impugned order but the point for consideration in this case would whether the appellant/tenant has shown that the was prevented by any sufficient cause from appearing when the matter was called for hearing. There is nothing on record to show any such cause which could be said to be sufficient cause within the meaning of law. The only ground which has been stated in the application and the affidavit is that his counsel Mr. Zubair Ahmed did not inform him about the proceedings of the case. It is not the duty of the Court to inform the appellant/tenant but it was his duty to keep in touch with the proceedings of the case by attending the Court or remaining in touch with his counsel and his failure to perform his duty would not constitute a sufficient cause. The appellant and his learned counsels conduct would amount to be negligence and carelessness on their part. In the instant case as the ejectment order was sought to be executed within a period of one year therefore, under rule 22 of order 21 CPC service of notice to the Judgment Debtor would not be necessary before the issuance of writ of possession. - Rule 22 of Order 21 C.P.C. runs : "(1) Where an application for execution is made-- (a) more than one year after the date of the decree, or (b) against the legal representative of a party to the decree, or where an application is made for execution of a decree filed under the provisions of section 44A, the court executing the decree shall issue a notice, to the persons against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him : Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him. (2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any proceed in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice." In the circumstances, contentions raised by the learned counsel for appellant that notice before the issuance of writ was not given, therefore, his ejectment was illegal, has no merit and substance. I may also state that in this case the appellant has got up from his sleep after the expiry of seven months from the date of passing of order of ejectment. There is nothing on record to show as to what was the reason which prevented him or his counsel from making any enquiry from the office of Rent Controller to know the progress and proceedings of the case. In view of the above case law and the facts and reasons, there is no ground for interference with the impugned order of the learned Rent Controller, consequently appeal has no merit Which is hereby dismissed. The appellant is however, given sixty days to vacate the premises subject to deposit of rent with the Rent Controller. (K.K.F.) . Appeal dismissed.

PLJ 1996 Karachi 61 PLJ 1996 Karachi 61 Present: RANA BHAGWAN DAS, J. Mst. PARVEEN BEGUM and another-Plaintiffs versus Mst. SHAH JEHAN and another- Defendants Suit No. 587 of 1985, dismissed on 21.12.1995. (i) Qanun-e-Shahadat, 1984(P.O. lOof 1984)-- -—Art. 102 & 103-Declaration and permanent injunction-Suit for- Whether defendants can be allowed to lead evidence in contradiction of contents of written agreement-Question of-Under Articles 102 and 103, when terms of a contract have been reduced to writing, no oral evidence can be given in contradiction of terms of such contract, grant or other disposition of property-Held : Defendants are not legally entitled to adduce evidence contrary to terms of a written document i.e. agreement to sell and acknowledgment receipt in respect of consideration. [P. 641 A PLD 1986 SC 519 rel. (ii) Specific Relief Act, 1877 (I of 1877)-- —S. 42-Declaration and permanent injunction-Suit for-Whether plaintiffs are entitled to declaration of their ownership under agreement to sell as well as protection of their possessory rights-Question of-Proviso to Section 42 bars declaration where plaintiff being able to seek further relief than mere declaration of title, omits to do so-Agreement to sell executed by Defendant No. 1 in favour of plaintiffs does not by itself create any right on interest in or any charge on .property-Since plaintiffs are not entitled to declaratory relief relating to ownership of property in suit, they would not be entitled to a consequential relief of permanent injunction to protect their possession-Held : Grant of declaration under Section 42 and relief of injunction under Section 54 of Specific Relief Act being equitable reliefs and discretionary with court, plaintiffs are not entitled thereto-Suit dismissed. [Pp. 64 to 67] B, C, D, E, F, G & H PLD 1968 Kar. 222, PLD 1978 Lah. 113, PLD 1986 Lahore 399, PLD 1981 SC (AJK) 79, PLD 1987 SC (AJK) 93,1982 SCMR 1178 and 1983 SCMR 988 ref. Mr. MaroofAli Khan, Advocate for Plaintiffs. Mr. Asghar Hussain, Advocate for Defendants. Date of hearing : 14.12.1995. judgment Plaintiffs have filed this suit for declaration and permanent injunction on the strength of agreement to sell in respect of plot bearing No 12/1-C Area Liaquatabad hereinafter referred as the plot in suit. 2. By an agreement dated 8 4.1985 defendant No. 1 agreed t,n sell the plot in suit in favour of plaintiffs for consideration of Rs. 75,000/- which was paid by their father Muhammad Rafi and they obtained vacant and physical possession of half of back portion of the plot. In order to affirm the bsolute sale of the plot in suit defendant No. 1 executed an affidavit in this effect and acknowledgment receipt for payment of consideration on the same day which was attested by her son Muhammad Arif Advocate as witness. 3. It is averred that on the same day, defendant No. 2 agreed to sell out plot No. 11/1-C Area in favour of their mother Mst. Musharaf Begum and their brother Muhammad Sarfraz for a sum of Rs. 1,27.000/- and received Rs. 15.000/- as part payment with the promise to execute a registered sale deed within one month. It is maintained that the plaintiffs paid property tax in respect of the plot in suit for the year 1984 85 on 27.4.1985 and approached the Excise & Taxation Authorities to mutate their names as owners in their records but they refused to do so until the defendant No. 1 confirmed the sale in writing and produced photocopy of her National Identity Card. Accordingly their father approached the defendants and requested them for assistance but they avoided to do so on one or the other pretext. Apprehending some foul play on the part of defendants in relation to agreement to sell in respect of plot No. 11/1-C Area plaintiffs' father sent a letter dated 2.5.1985 to defendant No. 2 asking him to execute the sale deed in their favour, their mother and brother but the said defendant through his advocates Asghar Hussain Akhtar & Co. vidf letter dated 11.5.1985 replied that no sale agreement had been executed by him. Thereafter he approached and persuaded defendant No. 2 a number of times to honour the commitment but the latter demanded Rs. 1,00,GOO/- over and above the consideration already agreed for completion of the deal in respect of the plot in suit. Subsequently plaintiffs received notice dated 29.8.1985 from defendant's advocate requiring them to pay a sum of Rs. 1,00.000/- over and above Rs. 75,000/- to defendant No. 1 failing which they would not recognise the sale in respect of the plot in suit. Apprehending interference with their possession and title plaintiffs brought this suit seeking the following reliefs: (a) That it may be declared that the defendant No. 1 is not entitled to demand Rs. 1,75,000/- as price of plot No. 12/1- C Area Liaquatabad at Karachi, sold under deed executed on 8.4.1985 from the plaintiffs and the plaintiffs have acquired all rights of the defendant No. 1 in the said plot by the said deed. (b) That the defendants or anybody else claiming any right through them be restrained permanently from interfering with the plaintiffs possession and title over the said plot by issuance of a mandatory injunction. 4. In her written statement defendant No. 1 admitted the execution of agreement for sale of the plot in suit with a reservation that the consideration was settled at Rs. 1.7-5.000/- and not Rs. 75,000/-. She added that at the time of receipt of Rs. 75.000/- and affidavit was executed in which the sale price was intentionally not mentioned. It is her case that in order to save income tax and wealth tax plaintiffs wanted to show lesser amount in the sale deed and after receiving Rs 75.000/- from them as advance payment alf area of back portion of the plot was handed over to them. According to this defendant she agreed to hand over remaining half portion of the plot to the plaintiffs after receipt of balance amount of Rs. I,0f0,000/- whereafter change of ownership >y delivery of necessary documents would take place. She added that on 10.4.1985 father of the plaintiffs took a sale deed showing consideration as Rs. 75,000/- to her and he wanted to obtain her signature thereon but since he was not ready to pay balance amount of Rs. l.OO.OOO/- sale deed was returned with a direction to get a fresh sale deed prepared showing consideration as Rs. 1,75,000/-. This defendant further urged that the tile documents in respect of the plot and construction thereon remained with her but in the mean-time plaintiffs unauthorizedly occupied remaining half portion of the plot in suit by breaking open locks of the intervening door for which no action was taken as she wanted to complete the sale transaction on receipt of balance amount of Rs. l.OO.OOO/-. 5. Defendant No. 2 who is husband of defendant No. 1 filed written statement through his son and attorney Muhammad Arif in an evasive manner expressing least concern with the plot in suit and the transaction of sale. 6. Pleadings of the parties were reflected in the following issues. (i) Whether defendant No. 1 has agreed to sell the property in dispute for Rs. 75,000/- ? .£ (ii) Whether the plaintiffs are entitled to relief? 7. In support of their case plaintiffs examined their father/ attorney Muhammad Ran" whereas the defendants examined their son/ attorney Muhammad Arif. . 8. At the close of evidence learned counsel for the parties submitted the notes of written arguments but the suit could not be disposed of for one or the other reason. Learned counsel for tiie plaintiffs is reported to be out of country while Mr. Asghar Hussain Advocate did not like to advance any argument in addition to the notes of written arguments. 9. I have had the privilege of going through the material evidence on record and the notes of written arguments. My findings are as under for the following reasons : Reasons. 10. Issue No. 1: From the evidence on record it transpires that the plot in suit was initially allotted to one Muhammad Suleman son of Muhammad Hassan by the Rehabilitation department who raised construction over it for his occupation. It further appears that he had obtained a loan of Rs. 18,000/- on different occasions from Mst. Shah Jehan "~ Begum and on her demand for repayment of the amount surrendered his right and interest in the plot in suit alongwith construction of shops and residential portion thereon in her favour by executing a Surrender Deed dated 16.10.1966. A perusal of the agreement to sell Ex. 1/3 dated 8.4.1986 executed by the defendant No. 1 in favour of the plaintiffs tends to indicate that she had agreed to sell the plot in suit in their favour for a consideration of Rs. 75,000/- and acknowledged the receipt of consideration in presence of the witnesses. It further transpires that after the deal between the plaintiffs and defendant No. 1 the latter changed her mind and wanted extra payment of Rs. 1,00,000/- over and above the consideration agreed upon between the parties resulting in exchange of notices between the parties. Notwithstanding the variation in -respect of the sale consideration I am of the view that in view of the legal bar contained in Sections 91 and 92 of the Evidence Act corresponding to Article 102 & 103 of the Qanoon-e-Shahadat, 1984 defendant No. 1 cannot be allowed to lead evidence in contradiction to the written terms of a document Crux of the above provisions of law and consistent view of the courts has been that when the terms of a contract have been reduced to the form of a document and in all cases in which any matter is required by law to be reduced to writing, no evidence shall be given in proof of the terms of such contract, grant, or other disposition of the property, or of such matter except the document itself and no evidence of any oral agreement or statement shall be admitted as between the parties to any instrument or their representatives-in-interest for the purpose of contradicting, varying, adding to, or subtracting from its forms. In view of this position in law, I am of the considered view that the defendants are not legally entitled to adduce evidence contrary to the terms of a written document i.e. agreement to sell and the acknowledgement receipt in respect of the consideration (Refer PLD 1986 Supreme Court 519). 11. Most crucial point for consideration however is whether in the given circumstances, the plaintiffs are entitle 1 to a negative declaration of the nature asked for by them and a declaration of their ownership as well as protection of their possessery rights. 12, Under the provisions of Section 42, Specific Relief Act, any person entitled to any legal character or to any right as to any property, may nstitute a suit against any person denying or interested to deny, his title to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in suck suit ask for any further relief. It may be observed that proviso to, this section bars such declaration whereby the plaintiff-being able to seek further relief than mere declaration of title omits to do so. It would seem that the law authorises a person to seek enforcement of his right to any property by | instituting a suit against the person denying his right or title. 13. Sale Agreement Ex. 1/3 executed by defendant No. 1 in favour of the plaintiffs, however does not by itself create any right or interest in 01 any charge on the property. On principle as well as on authority, therefore, in my view this agreement does not create any interest in the propeity in suit much less a valid and lawful title to it in favour of the plaintiffs. To my mind, agreement to sell, on the face of it. does not create a right of ownership in the plot in suit in favour of the plaintiffs and it only creates a right to seel specific performance of the agreement subject to all just and legal exceptions. Obvious reason for this proposition is that under the provisions of Section 17 and 49 of the Registration Act, every document purporting to create any right, title or interest of the value of Rs. 100/- and upwards requires compulsory registration. Even otherwise Section 54 of the Transfer of Property Act apart from other things postulates that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties subject to fulfilment of all other legal obligations. It does not of itself, create any interest in or charge on such property. As a necessary corollary, it follows that the agreement between the parties would not confer any right, title or interest in the property in suit in favour of the plaintiffs. 14. In Alavi Sons Ltd. u. The Government of East Pakistan and others (PLD 1968 Karachi 222.) Norrul Arfin-J (as the then was) dealing with a claim for declaration held that the phrase "legal character" has been used, in the sense of "status"; which is constituted by the attributes which the law attaches to a person in his individual and personal capacity and which, according to Holland, is referable to such legal conditions as O) sex, (2) minority, (3) 'patria potestas' and 'manus', (4) coverture, (5) celibacy, (6.) mental defect, (7) bodily defect, (8) rank, caste and official position, (9) slavery, (10) profession, (11) civil death, (12) illegitimacy, (13) heresy, M4) foreign nationality and (15) hostile nationality. According to Salmond, the term "status" is usually confined to personal legal condition for, personal capacities and incapacities, or compulsory as opposed to conventional personal conditions. In this sense, the expression will include personal rights and burdens to the exclusion of the proprietary relations, contractual capacities and incapacities, or legal conditions imposed upon a person by law without, his own consent as opposed to the condition which he has acquired himself by agreement, such as the position of a slave. A declaration that the plaintiff has not committed breach of the terms of a contract is a declaration neither with regard to any legal character, nor any right to or in any property. The plaintiffs' remedy could have been either a suit for recession of the contract, or for specific performance if so permitted, or for damages for its breach." 15. In the case of Abdur Rehman Mobashir and others v. Syed Amir All Shah Bokkari and others (PLD 1978 Lahore 113) a Division Bench of the Lahore High Court dealing with the issue relating to grant of declaratmy relief in terms of section 42 of the Specific Relief Act, 1877 held thai this section applies only to a case where a person files a suit claiming entitlement to any legal character or any right to property which entitlement is denied by the defendants or in denying which the defendants are interested. It cannot apply to a case where the plaintiffs do not allege their entitlement to any legal character or any right to property or its denial by the defendants. As a necessary corollary it cannot apply to a case where only the entitlement to legal character or the property of the defendants is denied by the plaintiffs. 16. In Zafar Ahmed v. Mst. Hajran Bibi (PLD 1986 Lahore 3991 the view taken was that where plaint revealed that there was a mere agreement to sell, plaintiff could not maintain his suit for declaration on basis of such agreement as it did not create any right, title or interest in property. Only proper mode of redress for plaintiff would be a suit for specific performance c ' said agreement. 17. In Muhammad Afsar Khan v. Custodian of Evacuee Property (PLD 1981 S.C. (AJ & K) 79), it was held that a person who has contracted to buy land is not owner of any interest in the land and is, therefore, not entitled to have a decree of title. An agreement to sell does not create any interest in the property and such an agreement even if presumed to be genuine and proved, lacks to create any interest in the property. Same view was reaffirmed in Mst. Resham Jan and other? v. Muhammad Latif and another (PLD 1987 S.C. (AJ & K) 93). 18. In the case reported as-Dr. Fakir Muhammad v. Major Ameer Muhammad (1982 S.C.M.R. 1178) it was held by the Honourable Supreme Court that is well settled that in a suit under Section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiffs right to any legal character or with regard to any right as to property claime by him. It was further held that in a suit under section 42 Specific Relief Act, plaintiff is required to ask-for all other reliefs open to him. The relevant prayer for consequential relief i.e. specific performance of agreement being not made in the plaint, Supreme Court upheld the dismissal of the suit by the High Court. • 19. Having held as above that the plaintiffs are not entitled to the declaration prayed for let us see whether they are entitled to the relief of permanent injunction as prayed in the plaint. It may be pointed out that since the plaintiffs are not found to be entitled to declaratory relief relating to ownership in respect of the property in suit, ordinarily they would not be entitled to a consequential relief of permanent injunction to protect their possession. 20. It is admitted position that in part performance of the contract they had received vacant and physical possession of half of the back portion of the plot in suit whereas defendant No. 1 pleaded that though she had neither parted with the documents-of title nor the shops as well as two rooms which remained in her possession and were agreed to be handed over to them after the payment of balance amount of Rs. 1,00,000/-. she further stated that father of the plaintiffs had approached Councillor of the area who after hearing the parties had directed plaintiffs' father to pay Rs. 1,00,000,'- to her and prepare a sale deed for Rs. 1,75,000/- but he did not abide by the decision. According to her subsequently the plaintiffs obtained unauthorised . occupation of the remaining half of the back portion by breaking open the locks of the intervening door for which no action was taken. From the evidence of the plaintiffs' father and attorney, it transpires that there are two shops constructed on back portion of the plot in suit which were let put on rent to tenants and even upper storey built over the shops is in occupation of a tenant who are paying rent to defendant No. 1 and not the prospective purchasers. This would show that the plaintiffs witness wrongly and dishonestly claimed that the plaintiffs had received physical possession of the plot in suit on the date of agreement. This being the factual position-and the plaintiffs found to be not entitled to the plot in suit as owners, I am of the view that it would neither be just nor fair and equitable to grant a decree for permanent injunction in favour of the plaintiffs who according to the defendants forcibly occupied remaining portion on the back of the plot in suit. 21. It is true that in the case repotted as Muhammad Bux v. Ziaullah and others (1983 S.C.M.R. 988) it was held that section 53-A of the Transfer of Property Act does not confer a title on vendee and creates no real right except one of defending possession but merely creates right of estoppel j between proposed transferee and transferor. To my mind, right to protect possession acquired in pursuance of an agreement to sell may be agitated as a shield byway of defence but not by way of claim or assertion adverse to-thtrights of the real owner. In this view of the matter, I am inclined to hold that the plaintiffs are not entitled to the relief of injunction as prayed. 22. Apart from what has been stated above, grant of declaration under Section 42 and relief of injunction under Section 54 of the Specific „ Relief Act being equitable reliefs and discretionary with the Court, the plaintiffs are not entitled thereto in the present suit which is dismissed with no order as to costs. (ZB) Suit dismissed.

PLJ 1996 Karachi 68 (DB) PLJ 1996 Karachi 68 (DB) Present: abdul RAHIM kazi and majida razvi, JJ. MOULA BITX KIIATlAN-Petitioner versus CHIEF SECRETARY, GOVERNMENT OF SINDH and 2 others- - Respondents Const Petition No. D-2356 of 1993, accepted on 10.9.1995. Locus Paenitentiae-- —-Employee of Sui Southern Gas Co.-Absorption in Government of Simlh- Order ui-Whether Chief Secretary • could withdraw order of chid Minister and repatriate petitioner to his parent department-Question of- -Correspondence clearly shows defiance by Chief Secretary in complyibg with orders of Chief Minister and indicates his displeasure/anger which amounts t.o malafide towards petitioner-There is no cavil that apart from provisions of section 21 of General Clauses Act, power of lucius paenitentiae is available to Government to rescind decisions till decisive step is taken'but this is subject to exception to cases where order has taken legal effect and in pursuance of same, certain legal rights have accrued to an individual-Chief Minister had passed orders of absorption of Petitioner in BPS 19 of Government of Sindh and had directed for issuance of notification which created right in his favour-Held : Chief Secretary had no authority to transfer/direct petitioner to report back to his parent department-Petition accepted. [Pp. 73,74 & 75] A, B, C, D & E PLD 1992 SC 207 ref. Mr. Sabihuddin Ahmad, Advocate for Petitioner. » Mr. KM. Nadeem, A.A.G. for Respondents No. 1. Date of hearing: 10.9.1995. judgment Majida Razvi, J. This petition has been filed by the petitioner against Notification dated 16-8-1993, whereby the petitioner was directed to report to the respondent No. 3, praying chat the same be declared inter alia an "un-called, unwarranted, undesirable, unlawful, mala fide issued with ulterior motive, perverse, arbitrary, abuse of power and unconstitutional and in violation of Fundamental Rights guaranteed, in the Constitution." The petitioner has further prayed for reliefs as mentioned in the Prayer Clauses 1 to 5 of the petition. The relevant facts, as per memo of petition, to dispose of this petition are, that the petitioner was appointed on 15-8-1975 as an Officer in the Executive cadre in the Sui Gas Transmission .Company, which was subsequently merged with Karachi Gas Company Limited and is presently known as "Sui Southern Gas Company Limited" (Respondent No. 3>. The petitioner continued to serve the respondent No. 3 and was later on promoted as Senior Executive in Grade IV. Respondent No. 3 has its own Service Rules which do not provide for deputation of an employee serving in the Executive Cadre. On 3-6-1989 a Notification was issued by the Cabinet Secretariat. Government of Pakistan , in consideration of which the petitioner was relieved from his services with respondent No. 3 and was appointed as Private Secretary'to the Minister, for Culture and Sports Government of Pakistan. On 4.1.1990 another Notification was issued by the Deputy Secretary, Cabinet Secretariat, Establishment Division, whereby the petitioner was transferred and posted as Director, Prime Minister's Inspection Commission on deputation but the petitioner continued to work as Private Secretary to the Minister of Culture and Sports till 22-5 1990 »-' when the said Notification was cancelled. On 8-9-1990, when the petitioner was on leave, another Notification was issued by the Cabinet Secretariat, whereby the petitioner was transferred and his services were placed at the disposal of respondent No. 3. But, when the petitioner came back from leave, he was retained as Deputy Secretary and a reference dated 19-9-1990 was made to the Establishment Division for withdrawal of the Notification dated 8-9-1990. In consequence of the said reference a Notification was issued on 24-9-1990 whereby the petitioner was posted as Deputy Secretary in Culture and Sports Division. However, by another Notification dated 16-10-1990 the petitioner was posted as Deputy Secretary, Food and Agriculture and the earlier notification dated 24-9-90 was cancelled. On 01-01-1991, while the petitioner was serving as Deputy Secretary, Ministry of Food and . Agriculture, Government of Pakistan, Islamabad, the Chief Minister of Sindh vide his D.O. letter to the Establishment Secretary, Government of Pakistan, requisitioned the services of the petitioner in the Sindh Government as Additional Secretary in BPS-19. Accordingly, a notification dated 9-1-1991 was issued and the petitioner who was posted as Deputy Secretary, Food and Agriculture Division, was transferred and his services were placed at the disposal of the Government of Sindh for further posting. Vide notification dated 16-1-1991 the services of the petitioner were accepted and he was posted as Director, Marketing, .Karachi Development Authority. On 16-6-1991, Dr. Ishratul Ebad Khan, the then Minister, Housing, Town Planning, Public Health Engineering, Government of Sindh submitted a summary to the Chief Minister of Sindh for posting of the petitioner as Additional Secretary, Housing, Town Planning and Local Government, Government of Sindh. The Chief Minister approved the said summary and on 17-6-1991 notification was issued whereby the petitioner was transferred and posted with immediate effect as Additional Secretary, Local Government, Public Health Engineering, Rural Department. On 7-8-1991, the petitioner's case was recommended to the Chief Minister for absorption, induction and posting against the permanent establishment of Government of Sindh as an officer in BPS-19. It was also recommended that the petitioner's seniority may also be determined. On 25-2-1992 the petitioner's case was once again recommended for absorption as Additional Secretary on merit and a request was made for issuance of modified notification for his absorption. Mr. Jam Haider Ali, Advisor to the Chief Minister again requested the Chief Minister on 31-5-1992 for issuance of such notification and the Chief Minister was pleased to order that "he may be absorbed and notification issued". It is alleged that the respondent No. 1 (Chief Secretary Government of Sindh) deliberately and with mala fide intention delayed/with-held the issuance of the notification for absorption of the petitioner in BPS-19 as a permanent officer of the Government of Sindh. As such, a reminder was issued on 18-1-1993 by the then Minister, Public Health Engineering Department Government of Sindh, for issuance of the said notification as per orders of the Chief Minister but the Chief Secretary still avoided the issuance of such notification. Again, on 6-4-1093, the Additional Chief Secretary, Local Government submitted a summary to the Chief Secretary for implementation of the orders of the Chief Minister dated 5-8-1992. The Minister, Public Health Engineering, Government of Sindh, also reminded the Chief Secretary, vide his letter dated 16-5-1993, for issuance of a notification to this effect. On the recommendation of the Minister, Public Health Engineering and Rural Development, the Department of Public Health Engineering and Rural Development were separated from the Local Government Department and the petitioner was recommended to look after the working of the newly created Department. Since this assignment was approved by the Chief Minister, it was sent to the Chief Secretary for issuance of notification but the same was not complied with. On 27-6-1993 the Chief Minister had sent the summary to the Chief Secretary directing him to implement the order dated 5-8-1992 for the absorption of the petitioner as Additional Secretary in BPS-19 without any further reference to his secretariat. But this order was also ignored by the Chief Secretary with mala fide intentions. On 16-8-1993 a notification was issued by the Chief Secretary whereby Ghulam Sarwar Khero, an ex-PSS Officer (BPS-19) was posted as Additional Secretary, Local Government and Public Health Engineering Department while the petitioner was transferred and directed to report to his parent department (Respondent No. 3). But the copy of the said notification was never forwarded to the said respondent with mala fide intention. The petitioner has filed this petition challenging his transfer on the ground inter alia that the said notification was abuse of power, and usurpation of authority of the respondent No. 1 and void 06 initio. Mr. Sabihuddin Ahmed, learned counsel for the petitioner has raised the following contentions :- 1. That no terms and conditions of deputation/requisition of service of the petitioner were provided to him ; 2. That once order were passed and acted upon the same could not be withdrawn ; and 3. That the Chief Secretary could not pass orders for transfer of an officer of Grade-19 or above. Mr. K.M. Nadeem, AAG. appearing for respondent No. 1, has opposed the petition and contended that since no Notification was issued as to the absorption of the petitioner in the service of the Government of Sindh, the petitioner could be relieved and sent back to the parent department. He further contended that since the original order was illegal, Section 21 of the General Clauses Act is not applicable and has relied on the case of The Engineering-in-Chief Branch through Ministry of Defence Vs. Jalaluddin (PLD 1992 SC 207). We have heard Mr. Sabihuddin Ahmed, the learned counsel "for the petitioner as well as Mr. K.M. Nadeem. AAG, for defendant No. 1, and have perused the record. It is an admitted position that no terms and conditions of the deputation/requisition of the petitioner's services were ever provided to him as was confirmed during the arguments by the AAG. Now, coming to the merits of the case, the services rules of the parent company applicable to the petitioner's service did not provide any deputation and as such when the petitioner's service was requisitioned by the Federal Government, he was issued a last pay certificate which is dated 7-8-1989. The letter dated 7-6- 1989 issued by the respondent No. 3, relieving the petitioner's service and forwarding the last pay certificate is worded as under: . "In compliance with Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi's Notification No. 12/10/88-OMG-I dated 3-6-1989, this is to advise that you are relieved of .your duties in Sui Southern Gas Company Limited-Unit "C", with effect from 7th June, 1989, to enable you to take up your new assignment as Private Secretary to the Minister for Culture and Sports. A Last Pay Certificate is enclosed. Yours faithfully Sui Southern Gas Company Limited Sd/- For Managing Director" This letter clearly states that in compliance with the Government of Pakistan, Cabinet Secretariat, Establishment Division, Rawalpindi's Notification dated 3-6-1989, the petitioner is being relieved of his duties in Sui Southern Gas Company Limited. There is no mention of deputation or any indication that his lien is kept with the respondent No. 3 and if the petitioner is relieved by the requisitioning authority, he will be taken back on his original post. But the Notification dated 4-1-1990 clearly indicates that' the petitioner is transferred and posted as Director, Prime Minister' Inspection Commission on deputation." On 8-9-1990 a Notification was issued transferring the services of the petitioner at the disposal of the respondent No. 3 but this was never acted upon and a letter dated 19-9-1990 issued by the Government of Pakistan. Office of the Minister for Culture, Sports, Tourism & Youth Affairs, was issued requesting that the petitioner's service may be made available in the Ministry of Culture, Sports and Tourism and that the earlier Notification may be withdrawn. There was further note on this letter, which is as under : "As already advised that Mr. Khatian should continue to work as Deputy Secretary in. this' Ministry and no transfer/posting be made without my prior approval." This letter was signed by the Minister, Mr. Makhdoom Shafiq-uz-Zaman. Another Notification dated 24-9-1990 shows that the petitioner was posted as Deputy Secretary in Culture and Sports Division, Government of Pakistan, on deputation in his own pay scale. On 1st January, 1991, the Chief Minister Sindh, Jam Sadiq Ali, wrote a D.O. to Mr. A. R. Siddiqui, Establishment Secretary, Government of Pakistan, Islamabad, requisitioning the services of the petitioner for Government of Sindh in response to which a Notification dated 9th January, 1991, was issued, transferring services of the petitioner at the disposal of the Government of Sindh. The petitioner vide Notification dated 16-1-1991 was transferred and posted as Director Marketing. KDA. On 16-6-1991 a summary was prepared and submitted to the Chief Minister, recommending that the petitioner be posted as Additional Secretary and it was approved by the Chief Minister and a Notification dated 17-6-199] was issued to this effect. Another summary dated 7-8-1991 was submitted to the Chief Minister by the Additional Chief Secretary. In para-IV of the said summary, it was written as under : "The Chief Minister Sindh while requisitioning his services, approved his induction and posting against the permanent establishment of Sindh Government as an Officer of BPS-19 and as a part of routine Sindh Government can determine the seniority of the officer from the day he joined the Sindh Government (i.e. 12-1-1991). Therefore, the case of Mr. Khatian is recommended for the fixation of seniority in Sindh Government from 12.1.1991 as Chief Minister Sindh has already approved the case of his induction/absorption in Sindh Government." The above para spells out that while the petitioner's services were requisitioned and kept at the disposal of the Government of Sindh, his induction and posting was already approved by the Chief Minister against the permanent establishment of Sindh Government as an officer in BPS-19. The last line of the same para again emphasized that the Chief Minister of Sindh has already approved the case of his induction/absorption in the Sindh Government. In para 3 of the summary in regard to the petitioner's case it was mentioned that "the Chief Minister has already decided to absorb the officer in Sindh Government" and further that "there are many precedents of similar cases where the officers have been absorbed in the Sindh Government." Para 1 of another summary dated 31-5-1992 shows that the Chief Minister had already issued directives to the Chief Secretary regarding the absorption of the petitioner in the Sindh Government and further in para 4 of the same letter there is an indication that the "then Chief Minister of Sindh had veiy kindly already approved the absorption" of the petitioner as an officer of Sindh Government in BPS-19 while posting him as Additional Secretary. In para 5, the attention of the Chief Minister was drawn that despite his orders neither the summary was put up nor the Notification issued. A hand written note of the Chief Minister on the summary is: "He may be absorbed"and notification issued." The petitioner was intimated this decision of the Chief Minister vide their letter dated 17-5-1993 issued and signed by the Advisor to the Chief Minister Sindh for Rural Development. Yet another letter dated 18-1-1993 issued by the Government of Sindh shows that the Chief Minister of Sindh had already approved the absorption of the petitioner and orders were passed for issuance of Notification and this letter was like a reminder for the issuance of the Notification as per order of the Chief Minister. Yet there are two more reminders dated 6-4-1993 and 16-5-1993 requesting for the issuance of Notification in respect of the absorption of the petitioner. Again a letter dated 17-6-1993 was issued by the Minister, Public Health Engineering and Chief Minister Inspection & Evaluation Team, Government of Sindh, stating therein that the Chief Minister has approved the summary. But the Chief Secretary instead of following the orders of the Chief Minister for issuance of Notification for the absorption of the petitioner in the Government of Sindh, issued a Notification dated 16-8-1993, appointing Ghulam Sarwar Khero in place of the petitioner and transferring and directing the petitioner to report to his parent department i.e. respondent No. 3. The above correspondence clearly shows defiance by the Chief Secretary in complying with the orders of the Chief Minister, and indicates displeasure/anger which amounts to mala fide towards the petitioner. The record shows that several Notifications were issued subsequently in compliance with the Chief Minister's orders appointing/absorbing, in relaxation of rules, several officers on different posts under the Government ofSindh. There is no cavil to the rules laid down consistently that apart from the provisions of Section 21 of the General Clauses Act, "locus paenitentiae" power is available to the government to rescind decisions till decisive step is taken. But this is subject to exception to cases, where the order has taken legal effect and in pursuance to the same certain rights have accrued to any individual. Such rights once created in favour of an individual cannot be withdrawn or rescinded to his detriment. . In the present case also, the Chief Minister who is the Chief Executive, had passed orders of absorption of the petitioner in BPS-19 of Government of Sindh and had directed for issuance of Notification to this effect which order was communicated to the petitioner and this created rights in his favour. This principle is laid down in the case of Pakistan through the Secretary, Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407). It was further argued that the services of the petitioner were requisitioned firstly by the Federal Government and then by the Government of Sindh, this offer was accepted by the petitioner and thus it constituted valid contract capable of being enforced. In the case of Mukhtar Ahmed and others Vs. Government ofW Pakistan (PLD 1971 SC 846) it was observed that: "The offer of the Government and its acceptance by the appellants constituted a valid agreement and the Governor's order dated 1st July, 1965 provided the authority, for such an agreement. This agreement is capable of being enforced in law. The Government was both competent and obliged to implement that agreement." The other cases which lend support to the petitioner's case are: 1. Muhammad Nawaz Vs. Government of Punjab (1981 SCMR523). 2. Salimullah Khan v. Raqib Khan (1989 SCMR 1879). Rule 21 (b) of the Sindh Government Rules of Business, 1986, which are applicable to the petitioner, is as follows : "21. In addition to the duties and functions assigned to him under any other provisions of these rules, the Chief Secretary shall- (a) .............. Not relevant ............ (b) exercise, on behalf of the Chief Minister, powers of appointing authority except the power of appointment ' (other than addition or current charge), transfer, promotion, disciplinary action and matters mentioned at serial numbers, 4; 6, 7 and 20 of sixth Schedule in respect of officers in B-19 and above; (c) to(g) ............... Not relevant. .......... This rule spells out in unambiguous terms that the Chief Secretary could exercise powers, on behalf of the Chief Minister in respect of appointment, transfer, etc. of officers except in B-19 and above. As such, the Chief Secretary had no authority to transfer/direct the petitioner to report to his parent department. In view of the above discussion, we hold that the impugned notification dated 16-8-1993, transferring/directing the petitioner to report to the parent department was without lawful authority and of no legal effect. The above are the reasons in support of the short order passed on 10-9-1995. (ZB) Petition accepted.

PLJ 1996 Karachi 75 PLJ 1996 Karachi 75 Present: syed deedar hussain shah, J. MUHAMMAD AFZAL-Plaintiff versus SMALL BUSINESS FINANCE CORPORATION and 4 others- Defendants C.M.A. No. 3074 of 1994, in Suit No. 420 of 1994, dismissed on 28.11.1995 Civil Procedure Code, 1908 (Act V of 1908)-- —O.XXXLX R. 1 & 2 read with Small Business Finance Corppration Act, 1972, Section 22--Temporary injunction-Grant of--Prayer for- Defendants have issued notices as required under Act and have taken steps for recovery of dues as arrears of land revenue under Section 22 of Act—Plaintiff himself obtained financial assistance from defendants and has miserably failed to pay due instalments as agreed upon between parties-Defendants are entitled under Section 22 of Act to take coercive measures for recoveiy of sum due to corporation-It is also admitted position that plaintiff, after obtaining financial assistance from Corporation, has joined service as A.SJ in Sindh Police-Held: From facts of case, neither balance of convenience is in favour of plaintiff nor he will suffer any irreparable loss or injury if injunction is not allowed- Held: There is no substance in application-Application dismissed. [P. 85 ]A,B,C,D&E PLD 1965 SC 671, PLD 1988 SC 67, PLD 1970 SC 180, 1971 SCMR 569, 1973 SCMR 184 and PLD 1969 Dacca 832 not relevant. Mr. Hakim Ali Siddiqui, Advocate for Plaintiff. Mr. Ghulam Ali Khokhar, Advocate for Defendants. Date of hearing: 28.11.1995. judgment 1. Brief facts of the case are the plaintiff was sanctioned a finance of Rs. 6,50,000/- and was intimated about the sanction on 30-3-1991. The plaintiff was required to give undertaking as desired by the defendants to the effect that the plaintiff shall accept the Small Scale Industries credit line instead local made machinery credit line as sanctioned if the State Bank of Pakistan does not re-imburse the funds under the later credit line, without disclosing the difference between the two and the reasons for seeking such an undertaking. The plaintiff has filed this suit for declaration, permanent injunction and damages with the following reliefs : (i) Decree for Rs. 5,52,000/- against the defendant Nos. 1 to 4 for damages/loss as compensation for the damages/loss suffered by the plaintiff. (ii) Declaration that withdrawal of the finance demand of Rs. 8,63,730/- from the plaintiff and the notices issued by the defendant No. 5 is illegal, malafide, void, ab initio, without lawful authority and of no legal effect. (iii) Permanent injunction restraining the defendants No. 1 to 5 from recovering Rs. 8,63,730/- or executing and taking any further step in pursuance of notices issued by defendant No. 5 U/S 81 and 82 Sindh Land Revenue Act and arresting and detaining the plaintiff or attaching and selling the properties of the plaintiff or the surety, directly or indirectly in any manner whatsoever by themselves or - through their subordinate, employees, agents or any other agency whatsoever." 2. After the service the defendants had filed written statement and on 28-5-1994 CMA No. 3074/94 was filed with the prayer to grant adinierim injunction restraining the defendants No. 1 to 5 from recovering Rs. 8,63,730/- or executing and taking any further step in pursuance of notices issued by defendant No. 5 under Sections 81 and 82 of the Sindh Land Revenue Act 1967 and arresting and detaining the plaintiff or attaching and selling the properties of the plaintiff or the surety, directly or indirectly in an}' manner whatsoever by themselves or through their subordinates, mployees, agents or any other agency whatsoever till the disposal of the above suit. In support of this application affidavit of Muhammad Afzal son of Fazal Muhammad, the plaintiff has been filed, relevant paragraphs of which are reproduced as follows :- "3. That 1 had applied with the defendant No. 1 for grant of finance but the defendants No. 2 to 4 illegally and malafidely delayed the sanction of finance through delaying tactices in order to gain monetary benefits;, from me and the same was sanctioned to me after the intervention of Witfaqi Mohtasib (Ombudsman) Islamabad and in the LMM credit line of State Bank of Pakistan, made available .to the said Corporation and the same was available, at M.t- time when the loan was disbursed to me though the defendant No. 2 to 4 had delayed t,h«j disbursement of about 4 months in order to achieve their illegal and malafide designs. 4. That the defendant for the reasons, stated in the plaint., had become totally annoyed and antagonistic towards the plaintiff and at the very nick of time, the defendant No. 2 to 4 illegally and malafidely asked me to execute an undertaking which T executed under protest and the same is not binding upon me. The finance disbursed to me -is under LMM credit line, hence I am liable to pay mark-up at 7% per annum and that is also, if the same is not prohibited in Islam. 8. That the notices issued by defendant No. 5 U/S 81 and 82 Sindh Land Revenue Act are illegal, malafide, void ubinitio, without lawful authority in the circumstances of t.he case and for the reasons stated in the plaint. 10. That I am prepared to pay lawful dues/instalments commencing from March 1993 calculated on/the basis of 7% mark-up without prejudice to my contention that the same is prohibited by law". 3. On behalf of the defendants Iqbal Hussain son of late Khuda Bux Kazi, defendant No. 4. has filed counter affidavit, material and relevant paragraphs of the same are reproduced as under :- "4. That the allegations contained in the para No. 3 are false, frivolous' and baseless, and are vehemently denied, it is denied that any defendant deliberately delaying sanction of the Financial Assistance to the plaintiff. No delaying tactics were used at all, nor any monetary benefit was sought by any one from the/plaintiff. The plaintiffs case for grant of financial assistance was considered on direction of the learned Wafaqi Mohtasib for reviewing it. It is denied that the funds were made available in LMM credit line by the State Bank of Pakistan for advancing to the plaintiff/applicant/borrower. Some delay does take place in all such cases of applicants for grant of financial assistance by the defendant No. 1 Corporation (S.B.F.C). The plaintiffs allegations of malafide designs against the defendants are totally concocted and at issue of lies. 5. That the allegations contained in the paras Nos. 4 & 5 of the plaintiffs' said affidavit are also false and baseless. It is denied that any defendant became annoyed and antagonistic towards the plaintiff. It was necessary for the plaintiff/applicant to execute an undertaking, before payment of the sanctioned financial assistance to him. Hence with his eyes open he did execute and undertaking at Hyderabad where he resides, on 20-6-1991, got it attested by an Oath Commissioner of Hyderabad , and he produced it alongwith his application dated 20-6-1991 before me the Manager of the S.B.F.C., Branch Office, M.A. Jinnah Road , Karachi . The plaintiff has filed photostat copies of his said undertaking and his said application as Annexures T & "J" respectively. He has not mentioned, therein at all that he was submitting his said undertaking nder any protest. Now malafide he has tried to wriggle out from his said undertaking belatedly for ulterior motives to avoid repayment of the said financial assistance/loan as per S.S.I, credit line terms, under which he has to pay the mark-up at rate of 11%. Now malafide he wants to pay it at only 7% under LMM credit line, which does not apply to his case. The said financial assistance/loan was advanced to the plaintiff on the said S.S.I. Credit terms to which he had agreed in his said undertaking. Now under the law he cannot resile from the said terms. Hence the present suit is clearly without any cause of action, and is barred under the law. Hence the plaint deserves to be rejected under Order 7 Rule 11 R/W Sec: 151 CPC, as under the law the still born suit deserves to be nipped in the bud in the interest of justice. It is denied that the plaintiff has suffered any loss or damage due to any delay illegally or malafide caused by any defendant. In the said para. No. 4 of his affidavit the plaintiff has made the allegations against the defendant, without specifying which defendant. Hence his allegations contained in the said para are clearly vague and frivolous. 6. That the allegations contained in the para. No. 6 of the plaintiffs said affidavit are false and frivolous. It is denied that the defendants want to take any revenge from the plaintiff, and that the defendants have illegally and malafide cancelled the said financial assistance advanced to the plaintiff. In fact the plaintiff has recently joined police service as an Assistant Sub-Inspector (A.S.I.), and hence he has closed his Ice Factoiy. situated in Korangi, Karachi , and it is no more operating. The defendant Corporation (S.B.F.C.) had advanced the said financial assistance/loan to the plaintiff in sum of Us. 650,000/- as per sanction advice letter dated 30-3-1991, whose photostat copy he has filed alongwith his plaint as Annexure "H". Hence, I, the defendant No. 4, issued notice to the plaintiff to dear his total outstanding dues payable to our said Corporation, as his said project/Ice Factory has been wound up by him, is no more running, and he has joined the police service as ASI, and under the law he cannot run any factory at all." 4. I have heard Mr. Hakim Ali Siddiqui who has contended that rate of mark-up at 7% LMM credit line was agreed and not H% per annum for foreign made machinery; That plaintiff has filed sanction letter regarding financial assistance of Rs. 6,50,000/- vide defendant's letter dated 30-3-1991, contents of para, vii of the letter read was follows •:- "All documentation regarding L.M.M. should be completed before disbursement of loan as per attached". That the undertaking dated 20-6-1991 was obtained from the plaintiff under coercion ; that the plaintiff is prepared to deposit the amount alongwith mark-up at the rate of 7% per annum that notice as required under Section 20 of the Small Business Corporation Act No. XXIX of 1972 is not issued by the defendants and that the defendants have not initiated the proceedings in the Court of District Judge as required. 5. Mr. Ghulam Ali Khokhar has contended that the plaintiff has not filed rejoinder application to the counter affidavit filed by the defendants dated 27-5-1995 so far ; that the plaintiff is a chronic defaulter and has himself violated the terms of the agreement as such the entire amount alongwith mar-up is recoverable from him now ; that recovery notices were issued to the plaintiff as per rule and regulations ; that instalments have fallen due from him and he has paid the same ; that financial assistance was sanctioned by the defendants at the request of the plaintiff ; that the undeitaking was furnished by the plaintiff at his own free-will and without any compulsion and coercion whatsoever ; that the application under the circumstances is liable to be rejected. Mr. Khokhar has further contended that the plaintiff has since joined the service of police as ASI, as such he is not running the Ice Factory. 6. Before release of the financial assistance the plaintiff entered into an agreement for registered mortgaged the property with the defendants. According to the Annexure D-8 the schedule of the mortgaged property is mentioned as follows: "SCHEDULE OF MORTGAGED PROPERTY Registered Mortgage of H. No: 285 C.S. No. 31/9, Block "36" situated at Liaquat Colony, Hyderabad owned by Mr. Safdar Ali son of Khairuddin (Guarantor) On North : By Plot No : 306 On East: By Road On Sourth:By Road On West: By plot No : 285/A And the Schedule of hypothecated properly is as under :- "SCHEDULE OF HYPOTHECATED PROPERTY 1. Hypothecation of Proposed Machinery Valued Rs. 959,000/- 2. Hypothecation of Raw Material (Proposed) valued Rs. 50.000/- And according to Annexure D-8 (a) the schedule of the mortgaged property in favour of the defendants through registered deed is as follows :- "Registered Mortgage of Ice Factory plot bearing No. 2/6, Sector 21 Korangi Industrial Are, Karachi owned by Mr. Muhammad Afzal son of Fazal Muhammad On the North by

Plot No. 2/5 On the South by

Plot No. 2/7 On the East by

Plot No. 2/15 On the West by—

30'-00 wide road. And the Schedule of hypothecated property is as under :- 1. Hypothecation of proposed Ice Factory machinery valued Rs. 959,000/- 2. Hypothecation of Proposed Raw Material valued" Rs. 50.000/- 7. I would like to reproduce the undertaking executed by the plaintiff which is annexure "I" to the plaint, as under: - "I, Muhammad Afzal S/o Fazal Muhammad, Muslim, adult, Prop. Afzal Ice Factory R/o H. No, 285/A, Block 36, Liaquat Colony, Hyderabad undertake that if the State Bank of Pakistan does not re-imburse funds, under L.M.M. Credit to Small Business Finance Corporation upto 30-6-91, then I agree in accepting S.S.I. Credit's terms and conditions from 01-07-1991, till adjustment of account". The contention of Mr. Hakim Ali Siddiqui, that notice as required under Section 2 was not issued to the plaintiff, is belied by the record. The plaintiff was issued notice dated 12-12-1993 by the defendants, which is as follows :- "Reference to your above stated loan A/C, it is hereby stated that as you have joined a'government service i.e. as ASI, Police, this may divert you abilities/capabilities from the business unit finance by the SBFC which can create problem. You already stand a chronic defaulter. You are, therefore, advised to deposit the total outstanding amount with upto-date profit in lump sum and thereby close your loan AC with the SBFC without any further delay. Failing which legal action will be initiated. Please note." After that on 10-4-1994 and 17-5-1995 notices of demand were issued to the plaintiff by the defendants, which are annexures "R" and "S". 8. I would like to reproduce Sections 20, 21 and 22 of the Small Business Finance Corporation Act 1972, which are as under :- "20. Notwithstanding any agreement to the contrary, the Corporation may, by notice, require any borrower to whom it has granted any loan, or any person liable for payment of such loan, forthwith to repay the loan in full, if- (a) It appears to the Board that in the application for such loan false or misleading information in any material particular has been given ; or (b) the borrower has failed to comply with the terms of any agreement with the Corporation in the matter of the loan ; or (c) for any other reason, it is necessary, in the opinion of the Board, to protect the interest of the Corporation. 21. Where the Corporation becomes entitled to require the immediate repayment of any loan before the due date and the loan is not repaid in compliance with the notice under section 20, the Corporation may initiate proceedings in the Court of the District Judge within the local limits of whose jurisdiction the debtor carries on the whole or substantial part of his .business, for recovery of the whole of the outstanding loan. 22. Without prejudice to the provisions of sections 20 and 21 all sums due to the Corporation, shall be recoverable as arrears of land revenue ; Provided that no sum shall be recovered unless fifteen days notice has first been given by the Corporation to the debtor that the sum will be so recovered ; Provided further that in so giving notice the Corporation shall inform the debtor that he may pay such instalments as may be fixed in the notice and that upon his so paying every installment on or before the due date the recovery will be suspended but that it win otherwise proceed as to the entire sum outstanding in case of any default in any instalment including the first." 9. The defendants have issued the required notices as required under the Act and have taken steps for the recovery of the dues as arrears of land revenue as required under Section 22 of the Act, referred alum Therefore, the contention of Mr. Hakim Ali Siddiqui that compliance of Sections 20 and 22 is not made, is not sustainable. 10. Mr. Hakim Ali Siddiqui has cited the following authorities :- (1) PLD 1965 S.C. 671 Case of Abdul RaufVs. Abdul Hamid Khan:- ' The Hon'ble Supreme Court in this authority has held as under :- "The decision of the question whether Civil Court had jurisdiction in the present case would depend on whether the impugned orders and proceedings were without jurisdiction. There is in this case an attack on the proceedings on the ground of mala fide too. A mala fide act is by its nature an act without V jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A malafide order is a fraud on the statute. It may be explained that a mala fide order means on which- is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes." There is no applicability in this authority to the facts of the case in hand. (2) PLD 1988 S.C. 67-Case of Agricultural Development Bank of Pakistan Vs. Sanaullah Khan and others :- The Hon'ble Supreme Court has held as under :- "It is important to note that the recovery can be effected under subsection (1) of Section 25 from an "agriculturalist" or defaulter in the payment of any liability to the bank and such sums which are due to the bank are recoverable as arrears of land revenue. It is an admitted position that demand was made on respondent No. 1 by means of notice by the Naib- Tehsildar. D.I. Khan, for recovery of Rs. 3,399.78 as arrears of land revenue, being the due outstanding against Saadullah Khan deceased (vide judgment of the trial paragraph 1). Now Section 2 (c) defines the "agriculturalist" inter alia to mean any individual engaged in agriculture or in the development of agriculture or agricultural products, who satisfies the bank that the loan to be taken shall be spent on agriculture or the development of agriculture or agricultural products etc. Section 19 of the Ordinance provides for providing credit in cash or in kind and credit facilities, to agriculturalists for the purpose of agriculture etc. Reading these provisions of law together it is plain that the powers conferred under Section 25 to recover the sums due to the bank as arrears of land revenue are exercisable against the "agriculturalist who had secured the loan or credit facilities from the bank. This, is the foundational basis of the jurisdiction to exercise the extraordinary powers of recovering the dues of the bank. It, therefore, follows that the power of coercive recovery cannot be invoked against a person who did not secure the loan as a agriculturalist himself. Admittedly respondent No. 1 did not obtain the credit facilities or secure the loan which is being recovered from him. The proceedings for the recovery of the dues from him, therefore, by the means adopted was illegal." In my humble view this authority is also totally different and distinguishable from the fact of the case in hand and is not helpful to The plaintiff has himself obtained financial assistance form the defendants and had mortgaged the immovable property and hypothecated the machinery and other valuable goods and on his own accord, he has miserably failed to pay the due instalments as agreed upon between the parties. z 3) PLD 1970 S.C. 180 Case of Mian Muhammad Lotif Vs. Province of West Pakistan :- The Hon'ble Supreme Court has held as under :- "It is needless to mention that in a case where temporary injunction is claimed, the plaintiff has only to make out that he has a good prima fade case meaning thereby that a serious question is to be tried in the suit and that in the vent of success if the injunction is not issued he will suffer irreparable injury. The appellant, has, in the present case, fulfilled all these conditions. Even the learned Additional Advocate General and Mr: Nathu Lai, learned counsel for respondent No. 2 have not opposed the issue of injunction". This authority of the Supreme Court is not helpful to the case of the plaintiff at all, as the application for injunction was allowed when the learned A.G. and the learned counsel for the respondent raised no objection. Whereas in this case the learned counsel for the defendant has vehemently opposed the 1 prayer of the plaintiff for grant of the application. 11, Mr. Ghulam Ali Khokhar has cited the following case law :- (1) 1971 SCMR, 569--Case Of Province of West Pakistan Vs. Malir Asghar Khan :- The Hon'ble Full Bench held in this authority as under :- "Issuance of temporary injunction to the Government Departments in respect of service matters is bound to disturb their working, and they should not ordinarily be issued unless there are compelling reasons to do so because balance of convenience ordinarily would not lie in disturbing the administrative arrangements of a Department" In the case in hand service matter is not involved at all. On the contrary the plaintiff has approached this Court for issuance of injunction for non-recoveiy of the instalments and other dues by the defendants. This authority is not applicable so far the facts of this case are concerned. (2) 1973 SCMR 183-Case of Muhammad Yakoob Vs. Health Officer, Municipal Committee, Hyderabad :- The rule laid down in this authority is as follows :- "So far as the present petition is concerned, it must, in our opinion, fail, because, after the licence had, expired by efflux of time, there could be no further question of continuing them or restraining the Municipal Committee from cancelling the same. If the petitioner succeeds in his suit, he will be entitled to recover all damages suffered as a consequence of the cancellation and also to the renewal of his licence. No irreparable injury will thus be suffered by him whkh cannot be compensated in terms of money." This authority is also quite different and distinguishable from the facts of this case an d as such is not applicable to this case. (3) PLD 1969 Dacca-832, Case of East Pakistan Inland Water Transport Authority Vs; Abdul Jalil Beparti :- In this authority the learned Judge has observed as under: "When it is apparent from the plaint itself that the damages, if any, can be compensated, then in the event temporary injunction should not be issued creating a deadlock in the internal administration of the statutory body. Considering that the period for which the contract was given to the opposite-parties Nos. 2 and 3 was for a year, I do not consider it necessary to send ^this matter back to the learned Munsiff for consideration of the matter of issuance of ad interim injunction and more so when the parties plead their respective cases before this Court and advanced the arguments accordingly. In my view, the suit should be disposed of as expeditiously as possible." This authority is also not applicable so far the facts of the present case are concerned. 12. I have gone through the material placed with the matter so also the case law cited by the parties. It is an admitted fact that the plaintiff got the sanction of financial assistance from/the defendant for an amount of Rs. 6.50.000/- and before the release of the amount necessary documentation was carried over between the parties which is referred hereinabove and the plaintiff on his own accord furnished the undertaking before the release of the financial assistance and the plaintiff has agreed for the mark up at the rate of 11% per annum. The plaintiff is defaulter so far the payment of instalments and other dues are concerned. The plaintiff was issued notices as required under Section 20 of the Act referred above but of no avail and the plaintiff had not paid the instalments to the defendant. The defendants 'are entitled under Section 22 of the Act referred to here to take coercive measures for the recovery of the sums due to the Corporation. It is also an admitted fact that after sanction and disbursement of the loan the plaintiff has joined the service of Government of Sindh as ASI which is also borne out from the record. This fact is not denied by the plaintiff himself. 13. It has become a tendency now-a-days that after getting financial assistance from the Financial Institutions at their request on the agreed terms and conditions of payment and refund with mark up, the parties are not willing to repay the amount so due to the Financial Institutions with the result that Financial institutions are suffering and the economy of the country, as a whole is at stack. 14. From the facts of the case neither the balance of convenience is in favour of the plaintiff nor he will suffer any irreparable loss or injury if injunction is allowed. On the contrary the defendants will suffer a lot because after the sanction and disbursement of financial assistance the plaintiff has miserably failed to pay a single instalment towards the amount received by him. As such there is no substance in the application, which under the circumstances is dismissed with costs. (ZB) Application dismissed.

PLJ 1996 Karachi 86 PLJ 1996 Karachi 86 Present: RASHEED A. RAZVI, J. M/s. ZENAT BROTHER (PVT.) LTD.--Plaintiffs versus AlWANE IQBAL AUTHORITY and 3. others-Defendants C.M.A. No. 3075 of 1995, in Suit No. 561 of 1990, decided on 12.12.1995. (i) Bank Guarantee- —Mobilization advance guarantee-Encashment of-Application under Order XXXIX Rules 1 & 2 of C.P.C. for restraining Defendants from encashing of-It has been admitted in this guarantee that at request of surety and principal debtor, creditor had agreed to advance a sum of Rs. 67,45,548/- for purpose of supply, installation of heating, ventilating and air-conditioning system for Aiwane Iqbal Complex Lahore-It was agreed that advance amount was to be used for procurement of plant and for purchase of material-It appears from affidavits filed by parties that some movable properties were left, by plaintiff at site which have been taken over by owners of complex amounting to Rs. 1,14,754/- and plaintiffs have established aprima facie case for re-imbursement of this amount- Question of granting interim injunction to restrain encashment of mobilization guarantee is now well settled-Held : Courts are generally reluctant to grant an interim injunction restraining a bank from knowing its contractual obligations-Application to extent of mobilization advance guarantee disallowed but injunction restraining encashment of performance guarantee granted- [Pp. 92,93 & 94] C, D, E & F (it) Bank Guarantee-- —-Performance Guarantee-Encashment of-Application for restraining defendants to encash guarantee-Allegations that alleged delay in completion of assignment was caused partly due to defendant No. 3 in completion of civil work and partly due to non-appointment of consultant by defendant No. 1, were not satisfactorily controverted by defendants No. 1 and 2 which amounts to establishing a prima facie good arguable case-Plaintiffs would suffer irreparable loss if guarantee is encashed by defendants and balance of convenience is also in their favour-Defendants 1, 2 and 4 restrained from encashing performance guarantee. [P. 91 ] A & B PLD 1994 SC 311,1983 CLC 2252 and 1984 CLC 381 rel. Mr. Mubarak Hussain Siddiqui, Advocate for Plaintiffs. Mr. Bilal A. Khawaja, Advocate for Defendants 1 and 2. Nemo for Defendants 3 and 4. Dates of hearing: 24, 25 and 26.10.1995. judgment' The plaintiff is a limited company and is involved la, the electrical and mechanical engineering business who has brought this suit against the defendants for a declaration that the two bank guarantees executed by the defendant No. 4, namely, United Bank Limited, bearing performance guarantee No. 2 of 1986 and mobilization guarantee No. 3 of 1986 be declared to have been discharged on conclusion of the contract and for consequential relief that the defendants be restrained from encashing both these bank guarantees. For interlocutory relief, the plaintiffs have filed this application under Order XXXIX Rules 1 & 2 CPC (CMA No. 3075/90) praying that the defendants No. 1 & 2, their agents, representatives employees be restrained from encashing guarantees bearing 2/86 dated 12.7.1986 and 3/86 dated 26.7.1986till disposal of the suit. 2. The case of the plaintiff is that in the month of March, 1986, the plaintiff was declared the lowest bidder and was awarded the job of airconditioning, ventilation and heating in the project known as Aiwan-e-Iqbal Complex, Lahore. The main contract for constructing the building of this Aiwan-e-Iqbal, was awarded to the defendant No. 3, namely, National Construction Limited (hereinafter referred to as NCL). On 14th July, 1986 NLC and plaintiff entered into contract for the above said purpose. It was one of the terms of this contract that the said agreement shall not stand discharged on account of detention/substitution of the NCL and shall be binding on the plaintiff, even if any successors-in-interest or assignee of the main contract or comes into the scene. In this contract, it was further agreed that the plaintiff shall furnish a performance guarantee to the owner i.e. defendants No. 1 and 2. it was also agreed that the plaintiff will be entitled for the mobilization amount as per contract Annexure-B to the plaint. Accordingly, on 26.7.1986 a mobilization advance guarantee was executed by the United Bank Limited (hereinafter referred to as UBL) at the instance of the plaintiff and in favour of the defendants No. 1 and 2. 3. I have heard Mr. Mubarak H. Siddiqui, Advocate for the plaintiffs and Mr. Bilal A. Khawaja for the defendants No. 1 and 2. Since the plaintiff is seeking interim injunction against the encashment of these two guarantees and as the terms and conditions of the performance guarantee and mobilization guarantee as well as the circumstances leading to such encashment are different, as such, I propose to separately deal with both these guarantees. Performance Guarantee:

4. This guarantee is dated 14.6.1989, filed as Annexure-D to the plaint. It was executed prior to the agreement dated 14th July, 1986 filed as Annexure-C. The purpose of executing this guarantee was for the due performance and observation of all terms, provisions and stipulations of the contract by the plaintiff which contract was admittedly executed after execution of this guarantee. It is stipulated in this agreement that the UBL shall pay to the owner (defendants No. 1 & 2) a sum of Rs. 44,97,033/- which is equivalent to 10% of the contract price on demand in writing received from the owner stating that the contractor has committed default, without giving any further particulars of such default and notwithstanding any contest by the contractor. It was further agreed in the performance guarantee as follows: "We United Bank also agree that after the issuance of the competition certificate to the contract, our liability would be 50% of the amount of the performance guarantee and hereby alsq agree that owner can complete that portion of works which the contractor has failed to commence or not satisfactorily executed upto the amount of the performance guarantee at the expense to the Bank." 5. Mr. Mubarak Hussain Siddiqui, learned Counsel for the plaintiff has vehemently urged that the defendants No. 1 and 2 are not entitled to encash this performance guarantee as the delay caused in the completion of the contract was partially due to the delay in appointment of consultant by the owner (assured) as well as the delay caused by the NCL i.e. defendant No. 3 in completion of the civil work. He has relied upon the case law, namely, M/s. Banerjee & Banerjee v. Hindustan Steel Works Construction Ltd. and others (AIR 1986 Calcutta 374), Messrs Jamia Industries Ltd. u. Messrs Pakistan Refinery Ltd., Karachi (PLD 1976 Karachi 644) and the case of Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and others (1993 CLC 1926). 6. Mr. Bilal A. Khawaja, learned Counsel for the defendants No. 1 and 2 has opposed this application on the ground that the plaintiff was not able to establish the three main ingredients for grant of interim injunction and that in very rare and exceptional cases, interim injunction as prayed is to be granted. He has contended that bank guarantee is a bilateral agreement executed between creditor and surety, therefore, according to Mr. Khawaja, plaintiff is an outsider and is not entitled for an interim injunction. He has relied upon the famous case of Edward Owen Engineering Ltd. U Barclays Bank .International Ltd. ((1978) 1 All E.R. 976). In this reported case, one English supplier entered into a contract with Libyan buyers to supply goods to them in Libya against which the plaintiff submitted a performance bond for 10% of the contract price guaranteeing performance of their obligations under the contract. Accordingly, Libyan Bank issued a letter of guarantee. However, due to some dispute in opening of letter of credit, the plaintiffs repudiated the contract which resulted in filing of a cause. On Judge granted an interim injunction as prayed but subsequently another Judge discharged the injunction which resulted in appeal before the Court of Appeals wherein Lord Defining. Mr., after considering the cases Malas v. British Imex Industries Ltd. ((1958 1 All ER 262), R. D. Harbottle (Mercantile) Ltd. v. National West Minister Bank Ltd. ((1977) 2 All ER 862), Bank Russoiran v. Gordon Woodroffe & Co. Ltd. ((1972) The Times, 4th October) and the case ofSztejn. v.J. Henry Schroder Banking Corpn ((1941) 31 NY Supp. 2d 631) held as follows: "All this leads to the conclusion that the performance guarantee stands on a similar footing to a letter of credit. A bank which gives a performance guarantee must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer ; nor with the question whether the supplier has performed his contracted obligation or not; nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee, on demand if so stipulated, without proof or conditions. The ohly exception is when there is a clear fraud of which the bank has notice." 7. In the case of M/s. Banerjee & Banerjee v. Hindustan Steel Works Construction Ltd. and others, a learned single Judge of Calcutta High Court after considering the above quoted law and other laws from the England and Indian jurisdiction (including the case of Edward Owen Eng. Ltd.) held that the bank guarantee or the Letter of Credit are completely an independent document and in case if it is enforced bona fide strictly in accordance with its term then the contractor cannot prevent its enforcement It was further held that the Court should consider the following facts while considering whether the enforcement of a bank guarantee should be allowed or not in a particular case: (i) Whether demand for enforcing the bank guarantee has been made strictly in accordance with the terms of the document concerned; or (ii) Whether there is any allegation of fraud against the beneficiary of which the Bank has notice; or (iii) Whether there is any special equity arising out of the particular situation giving rise to a strong prima facie arguable case against enforcement of such guarantee. 8. There are other cases from the Indian jurisdiction earlier in time than the case of Banerji and Banerji 'in which the question of encashment of bank guarantees was considered by the superior Courts of India. For further reference see the cases of. United Commercial Bank v. Bank of India (AIR 1981 SC 1426), Pesticide.^ India, Props Mewar Oil & Gen. Mills Ltd. v. State Chemical and Pharmaceutical Corporation of India Limited (AIR 1982 Dehli 78), M/s. Banwari Lai Radhe Mohan v. Punjab State Co-operative Supply and Marketing Federation Limited (AIR 1982 Dehli 357). Premier Tyre Limited v. State Trading Corporation (1981 Rajdhani LR 138) and the case of M/s. Harprashad and Co. Ltd. v. M/s. Sudarshan Steel Rolling Mills and others (AIR 1983 Dehli 128). In the case of United Commercial Bank (AIR 1981 SC 1426), it was held by the Supreme Court of India that sometimes a Letter of Credit resembles and is analogous to a contract of guarantee the Court will do their utmost to enforce it according to its terms. In the case of M/s. Harprashad and Company, a Division Bench of Dehli High Court followed the principles laid down in the case of United Commercial Bank and held that the bank cannot be restrained by an injunction from discharging its obligation arising out of a bank guarantee. 9. The criteria for grant of interim injunction in the cases arising out of Letter of Credit and unconditional bank guarantees, were considered by a Division Bench of this Court and it was held in the case of Pakistan Engineering Consultants v. Pakistan International Airlines Corporation and others (1993 CLC 1926) that the Court should be reluctant to grant ad interim injunction restraining a bank from honouring its contractual obligation. It was further held in this reported case by the then Chief Justice of this Court. Mr. Ajmal Khan, C. J. (as his lordship then was now Judge of the Supreme Court) that "however in exceptional cases, where refusal to grant ad interim injunction, will perpetuate fraud or injustice, which should be apparent from the material on record, the Court may grant an ad interim injunction." Against this order, the appellants went before the Hon'ble Supreme Court seeking leave to appeal which was refused (See Pakistan Engineering Consultant v. Pakistan International Airlines Corporation and others 1989 SCMR 379). Resume of the above case law will indicate that in our country, there exists an additional reason to stay enforcement of a bank guarantee, that is, the case of "injustice" but in exceptional cases. Besides, the two conditions of fraud and injustice, there is third ground available to a plaintiff or contractor to resist enforcement, particularly in the case of performance bond which is in the nature of penalty in view of Section 74 of the Contract Act. This question came up for consideration before a learned single Judge of this Court Mr. Zafar Hussain Mirza, J. (as his lordship then was) in the case of Messrs Jamia Industries Limited v. Messrs Pakistan Refinery Limited (PLD 1976 Karachi 644) wherein a bank guarantee was furnished by the plaintiff for Rs. 5.00.000/- encashable in case of any default in the due performance of all or any of the obligations under a contract executed between the plaintiff and the defendant. The learned Judge while referring to the dictum laid down in the case of Province of West Pakistan v. Messrs Mistri Patel & Co. and another, i PLD i969 SC 80) held that even if a breach was committed by the plaintiffs^ the defendants could not, ipso facto, appropriate the whole amount. With this view, the learned Judge granted interim .injunction and restrained the encashment of the performance bond. 10. The allegations raised by the plaintiffs that the alleged delay in completion of the assignment was caused, partly due to non-appointment, of consultant by the defendant No. 1 and partly due to delay caused by the defendant No. 3 in completion of civil work were not satisfactorily controverted by the defendants No. 1 and 2 which amounts to establishing a prima facie good arguable case. These issues are now pending adjudication before this Court and unless proper evidence is led from both the sides and are analysed it will be very difficult to say as to who was responsible for such delay. The question of delay in the present case was also noted by the on'ble Supreme Court in the case of Messrs National Construction Limited v. Aiw n-e-Iqbal Authority (PLD 1994 SC 311). The question of encashing a performance bond was also considered by a Division Bench of this Court in the case of Pakistan Engineering Consultant v. PIAC (Supra) wherein it was held as follows: "10. As regards the performance bond, in our view, the same stands entirely on different footing than the Bank guarantee and unless and until the prima facie finds that the default was on the part of the consultants, it would not be just and proper to allow its encashment as the encashment depends on the commission of default. We have already observed hereinabove that on the basis of material available on record, it cannot be said who has committed the default." (Underling is mine). 11. In view of the law laid down by this Court in the case of M/s. Jamia Industries and Pakistan Engineering Consultant, I am of the onsidered view that the defendants are not entitled to encash the erformance guarantee dated 12.7.1986 Annexure-D to the plaint, otherwise the plaintiff would suffer irreparable loss. I am also of the tentative view that the balance of convenience is'also in favour of the plaintiff. Accordingly, defendants No. 1, 2 and 4 are restrained from encashing the same till isposal of this suit, (for further reference see the case of Macdonald Layton Co. Ltd. v. Pakistan Services Ltd. & others (1983 CLC 2252) and the case of Sirafi Trading Establishment v. Trading Corporation of Pakistan Ltd. (1984 CLC 381). Mobilization Bond: 12. The need or requirement for executing a mobilization bond is quite different from the need and circumstances leading to the execution of performance bond. A mobilization bond is generally executed by a contractor (principal debtor) after he had received certain advance amount from the owner (creditor) against some agreement, while the performance bond are executed by a surety at the instance of principal debtor guaranteeing 'satisfactory fulfilment of the terms and conditions of the contract or completion of the assignment within a particular period. Therefore, in my humble view, encashment of performance bond is dependent on the determination of a question as to who has committed default in Fulfilment of its obligations orln completion of an assignment within a given period but this question is not relevant as far as encashment of a mobilization bond or guarantee is concerned as in such cases the principal debtor had received consideration from the owner or the main contractor (creditor) which" he is liable to return or refund as a result of any revocation, termination or completion of the contract. In such cases, the burden is upon the principal debtor at whose instance such mobilization bond was executed or on the surety, as the case may be, to show that either no amount was advanced to them as mobilization or advance amount or such amount if received then it has been duly incurred or that he is entitled for "appropriation of certain outstanding amount against the amount of mobilization bond. In absence of these conditions, the Courts will always be reluctant to grant interim injunction restraining encashment of a bank guarantee executed against receipt of advance or mobilization fund. 13. The Mobilization advance guarantee was executed on 26.7.1986 in favour of the owner of Aiwan-e-Iqbal Complex Lahore (defendants No. 1 &2). This guarantee was issued at the instance of the plaintiff (principal debtor) by the United Bank Limited (defendant No. 4/ surety) in favour of the owner of Aiwan-e-Iqbal Complex, Lahore who are the creditors in 'this guarantee. It has been admitted in this guarantee that at the equest of the Surety and the principal debtor the creditor had agreed to advance a sum of Rs. 67,45,548/- for the purpose of supply, installation of heating, ventilating and air-conditioning system for the Aiwan-e-Iqbal Complex Lahore. It was agreed that the advance amount was to be used for the procurement of transport of plant and for the purchase of the material for the work as agreed in the contract dated 14.7.1986. The following condition as embodied in the mobilization advance guarantee are material as well as relevant for the disposal of this application which are reproduced as hereinunder :- "2. That the Contractor shall reply the above said advance to you (owner) either by getting the same deducted from his (plaintiff) running bills as per the Conditions of the Contract or from his own resources. 3. In the even of the Contractor failing to utilize the advance for the purpose for which it has been given by you and/or the Contract failing to make the payment of the same to you as per the General Terms and Conditions of the Contract we hereby guarantee the payment of the amount of Rs. 67,45,548//- (Rupees sixty seven lac forty five thousand five hundred and forty eight only) or such other amount as may %e outstanding against the "Contractor" within two days after demand ma|i0 by you on us without any question or without any reference of any nature whatsoever "to the CONTRACTOR and irrespective of existence of any dispute between you and the CONTRACTOR and irrespective of pendency of any dispute with CONTRACTOR before any Arbitrator or any Court of law. 4. That a demand certifying that the CONTRACTOR has failed to utilize the advance for the purpose for which it has been given and/or has failed to repay the same duly signed by the P.M. will be conclusive against the CONTRACTOR and against us which certified demand shall not be questioned by us for any reason whatsoever and it would be sufficient authority for us to make the payment to you. 5. That our liability under this guarantee shall stand reduced automatically to the extent of the adjustment made from the running bills, of the CONTRACTOR and a certificate signed by the P.M. to this effect shall be conclusive and binding on us." 14. According to Mr. Bilal A. Khawaja, the plaintiff has admittedly received the amount as mentioned in the mobilization guarantee and he is bound to return/refund the same irrespective of the fact whether who was at fault for delay in the completition of the said project. He has also contended that as per terms of the mobilization guarantee the owners of Aiwan-e-Iqbal Complex, Lahore have already adjusted/deducted the amount which they have received from the running bills and it was due to this reason that the ^ owners have made a demand for Rs. 65,50,777/- (Less Rs. 1,94,771/- of the initial amount mentioned in mobilization guarantee). On the other hand, Mr. Mubarak Hussain Siddique has contended that the defendants are not entitled to encash the mobilization guarantees. In the alternate Mr. Mubarak has pleaded that the plaintiff is entitled to deduction of Rs. 29,29.147.89 in view of an office memo which the plaintiff has filed alongwith their counter affidavit. Mr. Khawaja Bilal has challenged the legality of such office memo and denied that it was executed by any authorised officer of the defendant Nos. 1 and 2. Be that as it may, it appears, from the affidavits filed by the parties that some movable properties were left by the plaintiffs at the site which have been taken over by the owners of the said complex amounting to Rs. 1,14,754/-. I am of the tentative view that the plaintiffs have established aprima facie case for reimbursement of this amount. 15. In our country the law on the question of granting interim injunction to restrain the encashment of mobilization advance guarantee is now well settled. The Courts are generally .reluctant to grant an interim injunction restraining a bank from honouring its contractual obligations. In support of this proposition reference can be made to the cases Pakistan Engineering Consultants u. Pakistan International Airlines Corporation (1993 CLC 1926), Messrs Kohinoor Trading Establishment v. Trading Corporation of Pakistan Ltd. and 2 others (1987 CLC 1533) and the case of M/s National Construction Limited v. Aiwan-e-Iqbal Authority (PLD 1994 SC 311). Thelast mentioned case arises out of the construction of the same building but in the said case the main contractors (National Construction Limited) have gone in appeal against the order of the Lahore High Court whereby injunction was refused through which the appellant was seeking injunction restraining the respondent from encashing the mobilization guarantee. The Hon'ble Supreme Court dismissed the appeal and held as follows: "In the instant case, therefore, the bank guarantee furnished by the appellants contained categorical undertaking and impose absolute obligations on the banks- to pay the amount, irrespective of any dispute which may arise between the parties regarding the breach of contract In our view the Courts must give effect to the covenants of the bank guarantees, the performance guarantees, for the smooth performance of the contracts. Those guarantees are independent contracts and the bank authorities must construe them, independent of the primary contracts. They should encash them notwithstanding any dispute arising out of the original contract between the parties. In the instant case, therefore, the encashment of bank guarantees cannot be postponed pending decision of the arbitration proceedings, which may take years to conclude." 16. The result of the above discussion is that the plaintiffs application is disallowed upto the extent of mobilization advance guarantee while it has been granted upto the extent of performance bond/guarantee. The owners of Aiwan-e-Iqbal Complex shall be entitled to encashment of the same as per original demand but after deduction of Rs. 1,14,754/- from the amount as claimed by them vide letter dated 7.6.1990. 17. This order will become operative/effective after expiry of the appeal period in order to enable the parties to seek any relief by filing their respective appeals, if any, since some serious questions of facts and law are involved. C.M.A. No. 3075/95 stands disposed of. (ZB) Orders accordingly

PLJ 1996 Karachi 95 PLJ 1996 Karachi 95 Present: HAMID ALI MIRZA, J. " HABIB BANK LTD.--Appellant versus GHULAM RASOOL and another-Respondents F.R.A. No. 573/1992. dismissed on 5.11.1995. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 21--Tenant--Ejectment of--Order of--Challenge to-Personal use and default in payment of rent-Ground of~Evidence of Respondents/ landlords is consistent with pleadings and has been stated on oath that they needed premises in good faith, but tenant has failed to produce strong rebutting evidence to disprove evidence of landlord-Entire evidence produced has proved beyond any shadow of doubt that appellants/tenants did not pay rent for months of MarcTi and April and deposited rent of May, after due date therefore appellant/tenant became defaulter-Held: Appeal is dismissed being incomp,etent.—Appeal dismissed. [Pp. 99 & 102 ] A & B Mr. M. Saleem Iqbal, Advocate for Appellants. Ms. Mehrunnisa, Advocate for Respondent. Date of hearing: 5.11.1995. judgment These are two appeals under Section 21 of the Sindh Rented Premises Ordinance 1979 (hereinafter called Rent Ordinance) directed against an order dated 15-10-1992 in a Rent Case No. 979/88 Ghulam Rasool and another vs. Habib Bank Limited passed by V-Senior Civil Judge and Rent Controller, Karachi-South, whereby ejectment application filed by respondent/landlord against the appellant/tenant was allowed on the ground that respondents/landlords required the premises for their personal use against which finding appellants/tenants Habib Bank Limited filed FRA No. 573 of 1992 while on the finding on the issue of default in the payment of rent which was decided in the negative holding thai the appellant/tenant Habib Bank Limited has not committed default m the- payment of rent the respondent/landlord has preferred a separate Appeal No. 601/92, both appeals being against the same order in respect of same property are being disposed of by this judgment. Brief facts of the case are that Ghulam Rasool for himself and on behalf of M/s. Noor Timber Importers filed an application under Section 15 of the Rent Ordinance on 19-7-1988 against the appellants/tenants Habib Bank Ltd. for their ejectment on the ground that former required the premises bonafide for their personal use and occupation for commercial purpose to shift their office from the rented premises at Old Haji Camp to the premises inoccupation of appellants/tenants Habib Bank Limited'for that the latter v^re served with a notice dated 15-3-1987 to vacate the said premises on the expiry of lease period i.e. 30-4-1977 and on the ground that appellants/tenants Habib Bank Limited have failed to pay agreed rate of rent of Rs. 1,500/- per month for the months of March and April 1987 in respect of property bearing Plot No. M.R. 1/67, situated at Murad Khan Road, Khori Garden, Karachi. The appellants/tenants filed written statement stating therein that the respondents/landlords did not require the premises for their personal use in good faith and that they have paid rent for the months of March and April 1987 to the respondents/landlords through pay slips and the rent for the month of May, 1987, was sent through pay-slip to the respondents/landlords but same was refused thereafter rent for the said month was sent through money order which too was refused hence rent from May 1987 to December 1988 was deposited in Misc. Rent Appln. No. 922/87 with the Controller. On the pleadings of parties the Rent Controller settled the following issues : (1) Whether the applicants required the premises in question for their personal bonafide use ? (2) Whether the opponents have committed default in the payment of rent as alleged by the applicants ? (3) What should the order be ? The respondents/landlords in support of their case filed an affidavit of the attorney Ali Raza who has produced general power of attorney Ex. 5, photo copy of postal A.D. receipt Ex. 6 and Ex. 6/A. The appellants/tenants Habib Bank Limited filed an affidavit of attorney Shaikh Saeed Ahmad who has produced photo copy of power of attorney, photo copy of notice dated 15-3-1987 sent by respondents'/landlords' advocate and photo copy of reply dated 5-4-1987 to the said notice, photo copy of voucher dated 31-3-1987 mentioning Nos. 966935 and 966936 of pay slips each for the sum 'of Rs. 1,500/-, photo copy of counter-foil of pay slip dated 31-3-1987 with No. PAG 966935, photo copy of postal A/D receipt photo copy of envelope, photo copy of money-order cfoupon 2064 for the sum of Rs. 1,500/- dated 2-6-1987. Both the witnesses were cross-examined at length by the counsel for respective parties. The Rent Controller after recording the above evidence and hearing learned counsel for the parties passed the impugned judgment whereby on the finding of Issue No. 1 ejectment application was allowed while Issue No. 2 in respect o default in payment of rent was answered in negative. I have heard learned counsel for parties and perused the record and proceedings of the case and the case law cited by the counsel for parties. Learned counsel, Mr. Muhammad Saleem Iqbal, for appellant/ tenant Habib Bank Limited has argued that the respondents/landlords are already in occupation .of another premises therefore the requirement of the respondents/landlords is not based on bonafide good faith. He has further argued that the learned Rent Controller has not properly appreciated the evidence on record therefore the finding of Rent Controller was erroneous in law. He has further argued that the appellants/tenants Habib Bank Limited tendered the rent through pay-slips by registered post A/D for the months of March and April, 1987 which were received by respondents/landlords, while rent for the-month of May 1987 was sent as per practice through pay-slip as per registered post A/D. but it was returned undelivered therefore rent for the said month was sent through money-order but it was also refused therefore rent for May 1987 to December 1988 was deposited in Misc. Rent Appln. No. 922/87 with the-Controller. Learned counsel has contended that there was no deliberate and wilful default in the payment of rent and that the finding of Rent Controller was legal and based on proper appreciation of evidence on record. Learned counsel Miss. Mehrunnisa for respondents/landlords has argued that the respondents/landlords are in occupation of the rented premises therefore they required • the premises in occupation of the appellants/tenants so that the respondents/landlords could shift their business in their own premises therefore the need of the respondents/landlords was based on good faith and further that the evidence adduced by the respondents/landlords is consistent with the evidence on record and no satisfactory rebutting evidence has been produced by the appellants/tenants Habib Bank Limited and further the testimony of the respondents/landlords could not be shaken in the cross-examination by the counsel for the appellants/tenants Habib Bank Limited therefore the finding of the Rent Controller was legal and based on proper appreciation of evidence on record. She has further argued that the finding of the Rent Controller on the issue of default in payment of rent is erroneous in law and is not based on proper appreciation of evidence on record as the appellant/tenant Habib Ba'nk Limited failed to tender rent for the months of March and April 1987 within due date and no documents or receipts have been produced for the months of March and April, 1987 in respect of payment of rent to the respondents/landlords. Mere filing of photo copy of' voucher dated 31-3-1987 and photo copy of counter-foil of pay-slip No. PAG 966935 for the sum of Rs. 1,500/- would not prove the payment of rent having been made by the appellant/tenant. The respondents/landlords in para-3 of the ejectment application have stated that they needed the premises bonafide for personal use and occupation for commercial purpose to shift their office from the rented premises at Old Haji Camp to the premises in occupation of the appellants/tenants Habib Bank Limited. In notice dated 15-3-1987 the respondents/landlords in para 3 have stated that they needed the premises bonafide in good faith for personal use and occupation as their office. Respondents' attorney in para 4 of affidavit-in-evidence of Ali Raza has stated that respondents needed bonafide the premises for their personal-use and occupation for commercial purpose to shift their house from rented premises. In the cross Ali Ruza he has stated : "The applicant is tenant at Mustafa Manzil Old Haji Camp Road since last 20 years. The building in occupation off applicant where he is tenant is a godown and improvised office. Haji Abdul Rasool and his brother are the owners of that building. Applicant had a godown in Timber Mprlrgt and there is litigation on that godown also. The adjacent office to the bank on the ground floor is in possession of Haji Jatta Bai Gokal. It is fact that bank people used to pay rent in that office adjacent to that. The applicant is the partner of that office. I do not know the area of this office. There are three tenement on the upper story any rent cases against the tenant in occupation of both flats. It is incorrect to suggest that the applicants do not need the premises for personal occupation but they wanted to re-let it on higher rent and on pugree. The adjacent office to the bank is not owned by the applicants. This place is owned by the applicant and other partners. It is incorrect to suggest that this office is sufficient for applicant's use and occupation." The appellant/tenant Habib Bank Limited in para 3 of the written statement stated that personal bonafide requirement of the respondents/ landlords is not genuine but made with ulterior motive. Shaikh Saeed Ahmad attorney of the appellants'/tenants' Habib Bank Limited in para-4 df counter-affidavit has stated that personal bonafide requirement of the respondents/landlords is not genuine and they have many properties in the city of Karachi . Shaikh Saeed Ahmad attorney of the respondent in the cross-examination has stated:-- "It is incorrect to suggest that tha owner of the'premises in question does not have any other property. It is incorrect to suggest that Noor Timber Importer does not have any property. Voluntarily says he has big office adjoining to the premises in question. I do not know if the office situated adjoining to the premises in question has no concern with the applicant Noor Timber." It would appear from the evidence produced by the parties that admittedly the respondents/landlords are carrying on business in the rented premises and they wanted to shift their office from there to the premises in occupation of appellants/tenants Habib Bank Limited. The appellants/tenants Habib Bank Limited have not shaken the veracity of the respondents/landlords as to the fact that they have been carrying on their business in the premises not owned by them. There is no rebutting evidence that the premises in occupation of the respondents/landlords was not owned by them and was insufficient to their needs. On the contrary, the appellants/tenants in th cross-examination stated that he did not know if the office of applicants/respondents known as Noor Timber on the building is on rent whereas the respondents/landlords stated that it was on rent and further the appellants/tenants Habib Bank Limited stated that they did not know if the office situated adjacent to the premises in question has no concern with the respondents. This would show that there is no rebutting evidence to the statement of the respondents/landlords that they needed the premises in occupation of the appellants/tenants Habib Bank Limited for opening their office after shifting the same from rented premises situated presently at Old Haji Camp. The evidence of the respondents/landlords is consistent .with the pleadings and it has been stated on oath that they needed the said premises in good faith. Mere .fact that there is an allegation from the appellants/tenants Habib Bank Limited that the respondent landlords after getting the possession of the premises in question, the same would be re-let out at enhanced rate of rent and would earn pugree would not disentitle the respondents/landlords who has otherwise proved their personal requirement in good faith for getting the possession of their own property for running their business unless the tenant has produced strong rebutting evidence to disprove the evidence of the landlord. I may state'that law has provided protection for the tenants and check upon the landlord by inserting Section 15(A) of the Rent Ordinance whereby in case where the possession is . obtained under clause (vii) of Section 15 and the said premises is re-let to any person other than the previous tenant or the said building is put to use other than personal use, within one year of such possession, the landlord could be punished with fine and the tenant could apply for restoration of possession of the said premises to him. The respondents/landlords have discharged the onus and have proved the personal bonafide need in good faith for premises in question which evidence could not be satisfactory rebutted by the appellant/tenant Habib Bank Limited, hence the finding arrived at by the learned Rent Controller cannot be disturbed or set aside in this appeal being unexceptionable in view of evidence on record therefore the same is maintained. Next contention of the learned counsel for respondents is that learned Rent Controller has erred in holding that the appellants/tenants Habib Bank Limited have not committed default in payment of rent. The respondents/landlords in para 5 of the ejectment application have stated .that the appellants/tenants have failed to pay rent for the months of March and April 1987 at the agreed rate of rent ofRs. 1,500/- per month. Ali Raza in counter-affidavit in evidence in para 7 has stated that appellants/tenants Habib Bank Limited have not pid rent for March and April 1987 as would be evident from Misc. Rent Appln. No. 922/87 made under Section 10 of the Rent Ordinance where rent for the months of May and June 1987 was deposited on 4-7-1987. Ali Raza respondents' attorney denied in the crossexamination to ave received rent by way of pay-slip till April 1987 and stated that he did not know if on 23-5-1987 rent for May 1987 was sent by pay-slip through registered post A/D and that on 2-6-1987 rent was sent to respondents by money order. The appellant's attorney Shaikh Saeed Ahmad in paras 6 & 7 of his counter-affidavit stated that appellants/tenants Habib Bank Limited paid rent for the month of March and April 1987 to the respondents through pay slip No. 9669335 being rent, for the month of March 1987 and pay Slip No. 966940 being rent for the month of April 1987 to the respondents/landlords and further that rent for the month of May 1987 was also sent through pay-slip but it was refused and returned undelivered therefore rent for the said month was sent through money order which too was refused therefore rent was deposited in Misc. Rent Case No. 922/87. Shaikh Saeed Ahmad attorney of the tenant Habib Bank Limited in the cross-examination stated that rent from May 1987 was deposited in MRC No. 922/87 and that Annexures 'C', 'D' & 'E' were not the rent receipts for the month of March 1987 and Annexures 'F', 'G' & 'H' were not rent receipts for April 1987. He has stated that respondent's account was closed on 19-4-1987. He has stated that pay-slips issued by the appellants/tenants Habib Bank were deposited in the respondents' aforesaid account No. 93-0 and pay-slips were not deposited in the account as the account was closed. He has admitted that Annexure 'G' pay-slip of 20-4-1987 the amount shown in it has not been credited by the respondents/landlords as per bank record e same has been shown still outstanding. He has admitted that amounts shown in this case have not been received by the respondents/landlords from their account and ( ? ) was outstanding therein. Voluntarily stated that bank has paid this amount and it was the responsibility of the respondents either to encash this amount from this account or not. He has stated that ppellants/tenants have paid rent to the respondents by way of pay-slip but amount was outstanding in bank record because the respondents had not submitted the pay-slip for encashment of that amount. Section 10 of Sindh Rented Premises Ordinance runs :-- "10. Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgement, postal money order receipt or receipt of the Controller, as the case may be, shad be produced and accepted in proof of the payment of the rent; Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this 'Ordinance." The above provision of'law prescribed the mode of payment whereby in absence of any mutual agreement between landlord and tenant rent shall be paid not later than 10th of next following month for which the rent is due and the same shall be paid to the landlord who shall acknowledge the receipt of tie same in writing but where the landlord has refused or avoided to accept the rent, it be sent by postal money-order or be deposited with the Controller having jurisdiction in respect of the premises. There is no such mode of payment of rent by pay-slips as has been followed by the appellants/tenants Habib Bank Limited. However, if it was the practice then practice should have been established by the appellants/tenants but the same has also not been established by the evidence on record. Besides there v is no proof of the payment of rent for the months of March and April 1987 having been made to the respondents/landlords. The appellants/tenants have filed a photo copy of voucher prepared by their office but there is nothing to show that this amount of voucher dated 31-3-1987 was credited in the account of the respondents/landlords. I may further point out that voucher of pay slips No. 966935 and 966936 dated 31-3-1987 has been filed in Rent Case No. 979/88 the copy of the same has also been filed in Rent Case No. 978/88 when the premises in two rent cases are quite different and belonged to different landlords. It is not possible that on the basis same one voucher showing the same number of pay-slips of same date and same amount, the rent for March and April 1987 in respect of two different tenements could be paid to two different landlords. In addition to the above, the said voucher would not prove itself the payment of rent having been made to the landlord. It would not be out of place to state that only one photo stat copy of counter-foil of pay-slip No. 966935 dated 31-3-1987 for the sum of Rs. 1,500/- only has been filed. No counter-foil of pay-slip No. 966940 dated 20-4-1987 as stated in para 6 (ii) of affidavit-in-evidence of Shaikh Saeed Ahmad attorney of appellant's bank has been filed or produced in this case. The required bank statement of the respondents/landlords should have been produced to show that the ainount stated in the voucher was credited in the account of the respondents/landlords which the appellants/tenants Habib Bank Limited have failed to produce. There appears to be something wrong with the appellants/tenants bank that they have failed to produce relevant receipt and pay-slip in respect of each case separately. Money-order coupon has been filed but no money-order postal receipt has been filed to show that rent for the month of May 1987 was tendered to the respondents/landlords. There is nothing on record to show that the rent was refused by the respondents/landlords. No post-man has been examined nor any certificate of refusal has been brought on record from the postal department to prove the fact of refusal of money-order for the month of May 1987. Admittedly, in this case there is no evidence at all for the payment or tender of rent for the months of March and April 1987. The appellants/tenants themselves state that they have made deposit of rent for the months from May to August 1987 on 4-7-1987 as per photo copy at page 119 of'the R & P of this case whereby an amount of Rs. 6,000/- was deposited. As per photo copy of lease deed dated 15-2-1969 in para 2, advance rent for a period of five years amounting to Rs. 90.000/- from 1-5-1967 was paid at the rate of Rs. 1,50Q/- per month out of which an amount of Rs. 750/- was to be adjusted from the total advance every month while the remaining sum of Rs. 750/- of monthly rent was to be paid per month before the 10th of every month. As per para 5 of the lease-deed balance amount of Rs. 750/- for monthly rent was to be paid on 'or before the 10th of every month. After the expiry of ten years lease period, the monthly rent in view of lease-deed was also payable before the 10th of every month after the same has become due which would mean that rent for the month of May 1987 was to be paid by 10th of June 1987 as per terms of deed which term being not inconsistent with the provisions $f Rent Ordinance 1979 would continue to operate even after the expiry of lease. Reference is made to Mrs. Zarina Khawqja vs. Agha Mahboob Shah (PLD 1988 SC 190) and Syed Asghar Alt Imam vs. Muhammad Mi (PLD 1988 SC 228). In the instant case rent for the month of May 1987 was not deposited by 10th of June, 1987, but was deposited on 4-7-1987 therefore there was default in the payment of rent for the month of May 1987 also. So far the rent for the months of March and April 1987 the appellant's attorney has admitted that the respondents/landlords have not deposited the pay-slips in their account therefore the same amount has not been credited and further that the account was closed on 19-4-1987 therefore it could not be deposited there, which would mean that the appellant/tenant knew that the rent has not been tendered to the respondents/landlords hence it was their duty to have sent the rent through money order to the respondents or should have deposited rent with the Rent Controller having jurisdiction but the rent for the months of March and April 1987 was not sent by money-order and the photo copies of Money-order coupon and voucher and one counter-foil of pay slip produced would not prove the tender of rent as required by Section 10 of the Rent Ordinance. Entire evidence produced has proved beyond any shadow of doubt that the appellants/tenants Habib Bank Limited did not pay rent for the months of March and April 1987 to the respondents/landlords and deposited rent for the month of May, 1987, after due date therefore the appellant/tenant Habib Bank Limited became defaulter under Section 15(2)(ii) of the Rent Ordinance. The finding of the Rent Controller is erroneous in law and is based on misappreciation of the evidence on record and the case law therefore the same is set aside and the appellants/tenants are held to be defaulter within the meaning of Section 15(2)(ii) of the Rent Ordinance. The contention of learned counsel for appellants/tenants in Appeal No. 573/92 has no merit, consequently, the findings of the Rent Controller on Issue No. 1 are maintained while finding on Issue No. 2 are reversed holding the appellants/tenants to be defaulter in the payment of rent thereby Appeal No. 573/92 is dismissed. So far the Appeal No. 601/92 filed by the appellants/landlords against the finding on Issue No. 2 is incompetent as he was granted relief of ejectment against the appellants/tenants Habib Bank Limited on the ground of personal requirement in good faith. Reference is made to Mrs. Ruby Misso vs. Mrs. Kafiiz Fatima and others (1990 CLC 1320) wherein learned Judge in Chamber held that landlady's appeal against findings of issue of default and requirement for personal use was not maintainable in law, when order of ejectment had been passed on other grounds but the landlady or landlord would be competent to put forward, her arguments to negate-the findings of Rent Controller which were against him or her, in the appeal filed by the tenant. Reference is made to Abdul Haq and another vs. Syed Basharat Ali (1985 CLC 1429) wherein learned Judge in Chambers at age 1432 held :-- "The legal position that emerges from the above authorities is that in the case of ejectment filed under the Rent Ordinance, the successful party cannot go in appeal in respect of the points decided against such party, as the said party cannot be regarded to have been aggrieved by the order of the Rent Controller within the meaning of the said Ordinance. There is no provision in the Rent Ordinance enabling such party to file cross-objections with regard to the decision of the Rent Controller on the points decided against the said party. However the said party can agitate the points decided against him in course of hearing of the appeal filed by the aggrived party, while supporting the order passed in its favour." Accordingly, 1 have considered the arguments of Miss. Mehrunnisa, learned counsel for the respondents in appeal filed by the appellants/tenants in FRA No. 573/92. In view of my findings on both the issues, Appeal No. 573 of 1992 is dismissed, so also FRA No. 601/92 is dismissed being incompetent in view of the observations made above. Accordingly, appellants/tenants Habib Bank Limited are directed to hand over vacant possession of the premises in question to the respondents/landlords within 120 days from the date of passing of this order subject to deposit of rent for the said period. (K.K.F.) • ' Appeal dismissed.

PLJ 1996 Karachi 104 PLJ 1996 Karachi 104 Present: HAMID ALI MlRZA, J. ALI ASGHAR-Appellant versus MUHAMMAD RAMZAN GHAURI and two others-Respondents. F.R.A. 347 of 1993 dismissed on 24-10-1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979) —S. 21 read with Section 12 (2) and Order 1 rule 10 CPC-Contention of appellant was that in ejectment proceedings he was not made party although he was co-tenant-Ejectment order was obtained by respondents by fraud and misrepresentative hence was liable to be set aside-Actual tenant respondent No. 3 made a petition for leave to appeal against order of dismissal of appeal, before Hon'ble Supreme Court which was dismissed--Up till then, co-tenant was not on scene but appeared in . execution proceedings after disposal of petition to leave to appeal by Supreme Court of Pakistan-This all would show that this appellant was set-up by Respondent No. 3 to obstruct and cause delay in execution ef orders lawfully passed by competent courts-Held: Application was made with object of obstructing execution of lawful orders-Held further Appellant was not co-tenant at all-Appeal dismissed. [Pp. 105 & 109]'A & B Mr. IzharAlam Farooqi, Advocate for Appellant. Mr. S. A. Majeed, Advocate Respondent No 1 and 2. Nemo for Respondent No. 3. Date of hearing: 24-10-1995 judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance 1979 (hereinafter called Rent Ordinance) directed against an order dated 26-4-1993 passed by learned II-Senior Civil, Judge and Rent Controller Karachi Central in Rent Case No. 165/88 (Muhammad Ramzan Ghauri And Another Vs. Safdar Ali Khan) whereby an application under Section 12(2) and an application under Order 1 rule 10 CPC filed by the appellant were dismissed hence this appeal. The brief facts are that one Mian Allah Rakha father of Respondent No. 1 and 2 had inducted Respondent No. 3 as tenant in respect of Property No. 7, Block-FV-C, Nazimabad, Karachi, admeasuring 600 Sq. Yds. as per 'agreement dated 19-9-1969 where the Respondent No. 3 was carrying on business in the name of A-One Cleaners in Shop Nos. 3 and 4. Thereafter the said Allah Rakha in the year 1973 gifted the said property to Respondents No. 1 and 2 who filed Ejectment Application No. 3270/74 against Respondent No. 3 and the said matter was compromised and fresh tenancy agreement was executed between Respondents No. 1 and 2 on one part and Respondent No. 3 on the other part on 23-8-1981 consequently Rent Case No. 3270/74 was disposed off on 10-9-1981 but thereafter Respondent No. 3 failed to pay rent therefore Ejectment Application No. 1057 of 1988 was filed by Respondents No. 1 and 2 against Respondent No. 3 on the ground of default in the payment of rent but the Respondent No. 3 in his written-statement stated that he was depositing rent in Misc. Kent Case No. 4286/85 therefore the Respondents No. 1 and 2 did not pursue the Ejectment case but thereafter the Respondents No. 1 and 2 filed another ejectment Case No. 165/88 in the Court of H-Senior Civil Judge Rent Controller against Respondent No. 3 on the ground of default, personal need and impairing the material value and utility of (Jie properly which application of ejectment was allowed on merits as per order dated 15-4-1990, against which Respondent No. 3 filed F.R.A. No. 243/90 which appeal was dismissed for non-prosecution on 8-11-1990 thereafter restoration application was also dismissed on 1-9-1991 and then second restoration application was also dismissed on 15-9-1992 and then the espondent No. 3 against the last order of this Court made application for leave to appeal before the Supreme Court of Pakistan by means of Civil Petition No. 468-K of 1991 which too was dismissed on 28-12-1991, where after the Respondents No. 1 and 2 filed execution application before the II-Senior Civil Judge and Rent Controller Karachi Central for writ of possession against Respondent No. 3 where the present appellant Ali Asghar moved an application under Section 12 (2) and another under Order 1 rule 10 CPC which applications were heard and dismissed as per impugned order against which the present appeal has been preferred. I have heard the learned counsel for the parties and perused the record and proceedings and case law cited by the parties. Mr. Izhar Alam Farooqui, learned counsel for the appellant, has argued that in the ejectment proceedings (Rent Case No. 165/88) he was not made party and the Respondents No. 1 and 2, being in collusion with the Respondent No. 3 got ejectment order passed in respect of'the property in dispute against him though he was co-tenant with the Respondent No. 3, should have been joined as party in the proceedings thei'efore the said ejectment order was obtained by the respondents by fruad and mis­ representation hence was liable to be set aside under Section 12 (2) of the C.P.C. He has placed reliance upon Fazal Ilahi Mills Vs. Miss. Abida Reasat Rizvi (1993 SCMR 226), Abdur Rahim And Others Vs. The State (1993 SCMR 668), RamaMotibhai Vs. Dalwadi Tupoo (AIR 1956 Bombay 264) and Habib Ahmad Vs. Muhammad Siddiq Mazhari (1990 ALD 228) in support of his contention. Mr. S.A. Majeed, learned counsel for the respondents, has argued that the appellant is not co-tenant of Respondents No. 1 and 2 but has been set-up by Respondent No. 3 to obstruct and delay the execution of the order passed by the competent courts and in support of his contention has relied upon the certified true copies of the proceedings between the Respondents No. 1 and 2 on one part and the Respondent No. 3 on the other part filed by him. Learned counsel for the Respondents No. 1 and 2 has filed the following documents with this case :— (i) Certified true copy of Rent Case No. 3270/74 wherein the Respondents No. 1 and 2 alongwith their brother has sued the Respondent No. 3 Safdar Ali under Sectfon 13 of the West Pakistan'Urban Rent Restriction Ordinance 1959. (ii) Written-statement filed by Respondent No. 3 Safdar Ali in Rent Case No. 3270/74. (iii) Certified true copy of the application for withdrawal of Rent Case No. 3270/74. (iv) Certified true copy of Misc. Rent Application No. 4286/85 filed by Respondent No. 3 under Section 10 of Sindh Rented Premises Ordinance 1979 requesting the Rent Controller to allow him to deposit the rent in Court and order passed by the Rent Controller. ' (v) Certified true copy of application filed by Respondents No. 1 and 2 and their brother Muhammad Mukhtar for withdrawal-of rent, deposited by Respondent No. 3 Safdar Ali. (vii Certified true copy of application moved by Respondents No. 1 and 2 and their brother Muhammad Mukhtar for withdrawal of rent deposited by Respondent No. 3 Safdar (vii) Certified true copy of application filed by Respondents No. 1 and 2 and their brother Muhammad Mukhtar deposited by Respondent No. 3 Safdar Ali. (viii) Certified true copy of application moved by Respondents No. 1 and 2 and their brother Muhammad Mukhtar for withdrawal of rent deposited by Respondent No. 1 Safdar Ali. (ix) Certified true copy of Rent Case No. 1057/88 filed by Respondents No. 1 and 2 against Respondent No. 3 Safdar Ali under Section 15 of Rent Ordinance. (x) Certified true copy of written-statement fileJ by Respondent No. 3 Safdar Ali in Rent Case No. 1057/88 (xi) . Certified true copy of statement of rent deposits? by Respondent Safdar Ali in Rent Case No. 1057/88 (xii) • Certified true copy pf counter-affidavit filed in Civil Suit N > 208/92 by present appellant Ali Asghar against K. spon,!onts No. 1 to 3. (xiii) Certified true copy of-order passed on an application undei Order 39 Rule 1 and 2 CPC. Learned counsel for the respondents No. 1 and 2 has argued that the above certified true copies would show that present appellant was nut co-tenant of the Respondents No. 1 and 2 when the Respondent No. 3 even in the written-statement filed in Rent Case No. 3270/74 did not say that the present appellant as co-tenant with him in respect of the property in question. The Rent Case No. 3270/74 was also compromised between the respondents No. 1 and 2 on one part and Respondent No. 3 on the other part but there was no existence of present appellant. Respondent No. 3 made application under Section 10 of the Rent Ordinance in Misc. Rent Appln. No. 4286/85 for the deposit of rent but in that application also Respondent No. 3 Safdar Ali did not say that present appellant was co-tenant of the premises in dispute with him. Respondents No. 1 and 2 and their brother Muhammad Mukhtar withdraw the rent but even then appellant did not come forward to say anything in the Rent Case No. 1057/88 which was filed by Respondents No. 1 and 2 against Respondent No. 3 and then also there was no existence of present appellant. In the written-statement filed by Respondent No. 3 in Rent Case No. 1057/88 on 12-2-1989 there was no existence of present appellant, even the rent was being deposited by Safdar Ali. The appellant for the first time came into picture when he filed Suit No. 208/92 in the Court of I-Senior Civil Judge Karachi Central in which Respondent Safdar Ali filed counter-affidavit supporting the appellant Ah Asghar by stating that he was not made party by Respondents No. 1 and 2 in the Rent Case No. 165/88. In fact the said appellant appeared on the scene only after the dismissal of Petition for leave to appeal filed by Respondent No. 3 in the HonTble Supreme Court of Pakistan prior to that there was no mention of appellant Ali Asghar at all, as he was not tenant of the Respondents No. 1 and 2. Order dated 22-8-1993 passed on an application under Order 39 Rules 1 and 2 CPC in Suit No. 208/92 would also show that the appellant Ali Asghar failed to prove prima facie case for the grant of temporary injunction so much so, that the plaint filed by the appellant was rejected as being not maintainable under the law. The counsel for the appellant has also produced photo-stat copy of an order passed in FRA No. 243/90 on an application (CMA No. 398/95) wherein the appellant has prayed to set aside the ejectment order dated 15-4-1990 passed by the II-Rent Controller Karachi entral but the said application was also dismissed as not maintainable on the ground that the appeal filed by appellant Safdar Ali was dismissed in default on 28-10-1990 and thereafter three restoration applications one after the other were dismissed and the last was dismissed on 15-9-1991 and the" said Ali Asghar has now claimed to be the co-tenant with Safdar Ali the Respondent No. 3. It was further observed in the said order that it was within the jurisdiction of the II-Rent Controller to entertain and decide the applications moved by appellant Ali Asghar under Section 12(2) and Order 1 Rule 10 CPC. In Rama Motibhai Vs. Dalwadi Tupoo (AIR 1956 Bombay 264) case it was observed that one owner on behalf of all co-owners can maintain an action but if an action is to be against a tenant then all the co-owners must be joined. In Rent Case No. 165/88 both co-owners/landlords had sued the tenants Safdar Ali for ejectment therefore the cited case is distinguishable to the facts of the instant case. In 1993 SCMR 226 and 1993 SCMR 668 it will be seen that there is no such case of present nature, perhaps there has been some misquotation by the learned counsel for the appellant. Learned counsel for the respondents has placed reliance upon Allah Dad Vs. Board of Revenue Sindh and Five Others (PLD 1981 Karachi 73) case wherein the learned Judge in Chamber observed that if the contents of affidavit of the appellant are not controverted by the other side then the contents of the same shall be deemed to have gone unchallenged. Government of Sindh and Another Vs. Chaudhry Fazal Muhammad And Another (PLD 1991 SC 197) wherein the Hon'ble Supreme Court-has held.at page 200 that "a perusal of provisions of Section 12 (2) of CPC would show that a person could challenge the validity of (i) judgment, (ii) decree or (iii) order on the plea of (a) fraud, (b) misrepresentation and (iii) want of jurisdiction by application to the Court which passed the final judgment, decree or order." In the case of Tanveer Jamshed and Another Vs. Raja Ghulam Haider (1992 SCMR 917) the Hon'ble Supreme Court has held at page 925 that "question whether third party was not party to the rent case can file application under Section 12 (2) CPC before Controller, came-up for consideration in the Supreme Court before the same bench, which seized of the present appeal in an unreported case of Mst. Fehmida Begum Vs. Muhammad Khalid and another in Civil Appeal No. 8-K of 1989, in which the unanimous conclusion is that a stranger to the proceedings or a third party in such circumstances has two remedies open to him. He can apply to the Rent Controller under Section 12 (2) CPC for recall or review of order passed on fraud or file a separate suit but he can pursue only one remedy which he has initiated first or earlier in point of time, because having done so, his right to the other remedy shall stand forfeited in order to avoid onflict of opinion in two forums We, therefore, hold that the said suit was competently filed and his application under Section 12 (2) CPC was liable to be dismissed by the Rent Controller on the ground stated above." In the instant case the appellant filed an application under Section 12 (2) CPC on 17-5-1992 and thereafter had filed §uit No. 208/92 and the plaint was rejected under Order 7 Rule 11 CPC on 22-8-1993 whereas the application' under Section 12 (2) CPC was dismissed on 26-4-1993 thereby followed both forum of remedies instead of one but in both forums appellant failed. In the case of Mst. Hasina Khatoon and two others Vs. United Bank Limited and six others (1991 MLD 1088) the learned Judge in Chamber at page 1093 observed that "when it is clear that an application under Section 12 (2) CPC is, on its very face, improper, malafide and having been made only to protract the proceedings and to abuse the process of Court, it can be dismissed without framing any issue or recording any evidence." In the case ofBashir Ahmad Vs. Muhammad Farooq and Fifteen others (1989 MLD 433) the learned Judge in Chamber at page 440 has observed that "it is unfortunate that the respondents No. 1 to 3 got a favourable order from the Rent Controller on 28-5-1985 but they have not been able to reap fruit of such an order, although the same was maintained upto fhe level of the Supreme Court of Pakistan, where the petitioner was one of the respondents. It cannot be believed that the petitioner had no knowledge of the proceedings in the Supreme Court of Pakistan. After losing the matter upto the Supreme Court of Pakistan, the petitioner has filed the present application which is motivated to further delay execution of the order dated 28-5-1985" In the instant case it would be observed that Respondent No. 3 Safdar Ali who was a tenant of Respondents No. 1 and -2 continued to be a party in the proceedings from 1974 till the Ejectment Case No. 165/88 was filed by Respondent Nos. 1 and 2 against him and then the said Respondent No. 3 filed FRA No. 243/90 which too was dismissed and thereafter three restoration applications were also filed by the Respondent No. 3 and he too made a petition for leave to file appeal against the order of dismissal of the appeal, before the Hon'ble Supreme Court which too was dismissed on 28- 12-1992, till then, the present appellant was not on the scene but appeared 3 in the execution proceedings after the disposal of petition to leave to appeal by the Supreme Court of Pakistan. This all would show that this appellant Ali Asghar was set-up by Respondent No. 3 to obstruct and cause delay in the execution of orders lawfully passed by competent courts and got filed Suit No. 208/92 and an application under Seclion 12 (2) CPC which on the face of it were malafide made with the object of obstructing the execution of lawful orders and the Learned Rent Controller was justified in rejecting the application under Order 12 (2) as well as an application under Order 1 rule 10 CPC considering that the appellant was not co-tenant at all in view of the evidence on record. The contentions raised by the counsel for the appellant have no merit and substance, consequently the appeal is dismissed with costs. (A.P.) Appeal dismissed.

PLJ 1996 Karachi 110 PLJ 1996 Karachi 110 Present: HAMID ALI MIRZA, J. FEROZ KHAN-Appellant versus SYED ZOHA-Respondent F.R.A. No. 131/1993, dismissed on 24-10-1995. Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 15--Tenant-Ejectment of-Order of--Challenge of-Default-Ground of- -Whether appellant has committed a wilful and deliberate default in payment of rent-Question of--It has been proved by respondent/landlord that rent from January till August was hot paid/tendered by appellant/tenant-Rent for month of September and October was deposited in the name of dead person would not be due tender in eye of law-Held: Appellant was defaulter-Appeal dismissed. [Pp. 115 & 116] A Mr. ArifBilal Sher Wani, Advocate for Appellant Respondent in person Date of hearing: 24.10.1995 judgment This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 10.2.1993 passed by V Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case,No. 826/1991, Syed Zoha v. Feroz Khan whereby ejectment application filed by the respondent/landlord was allowed and appellant/tenant was directed to hand over the vacant possession within three months to the respondent from the date of the impugned judgment Brief facts of the case are that respondent/landlord filed an application for ejectment under Section 15 of the Rent Ordinance against the appellant/tenant in respect of ground floor of property No. 143/3, Sharfabad, Karachi-East which was on rent at the monthly rate of Rs. 1700/- per month excluding electricity and sui gas charges since 1980 on the ground that the appellant/tenant has filed to pay rent to him from January, 1990 till November, 1991. The appellant/tenant filed written statement stating therein that the property in question belonged to the wife of the respondent on whose behalf the latter was collecting rent from the appellant/tenant even during her life time and that he has paid rent of August, 1991 at the agreed rate of rent of Rs. 1700/- per month but the respondent/landlord made an enhanced demand of Rs. 5,000/- per month as rent instead of Rs. 1700/- per month therefore he deposited rent from the month of September, 1991 in MRC No. 686/91 where he has been depositing, rent regularly and further that the respondent/landlord has been collecting rent from the appellant/tenant at his own convenience and whenever respondent made such demand from him, the appellant paid him rent immediately therefore the appellant was not defaulter in the payment of rent. On the pleadings of the parties, learned Rent Controller settled the following issues :. (i) Whether the opponent has committed a wilful and delibe­ rate default in payment of rent ? (ii) What should the order be ? The respondent/landlord filed his affidavit-in-evidence and closed his side so also the appellant/tenant filed his affidavit-in-evidence and closed his side. Both the parties were cross-examined. After recording the evidence of the parties as said above and hearing the learned counsel for parties, learned Rent Controller answered issue No. 1 in affirmative and ordered the eviction of the appellant/tenant as per impugned judgement. I have heard learned counsel for appellant and the respondent in person and perused the R&P of the case and the case law cited. Mr. Arif Bilal Sherwani, learned counsel for appellant has argued that the finding of learned Rent Controller as to the default in payment of rent was erroneous and not based on proper appreciation of evidence on record and the case law, so also the cases cited in the judgment were distinguishable to the facts of the instant case, tie has placed reliance upon 1986 CLC 1280, 1990 CLC 1218, 1991 MLD 651-1048, & PLD 1985 Kar. 741 in support of his contentions. The respondent in person has argued that the appellant/tenant has not paid him rent since January, 1990 and that if he would take oath on Holy Qur'an that he has made payments, he would not press his claim for his ejectment. He has further argued that if he would have been dishonest then he could have said that appellant/tenant had not paid rent even prior to January, 1990 because there was no evidence with the appellant to disprove his statement. The respondent/landlord in the ejectment application has said that appellant/tenant has not paid him rent from January, 1990 till November, 1991 at the rate of Rs. 1700/- per month and the said statement has been reiterated by him in his affidavit-in-evidence. Besides the respondent has stated in the affidavit-in-evidence that he has been issuing receipts on plain paper to the appellant/tenant whenever he paid rent. The appellant/tenant in his written statement has stated that he has paid rent till August, 1991 to the respondent/landlord and from September, 1991 he has deposited rent regularly with the Controller in MRC No. 686/91 and that the respondent/landlord never gave him rent receipt for the rent payment which he made. The appellant/tenant has reiterated his statement in the counteraffidavit stating that he has paid rent to the respondent/landlord till August, 1991 and was never issued rent receipt and thereafter he refused to increase rent from Rs. 1700/- to Rs. 5,000/- therefore he deposited rent in MRC No. 709/91 as per annexure 0/1. The respondent in the eross has stated that: "It is not correct to suggest that I do not use to give receipts to my tenants. It is correct that I have not produced counter-foil of receipts before this Court. Voluntarily says that I approached the opponent to sign the rent agreement but he refused to, hence I have not received (should be given) him receipt. I have issued receipts for two months and after that I have not issued the receipts. The opponent is my tenant since January 1980, but he has failed to pay rent since January, 1990 hence filed present application in December, 1991". The appellant in the cross examination has stated that: "Before and after the death ofMst. Hajra, I used to pay the rent to her husband Syed Zoha. It may be correct that Mst. Hajra has expired in February, 1989. It is correct that I have not mentioned in my present affidavit that when the applicant has asked me for enhancement of the rent amount. I have offered the applicant to increase the rate of rent from Rs. 1700/- per month to Rs. 2.000/- per month but have not mentioned this in my affidavit.......It is correct that I do not go to the house of applicant for payment of rent amount. I used to pay the rent to the applicant Zoha Sahib as landlord. It is correct that I have no documentary proof that landlord has ever refused to receive the rent. I used to deposit the rent in Misc. Rent Case No. 790/91 from 27.11.1991. It is correct that in Suit No. 1682/91 filed by me, applicant in his objections has stated that .the plaintiff (opponent) was defaulter since January 1990. I am already on oath and not willing to take another special oath. It is correct that I have not sent rent amount through money order. It is a fact that I have not deposited the rent in the Court since 1990 till today." Section 10 of the Rent Ordinance runs :-- "10. Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, "it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance.'.' Under the above said section only three modes of payment of rent to the landlord have been provided; (1) rent be paid to the landlord; (ii) be sent through postal money order and (iiii be deposited with the rent Controller within whose jurisdiction premises is situated. In the instant case the appellant/tenant has been paying vent to the respondent/landlord without receipt from 1980 and since then there has been demand of enhancement of rent by the respondent but the latter did not state about the non-payment of rent by the appellant for the prior period to January, 1990 till November, 1991 and the respondent filed ejectment application on 11.12.1991. The appellant has admitted that he never gave any notice to the respondent thatformer was not being issued rent receipts. The appellant has not produced any evidence in support of his statement that he offered rent for the month of September, 1991 at Rs. 1700/- per month but it. was refused. "On the contrary, appellant's statement that he offered enhanced rate of rent of Rs. 2.000/- is falsified by the fact that when the appellant has never been to the respondent for payment of rent then how he would have made such offer. Besides, he did not state this fact of making offer Rs. 2,000/- in the written statement. The appellant has not even stated that he has made such offer of Rs. 2,000/- per month as rent to the respondent when he came personally to him. It does not appeal to me that when the appellant would pay rent to the respondent for the month of August, 1991 and latter would tell the appellant that he would not accept less than Rs. 5,000/- as monthly rent and would also at the same time receive Rs. 1700/- rent for August, 1991. It is also settled law that demand of enhanced rate of rent would not absolve the tenant to tender the agreed rent and the tenant would be bound to make payment to the landlord within time at the same rate. It is strange that all of sudden, on alleged refused to accept the agreed rent by the respondent, the appellant started making deposit of rent in the office of Rent Controller that also for the month of September and October, 1991 as per photocopies of receipts dated 20.11.1991 and 30.10.1991 respectively in the name of deceased Mst. Hajra Khatoon when the appellant knew as per admission in cross-examination that she expired in February, 1989 and further that even during the life time of landlady, the appellant was making payment of rent to the present respondent, the husband of landlady. The deposit of rent in the name of dead person in the circumstances of the case, would not be due tender of rent in the eye of law. Reference is made to Qadri Brothers and Workshop v. Masood Hussain Antria Q991 CLC 1042). Testimony of the respondent in the instant case is confident inspiring, reliable and appeared to be straight forward and honest as to his statement that the appellant did not pay rent to him from January, 1990 till November, 1991. Mere fact that the respondent did -not issue rent receipts would not mean that it should be presumed that the appellant/tenant has made a payment from January, 1990 to August, 1991 to the respondent when on oath he has denied receipt of payment of rent. In case the appellant/tenant could apprehend that the respondent/landlord might seek his ejectment in the month of October, 1991 whereby he deposited rent with the Controller then why he did not apprehend the same earlier when he was not being issued rent receipts by the respondent considering that dispute about enhancement of rent was there between the parties since long. In absence of reliable and satisfactory evidence in the circumstances of the present case, the testimony of the appellant/tenant cannot be said to be sufficient to prove the payment of rent having been made till August, 1991 to the respondent/landlord. The appellant/tenant should not have paid rent without obtaining rent or without any other documentary proof of payment of rent and in case rent receipt was <not issued on the first occasion then the rent should have been sent by money order or should have deposited in the Court but this was not done therefore the appellant/tenant cannot escape the liability and consequences as Had down under the rent laws. The appellant/tenant has not examined any other witness to corroborate his statement that rent was paid by him from January, 1990. to August, 1991 but he was not issued receipt. The defence which has been taken by the appellant if allowed to succeed it would perpetuate the wrong as in eveiy case tenant could take this plea of making payments to the landlord without having receipt with him and thereby flout the provision of Section 10 of the Rent Ordinance which has been provided in the rent Ordinance to safeguard the rights of the both parties. It has come in evidence that the respondent was making demand for enhancement of rent since long but yet the appellant has been making payment of rent without getting receipt, if it was so, he should have been cautious and should have sent rent through postal money order or deposited it with the Controller long before January, 1990 but he did not so. Now mere his word would not be sufficient to believe him that he has paid rent upto August, 1991. Reference is made to Jabar Ahmad v. Abida Ismail (PLJ 1987 Kar. 280) wherein learned Judge in chamber observed : "That if the tenant does not protest on the refusal of landlord to issue receipts and keeps quiet on account of confidence that he reposes in the landlord then he has to thank himself for his conduct. The presumption in such a case would be that the tenant had not paid rent." Accordingly, the contention of the learned counsel for appellant has no merit and substance. Now there remains case law cited by the learned counsel for appellant. The first case is Mst. Faiyazi Begum (1986 CLC 1280) where the landlord had stated that he has been issuing rent receipts regularly to the tenant which fact was denied by the latter thereof onus was held to be upon the landlord to establish that such receipts were issued as an when the occasion arose. But in the instant case the landlord has himself admitted that he had only issued two receipts that too an plain paper to the appellant/tenant and thereafter he did not issue receipts as the latter did not sign the tenancy agreement and so far other tenants, respondent stated that he has been issuing rent receipts to them. Appellant also did not produce the other tenants of the respondent to prove his statement that they too were not being issued receipts and that the appellant paid rent upto August, 1992 but he was not issued rent receipts, therefore, the facts of the cited case were distinguishable to the facts of the instant case. The next case cited is Fasih Hashmi (1990 CLC 1218) wherein learned Judge in Chamber held that where the tenant has pleaded payment of rent regularly to the landlord but for which no rent receipt was issued and the veracity of the tenant could not be shattered in the cross-examination and the tenant was supported by one witness who stated that the landlord never issued rent receipt to any of his tenants after receipt of the rent from them which fact proved that the landlord had failed to rebut the evidence of tenant that rent was paid for specified period. The facts of the instant case are different to the case cited by the learned counsel for appellant. There is no other evidence from the side of appellant to support the statement of the tenant/appellant that the other tenants paid rent to the respondent but they too were not issued receipts and the appellant paid rent till August, 1992 but no rent receipt was issued to the former. On the contraiy in the instant case the respondent/landlord has frankly admitted to have not issued receipt except the two rent receipts on plain paper. In the case of Fazal Hussain (1991 MLD 651) the landlord had admitted the receipt of certain amounts from the tenant in advance which could have been adjusted, towards the monthly rent and further that landlord suppressed the fact that previously he had filed rent case for eviction therefore the facts of the cited case were different to the facts of the instant case. In Jamshed Baig's (1991 MLD 1048) the tenant has pleaded that landlord never used to issue rent receipts could not find support from the record therefore his eviction was order therefore the said case cited supported the case of the respondents. In Habib Ahmad's case (PLD 1985 Kar. 741) the learned Judge in Chamber held that as the landlord did not care to issue rent receipt in compliance to the mandatoiy requirement of law, therefore, he could not insist the tenant to prove the payment by normal practice by producing there not receipts. The facts of the cited case are different and also distinguishable to the facts of the instant case as in that case the testimony of the tenant was found to be reliable and trustworthy whereas in this case testimony of the respondent has been found to be reliable and trustworthy as to his statement about the non-receipt of the payment of rent for the stated period. In view of the evidence on record it has been proved by the respondent/landlord that rent from January, 19SO till August, 1991 was not paid/tendered by the appellant/tenant and the rent for the months of September, and October, 1991 was deposited in the name of dead person would not be due tender in the eye of law in the circumstances of the case, therefore, the appellant was defaulter within the meaning of section 15 (2) (ii) of the Rent Ordinance. Impugned Judgment is legal and based on proper appreciation of evidence and the law, therefore, the same is maintained and the appeal has no merit and substance hence the same is dismissed with no order as to costs with the direction to the appellant to hand over the vacant possession to the appellant to hand over the vacant possession to the respondent within 60 days subject to the conditions that he would deposit the rent for the said period with the Rent Controller. A.P. Appeal dismissed

PLJ 1996 Karachi 116 PLJ 1996 Karachi 116 Present: HAMID ALT MlRZA, J. M/S. PAKISTAN BURMAH SHELL LTD.--Appellants versus KHALID AHMED and another-Respondents F.R.A. No. 371 of 1991 dismissed on 23-10-1995 Sind Rented Premises Ordinance, 1979 (Act XVII of 1979)- —S. 14~Tenant--Ejectment of--Challenge to-Whether Respondents are entitled for ejectment of Appellants from demised premises U/S 14 of Sind Rented Premises Ordinance, 1979-Question of--Testimony of respondent could not be shaken in cross-examination by appellant and no rebutting evidence is adduced to show that respondents were in occupation of any other non-residential building-Expression "Personal use" specified in Section 14 of Rent Ordinance would include use of owner or spouse or son or daughter-Contention that respondents have approached court for relief of possession long after attaining age of 60 years be-deemed to have been waived their right of eviction—It has no merit and substance-Held: Impugned judgment is based on proper appreciation of evidence-Appeal dismissed. [Pp. 121 & 123] A, B, C & D Mr. Syed Anyad Hussain, Advocate, for Appellants. Mr. Khalil-ur-Rehman, Advocate, for Respondents. Date of hearing: 23.10.1995 Judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order dated 30.5.1991 passed by learned IV Senior Civil Judge & Rent Controller, Karachi-East, in a Rent Case No. 496/89, Khalil Ahmad and another v. M/s. Pakistan Bu'rmah Shell Ltd. whereby an ejectment application filed under Section 14 of the said Rent Ordinance was allowed and the appellants/tenants were directed to hand over vacant possession of the premises/commercial plot No. SB-2, situated in KDA Scheme No. 1, Drig Road, Karachi, to the respondents within a period of sixty days from the date of the impugned order. Brief facts of the case are that the respondents are the landlords of the commercial plot No. SB-2, situated in KDA Scheme No. 1, Drig Road, Karachi, and the appellants are the tenants in respect of the above said plot by virtue of Lease Deed dated 3.7.1969 at the monthly rent of Rs. 18QO/- per month against whom ejectment application No. 496/89 under Section 14 of the Rent Ordinance was filed in the Court of Rent Controller, Karachi-East on 21.5.1989 on the ground that the respondents/landlords have attained the age of sixty yetfrs and required the above said plot of land for their personal use and for the use of their grown up sons who have to be settled after construction of a commercial complex on the said plot therefoi'e the respondents/landlords served a notice as required by Section 14 of the Rent Ordinance upon the appellants on 12.3.1989 to which appellants also sent a reply dated 26.3.1989 denying the statement made in the said notice but the appellants/tenants failed to vacate the plot therefore the above said ejectment application was filed. The appellants/tenants filed written statement stating therein that they were in possession by virtue of the Lease Deed dated 10.3.1969 which initially was-for the period of ten years with option to extend lease for further period of ten years on the same terms and conditions as mentioned in the above said lease deed which was extended under lease dated 3.7.1979. It was denied that lease period has expired on 9.3.1989. The appellants/tenants further stated that the respondents had previously also filed ejectment application No. 1048/80 under Section 15 of the Rent Ordinance on the ground of their personal need and for the requirement of their grown up sons which application was granted by the learned Rent Controller on 15.9.1983 but the said ejectment order was set aside by this Court in FRA No. 804/83 on the ground that respondents/landlords were not entitled to have the possession of the said plot on the ground of personal requirement as the period of the lease deed had not expired then. It was further stated by the appellants/tenants that the present ejectment application was filed by the respondents as they refused to enhance the rate of rent to Rs. 15,000/- per month considering that the appellants had made huge investment by raising structure of permanent character and had installed a petrol pump on the said plot which could not be conveited into commercial complex under the Karachi Building Control Regulations and further that the respondents were already having other properties in their occupation. On the pleadings of the parties, learned Rent Controller settled two issues : (i) Whether the applicants are entitled for ejectment of the opponents from the demised premises under Section 14 of Sind Rented Premises Ordinance, 1979? (ii) What should be order be ? The respondents/landlords filed affidavit-in-evidence of Mr. Khalil Ahmad and appellants/tenants filed affidavit-in-evidence of Mr. Waheed Ahmad Sheikh. Both deponents were cross examined by the respective counsel of the parties. Learned Rent Controller after recording the above evidence and hearing the learned counsel, allowed the ejectment application of the respondents. I have heard Syed Amjad Hussain, learned counsel for appellants and Mr. Khalilur Rehman, learned counsel for respondents and perused the record and proceedings of the case and the case law cited by both the counsel. Contentions of Syed Amjad Hussain are : (1) That respondents as per their own admission are in occupation of building owned by them therefore are not entitled to seek ejectment under the said provision of law; (2) That respondents/landlords would be entitled to have the possession under the said provision of law for their personal requirement and not for the requirement of their grown up sons; and (3) That respondent Khalil Ahmad was of 68 years and Ahmad Din was 63 years of age on the date when ejectment application was filed therefore the ejectment application under Section 14 of the said Rent Ordinance having been filed along after attaining the age of 60 years would be not maintainable. Syed Amjad Hussain, learned counsel for appellants/tenants has taken me through the impugned judgment of the learned Rent Controller and has placed his main emphasis on the cross examination of the respondent. The said portion of the cross examination runs : "I required the premises in question for my son Shahid Ahmad. I am not doing any business. Previously I was doing business of bicycles at Kutcheri Road with my brother Ahmad Din & Co. and I was the partner of Ahmad Din & Co. I do not remember the number of shop, namely Ahmad Din & Co. I cannot say whether I and other partner of company purchased the shop. Voluntarily says that it was on rent in the beginning I have got retirement from this business. My son Ilyas is working separately in the name and style of Impo Expo Corporation on Kutcheiy shop. It is another shop which is owned by me. My V- • another son Yousuf is doing business of Motor Parts at Maclean Road at a rented shop ............................. My son Shahid is working at his house He possesses one room for his business of Import and Export in the name of Shahid Trading Co The house at present where I am residing is partly on the main road and partly away from the main road. But it is a corner plot ...My son must be doing business since 1980 in the house. I own commercial building in North Nazimabad which is on ent. But I do not remember the area of commercial plot of North Nazimabad ." Learned counsel for the appellant has placed reliance upon Mst. Zubaida Ismail v. Mst. Zohra Sultana (1989 CLC 1121); Mst. Kalsoom Begum v. M/s. Elite Cone Industries and.another (1989 CLC 969); Matloob v. Mst. Saeeda Khatoon (1988 SCMR 1575); Arshad Butt v. Manzoor Ahmad (1992 CLC 723); Manzoor Hussain v. Naheed Akhtar and 14 others (1991 MLD 724); Hazrat Shah v. Dr. Muhammad Hanif (1992 MLD 318); Bakhsh Elahi v. Qazi Wasid Ali (1985 SCMR 291); Sabir Ali v. Zahoor Ahmad Khan (1988 MLD 31) and Ulfat Hameed v. Mst. Birjis Khatoon (PLD 1982 Kar. 823) in support of his contentions. Mr. Khalilur Rehman, learned counsel for respondents has argued that earlier ejectment application No. 1048/80 was filed under Section 15 of the Rent Ordinance and it failed in the High Court on technical ground that lease period of 30 years has not expired on the date when ejectment was made therefore the present ejectment application under Section 14 of the Rent Ordinance would not be barred and would be maintainable under the law. He has further argued that the respondents/landlords before the expiry of lease period could not have come either under Section 14 or 15 of the Rent Ordinance for ejectment of the appellants on the ground of personal requirement. He has further argued that after the expiry of lease period on 9.3.1989, the present ejectment application under Section 14 was filed on 21.5.1989 therefore the respondents/landlords would be entitled to have possession of the said plot. He has argued that there is no limitation fixed under Section 14 of the Rent Ordinance in respect of the filing of the ejectment application therefore filing of instant ejectment application after three years of attaining the age of 60 years would not effect the right of the respondents to seek ejectment under the Rent Ordinance. He has further argued that there was no evidence on record to show that the respondents were occupying their own commercial premises which could disentitle them .from getting the respondents ejected from the plot in question. He has submitted that the respondent in the cross examination has stated that "I have got retirement from his business" which would not mean that he has retiivJ for all the time to come from doing any other business as well as that in the cross-examination respondent further stated "It is another shop which is owned by me", word "owned" would not mean that the respondent was in occupation of the said shop as it was in possession of his another son Ilyas and further that the respondent in cross stated "My son Shahid is working at his house. He occupies one room for his business Of Import and Export in the name of Shahid Trading Company," which would show that respondent's son Shahid was working in his house, as such the same was not a commercial premises but residential house therefore the respondent could seek possession of the plot in question which was a commercial one for raising commercial complex. He has placed reliance upon Abdul Mqjid v. Mst. »-•,. Naimun Nisa Begum (PLD 1981 S.C. 118); Syed Amjad Ali Shah v. Iqbal ~~~' Ahmad Farooqi and others (PLD 1985 S.C. 242); Abu Bakar and another v. Abdul Haleem (PLD 1991 S.C. 302); Muhammad Rifatullah Alvi v. Imran Ansari (PLD 1990 S.C. 369); Mrs. M.S. Baroba v. Manzoor Ahmad (1992 SCMR 1158); Muhammad v. Dilawar Khan Durrani (1987 MLD 2155); Mst. Zubaida Ismail v. Mst. Zohra Sultana (1989 CLC 1121); Mst. Razia Khatton v. Dr. Roshan H. Nanji and another (1991 SCMR 840) and Amin Akhtar . Jami v. JahangirAlam (1993 MLD 1530) in support of his contentions. Section 14 of the Rent Qrdinance runs : "14. Delivery of} vacant possession. (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or. A person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not .being earlier than two months from the receipt thereof; Provided that nothing in this sub-Section shall apply where the landlord has rented out the building after he has retired or attained the age of sixty years or, as the case may be, has ecome widow or orphan. (2) The landlord shall not be entitled to avail the benefit of sub- Section (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under subSection (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such • force as may be necessary." This Section provides a right to the landlord who is widow (ii) orphan (iii) old person who has attained the age of sixty (iv) Salaried employee due to retire within six months or has retired, to get the rented premises vacated from the tenant except where he has rented out his building after incurring the above said disability or is in occupation of a building owned by him in any locality. In the instant case, the plea of the learned counsel for appellants is that the respondent himself has admitted in the cross that he has retired from the business and was owning another shop and that his son Shahid was carrying on the business of import and export in the name of Shahid Trading Company in one room of his house therefore the respondents being in occupation of the said premises which belonged to him would be dis-entitled from seeking eviction of the respondents from the said plot under Section 14 of the said Rent Ordinance and further that respondent has specifically stated that he required the premises in question for his son Shahid who was already in possession of one room in the house of respondent where he has been carrying on the said business since 1980 when under Section 14 of Rent Ordinance it was only the landlord/respondent who would be entitled to seek eviction of tenant and not for his son. It is correct that son of the respondent is carrying on business in one room of the house since 1980 but the said building being in occupation of the respondent's son could not be said to be a building in occupation of respondent within the meaning of subSection (2) of Section 14 of the Rent Ordinance. I would also say that as the said building is a residential one could not be used for commercial purposes for which eviction has been sought. Reference is made to Abdul Majid v. Mst. Naimun Nisa Begum (PLD 1981 S.C. 118) & PLD 1994 S.C. 716 wherein Supreme Court of Pakistan has held :-- "to our mind subSection (2) of Section 14 cannot be read in isolation from subSection (1) of Section 14. Nexus between personal use for which eviction is sought and premises said to be owned and possessed by the landlord in any locality being imperative, referred to in subSection (2) of Section 14 of the Rent Ordinance." The bar contained in subSection (2) of Section 14 of Rent Ordinance would not be attracted in the instant case as the respondents could not be said to be in occupation of the commercial building for which eviction has been sought against the appellants consideiing also the fact that the room in occupation of the son of respondent was part of residential building while the respondent needed the building for commercial complex for his son Shahid. The testimony of respondent could not be shaken in the cross examination by the appellant and no rebutting evidence in adduced to show that the respondents were in occupation of any other non-residential building of their own. The next contention of the learned counsel for appellant is that the respondent in the cross has admitted that he required the said plot for the use of his son Shahid but Section 14 of Rent Ordinance stated that eviction could be sought against the tenant only by the landlord when the rented premises is required by the landlord personally and not for the use of his children. In fact, the expression "personal use" specified in Section 14 of the Rent Ordinance would include the use of owner or spouse or son or daughter. Reference is made to Mst. Zubaida Ismail v. Mst. Zohra Sultana (1989 CLC1121). In Muhammad v. DilawarKhan Durrani (1987 MLD 2155) case learned Judge in Chamber observed at page 2159 : "Section 14 of the Ordinance provides that the class of landlords specified therein can seek eviction of tenant from the building for personal use. "Personal use" is defined in clause (g) of Section 2 of the Ordinance as the "use of the premises by the owner thei'eof or his wife (or husband) son or daughter." Obviously the expression "personal use" employed in Section 14 of the Ordinance includes the need of the children of the ownerlandlord." In the circumstances, the contention of the learned counsel for appellants that the respondents would not be entitled to seek possession of the plot in question for the use of his son under Section 14 of Rent Ordinance has no merit. The next contention of the learned counsel for appellants is that the respondents have waived their right to get possession of plot in question under Section 14 as they moved the Rent Controller long after attaining the age of 60 years, therefore, they were not entitled to seek eviction of appellants. This contention of the appellants' counsel has also no merit and substance. Under Section 14 of the Rent Ordinance the expression "a person who is due to attain the age of sixty years within the next six months or attained the age of sixty years" does not prescribe any time limitation after one has attained the age of sixty years for seeking eviction under the law. It is not the intention of above provisions of law that as soon as one attains the age of sixty years, he should immediately rush to the Rent Controller for eviction but law intended that within sufficient time after one has attained the sixty years should move the Rent Controller. In the instant case, it is admitted position that earlier application No. 1048/1980 for ejectment was filed under Section 15 in the year 1980 when respondent Khalil Ahmad was 61 years of age but that application could not succeed in FRA No. 804/1983 before this Court on the ground that lease period was subsisting. In fact the respondents we're pursuing the remedy for seeking possession of the plot in question since 1983 but ultimately this Court in FRA No. 804-1983 disallowed the relief of possession to them and thereafter on 21.5.1989, ejectment application was filed when the period of lease expired on 9.3.1989 therefore it could not be said that there has been inordinate delay in approaching the Rent Controller for the relief of possession of plot in question under the law by the respondents. Reference is made to Hafiz Abdul Malik u. Muhammad Ilyas (PLD 1989 S.C. 356) where the Supreme Court of Pakistan allowed eviction application under Section 14 of Rent Ordinance when the landlord had moved ejectment application for over 15 years after attaining the age of sixty years because of past litigation. It wiU not be out of place to mention here that appellants in the written statement have taken up the plea that age recorded in the National Identity Card was not correct and it was not pleaded in the written statement that the respondents have approached the Court for the relief of possession long after attaining the age of 60 years by the respondents but at this appellate stage this new plea has been raised for which no specific issue was got settled before the Controller. The respondents/landlords could not come to the Controller for eviction against the appellants for the plot in question prior to the expiry of lease period and admittedly lease period expired on 9.3.1989 whereas the respondents/landlords filed eviction application on 21.5.1989 therefore there could not be said to be delay in filing the ejectment application. Reference is also made to Zubaida Ismail v. Mst. Zohra Sultana (1989 CLC 1121) wherein learned Judge in Chamber observed at page 1125 :-- The delay in making application tinder Section 14, by itself would not defeat the application of eviction, of the landlady fulfils all the requisite conditions, as the Sind Rented Premises Ordinance, 1979, does not prescribe the period within which such application is to be filed." In view of the above facts, evidence and the case law, the contention of the appellants' learned counsel that there has been inordinate delay in filing the eviction application under Section 14 of Rent Ordinance, therefore, the respondents be deemed to have been waived their right of eviction, has no merits and substance. No other plea has been raised before me in appeal. The impugned judgment is legal and based on proper appreciation of evidence on record. Accordingly, appeal has no merits which is hereby dismissed with the direction to the appellants to hand over the vacant possession of the plot in question to the respondents within a period of ninety days subject to payment of rent. (K.K.F.) Appeal dismissed.

PLJ 1996 Karachi 123 (DB) PLJ 1996 Karachi 123 (DB) Present: ABDUL RAHIM KAZI AND ABDUL LATIF QURESHI, JJ. S.M. MUNIR ETC.-Petitioners Versus GOVERNMENT OF SINDH ETC.-Respondents C.P. No. D-27U/93 admitted on 31-8-1995. Constitution of Pakistan 1973-- -—Art. 199-Issuance of Notification by Secretary Industries Sindh by mean, of which number of Directors increased-Challenge to-Provincial Government could not increase number of Directors unless amendment through resolution is made in the Memorandum and Articles of association-Held : Impugned notification is without lawful authority, accordingly quashed. [Pp. 126 & 127] A PLD 1958 SC 104 re/. Mr. Mohsin Tayebally, Advocate, for Petitioners. Mr. KM. Nadeem, AAG for Respondent No. 1. Mr. S.A Samad, Advocate, for Respondent No. 2. Date of hearing: 21-8-1995. judgment ' Abdur Rahim Kazi, J.-The present petition has been filed by the petitioners who claimed to be the members and directors of Sindh Industrial Trading Estates (Guarantee) Limited (hereinafter referred to as "the Company"), seeking the following reliefs :-- "(a) Declare' that the notification dated 31.1.1993 being annexure "C" to the petition is without lawful authority and of no legal effect. (b) Declare that the directions issued by the respondent No. 3 dated 29.6.1993 and dated 19.7.1993 being annexures "E" & "G" to this petition are of no legal effect. (c) Declare that the respondent No. 3 has no lawful authority to perform the executive functions of the Board of Directors of SITE Ltd. and in particular has no authority to allot plots without the approval of the allotment committee constituted by the Board of Directors of the respondent No. 2. (d) Direct the respondent Nos. 1 & 3 to refrain from interfering or creating any hinderances in the management of affairs of the respondent No. 2 and in particular refraining the respondent No. 3 from acting as a Chairman of the Board of Directors of the respondent No. 2 and from making any allotment of any plots; from sanctioning water connections; from employing any person and exercising executive functions of the Board of Directors of the respondent No. 2. (e) Any other declaration or direction as this Honourable Court deems appropriate in the circumstances of the case. (f) Costs of the petition." The contention of the petitioners is that the Company was duly incorporated under the repealed provisions of the Companies Act, 1913 and is now governed by Companies Ordinance, 1984 having its memorandum Debenture Trust Deed, be entitled to appoint a person, whether a member of the Company or not to be a Director and the person so appointed shall hold office subject to the provision of Clause 40 thereof and may be removed at any time by the debenture holders or Trustees of the Debenture Trust Deed, as the case may be. 52. The Directors shall from time to time elect a Chairman who shall preside at all meetings of the Board of Directors at which he shall be present, and may determine for what period he is to hold office, but if no such Chairman be elected, or if any meeting the Chairman be not present within five minutes after the time appointed for holding a meeting, the Directors present shall choose some one of their member to be Chairman of the Meeting." A plain reading of the above provisions would show that it was under a resolution passed by Provincial Government being resolution No. 24-I.B/47-1 dated 2nd June, 1947 that the Company was formed and established for the purposes mentioned therein. Article 30 as reproduced abote would show that at any given time the Company will have a Board of Directors consisting of not less than five and more than 9 Directors. It is further provides that out of these Directors 5 Directors shall be nominated by the Provincial Government. It also provides that this shall not include the Director nominated by the Debenture Holders as provided under Article 31. •Lastly, Article 52 reproduced above provides that the Chairman of the Board of Directors shall be elected by the Directors themselves from amongst them in the election to be held from time to time. A further reference to paragraph 5 of the petition would show that there are 9 Directors in the Board of Directors of which the Commissioners of Karachi, Hyderabad, Sukkur and Director of Industries alongwith Managing Director are the five persons nominated by the Provincial Government which the remaining 4 Directors are the present Petitioners. This fact is not controverted by the respondent No. 2. In such circumstances and in view of the above provisions of Memorandum and Articles of Association, the other 4 Directors had to be from the Public who are the present petitioners mentioned in the Petition. Thus it is obvious that having nominated the said 5 Directors on the Board of Directors, the Provincial Govt. could not have nominated any Additional Director which may have the effect to increase the number of Directors beyond nine. During the course of arguments the learned AAG under instructions from the Deputy Director present in Court has submitted that the two Directors nominated by the Notification are Additional Directors. We are afraid this very statement on the face of it goes to show that the provisions of Memorandum and Articles of association are contravened which the Provincial government could not be unless the same are amended or the number of Directors is increased by a resolution passed in accordance with the provisions of the above Memorandum and Articles of association. The respondent No. 3 also had no authority to nominate the Chairman in Contravention of Article 52 Supra. In view of the above discussion we are of the view that the notification issued by the respondent No. 3 bearing No. EC (AD-ffl) IV-44/92 dated 31.1.1993 is without lawful authority and accordingly we quashed the same. The consequence of this declaration is that all the acts and orders of the respondent No. 3 based on this notification or in consequence of this notification would also be rendered as a nullity in law in view of the principles laid down in the case ofYousufAli vs. Mohd. Aslant Zia PLD 1958 SO 104 as the subsequent acts and orders which are in the nature of super structure built on the un-lawful notification should fall down as a house of cotes. In view of the above order the Misc: Applications are not pressed and are accordingly dismissed as not pressed and infnictuous. (MYFK) Petition allowed.

PLJ 1996 Karachi 127 PLJ 1996 Karachi 127 Present: abdul majid khanzada, J. WALIULLAH MALIK-Appellant versus MST. MEHBOOB BEGUM-Respondent F.R.A. No. 545 of 1993 dismissed on 15.11.1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15-Tenant--Ejectment of--Suit decreed-Challenge to~Whether respondent requires premises in question in good. faith for personal bonafide use-Question of-Landlady has decided to stay in her own property rather than in rented premises-No legal obstacle could come in her way-Choosing of premises for personal bonafide need was prerogative of landlady-Tenent could not have option to choose as to which place and premises would be suitable for landlady-Against false plea of a landlord for vacation of rented premises on ground of personal bonafide need, right of a tenant is protected under S. 15-A of Ordinance-Held, impugned order is rightly passed-Appeal dismissed. [Pp. 129 & 130 ] A & B Mr. Shakeel Z. Lari Advocate for Appellants Mr. Hafiz Abdul Baqi Advocate for Respondents Date of hearing: 15.11.1995 judgment This appeal is directed against the order dated 19.10.1993 passed by the learned 1st Senior Civil Judge and Rent Controller Karachi (East) in Rent Case No. 522 of 1991 directing the appellant to vacate and hand over the vacant possession of the premises in question to the Respondent within 45 days from the date of order. • » 2. Briefly stated the facts which lead to this appeal are that the Respondent named above filed ejectment case u/s. 15 of Sind Rented Premises Ordinance, 1979 stating therein that she is landlady of a bungalow No. 15 Rohail Khand Society, Haider Ali Road, Karachi consisting of four portions and the appellant is a tenant of Portion No. 1 at Ground Floor of the said bungalow on a monthly rent of Rs. 1540/- per month. She stated that she has got 10 sons, out of which 3 are married and have got children. According to her there is a slump in the business at Quetta and her husband and sons have decided to shift and settled at Karachi permanently, as she alongwith her family members was residing in a rented house at Quetta, which they have to vacate as a result of compromise in Rent Case No. 104 of 1990. Since she has no other house through out Pakistan except the demised premises in Karachi as such she and her family members have no other alternative but to settle at Karachi and to reside, in her own bungalow, hence she filed four cases including the present one, for ejectment of the tenants from all the four portions of the bungalow for their personal bonafide need. She also advanced the plea of committing default in payment of monthly rent. The Appellant/Opponent filed his written statement in denial of the Respondent's case. He alleged that the alleged need of the landlady is malafide as none of her sons want to shift to Karachi . The compromise in Rent Case No. 104 of 1990 at Quetta was collusive. He asserted that brokers and many other people approached the appellant who informed that the portion in question as well as other portions of the same bungalow are being sold by the landlady and they intend to purchase the same, provided the vacant possession of it is delivered to them. He denied the default as alleged by the landlady. He also denied the personal bonafide need of the landlady. In support of her case, the landlady filed affidavit-in-evidence of her own and of Sarkhalid Javaid and Abdul Wahab Siddiqui, Sarkhalid did not appear for cross-examination, while the Appellant/opponent filed his own affidavit-in-evidence, in rebuttal. The learned Rent Controller framed the following points for determination :-- (1) Whether the applicant requires the premises in question in good faith for her personal bonafide use ? (2) Whether the Opponent No. 1 has sublet the premises to opponent No. 2 ? (3) What should the order be? The learned Rent Controller after hearing the parties advocates, determined Point No. 1 in favour of the landlady and Point No. 2 against tr her; and in the result passed the ejectment order against the appellant. Hence this appeal. The landlady has neither filed any appeal nor cross objections to the finding on the point of subletting. The learned counsel for the appellant argued that the premises in question, in fact, is not needed by the landlady but since she wants to dispose of the same with vacant possession of the same, the plea of personal bonafide need is advanced. The plea of shifting from Quetta to Karachi is false and baseless. The main objection of the landlady is to get the premises vacated and to deliver vacant possession of the same to the purchaser. Her need is Z malafide and the learned Rent Controller has erred in deciding the point of personal need of the applicant in her favour, without any cogent reasons. He also pointed out that out of four cases, one case for portion No. 4 of the same bungalow has been dismissed by the Rent Controller, so this case should have also been dismissed. In the end he submitted that the appeal may be allowed as prayed by setting aside the order of the lower Court and the Rent Case be dismissed with costs thought out. The learned Counsel for the Respondent supported the order of the Rent Controller. He contended that the landlady and her witness have proved the assertions made by the Applicant in the Rent Case and their evidence has not been shattered in their cross examinations. He argued that it is prerogative of the landlady to choose the place of her and her family's residence and the business too, and the tenant has no right to suggest her or — ^. to create hurdles in her way. He further argued that landlady has no other house through out Pakistan except the demised premises at Karachi , hence she and her family have decided to live permanently at Karachi , for which the house in question is needed by her and her family members personal bonafide needs. In support of his contention, the learned counsel referred (1) Ijaz Hussain & others vs. Mst. Hussain Ara, 1988 SCMR 1939, (2) T.ariq Aziz Siddiqui & another vs. Farooq Hassan & 4 others, 1993 CLC 1793 and (3) Mirza Yawar Baig vs. Usman Chippa, 1989 CLC 247. I have applied my mind to the facts, circumstances of the case and the arguments of the learned advocate for both the parties, and I have reached to the conclusion that if the landlady has decided to stay in her own property rather than in rented premises, no legal obstacle could come in her ^tr - way; and the choosing of premises for her personal bonafide need was the prerogative of the landlady as she was judge of suitability of premises for her requirements and the tenant could not have option to choose as to which place and premises would be suitable for the landlady. Reference may be made to the following cases :-- 1. Naseer Fatima vs. Suraiya Abid Alt, PLD 1994 Karachi 468. 2. AttiyaBadar us. Munshi Khan, 1994 CLC 1875. 3. Abdul Majid vs. Kamaluddin, 1994 MLD 958. 4 ,he shall be punishable with fine which shall not exceed one year's rent of the building or the premises as the case may be, payable immediately before the possession was so obtained. (ii) the tenant who has been evicted may apply to the l Controller for order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an Order accordingly." In support of the above legal position, I am also fortified with a case, Sultan Shah vs. Muhammad Hussain Shah 1995 MLD 847. Under the above circumstances, I am of considered view that the impugned order is rightly passed and it does not call for interference, as such it is maintained and in result the appeal is dismissed with no order as to costs. The tenant shall put the landlady in vacant possession of the premises in dispute, within 30 days, subject to deposit of monthly rent, failing wherein the Rent Controller shall issue direct writ of possession, without prior notice to the opponent. (K.KF.) . Appeal dismissed.

PLJ 1996 Karachi 130 PLJ 1996 Karachi 130 Present: hamid All MlRZA J. SALIM SOZER and other-Appellants versus ABDUL JABBAR and others-Respondent FRANo. 549 of 1991 dismissed on 14-1-96 Sind Rent Premises Ordinance, 1979 (Act XVII of 1979)- —Tenant-ejectment of-Section 8, 9 & 15 of Rent Ordinance has been declared un-Islamic by Shariat Court to be in direct conflict with Holy Quran & Sunnah-Contention of~It is an admitted fact that ejectment application Was filed much prior to decision of Federal Shariat court of Pakistan and said decision would not have a retrospective effect upon the provisions of section 15 of ordinance-Held Article 203 (2D) Constitution of 1973, state that no such decision shall be deemed to take effect before expiiy of period within which an appeal may be preferred to the Hon'able Supreme Court or where an appeal has been so preferred, before disposal of such appeal-- • [P134]A Sind Rent Premises Ordinance, 1979 (Act XVII of 1979)-- —-Tenant-Ejectment of--Ground of subletting premises to real brother-­ Appellant No. 2 was brother of Appellant No. 1 and no consideration has been passed on to appellant No. 1, therefore, it could not be said that subletting has taken place-Contention of~Appellant No. 2 says that he is the brother of appellant No. 1 but he could not be termed as tenant within the meaning of section 2 (j) of Ordinance 1979-Held, Appellant No. 2 could not be said to be heir of appellant No. 1 to be in occupation of premises after death of tenant- [P 135 ] B Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 8, 9 & 15~Tenant-Ejectment of--Whether appellant/tenant was defaulter in payment'of rent for months of July and August-Question of- -Testimony of respondents attorney could not be shaken and same was consistent with pleadings on default in payment of rent for month of Jy)y and August which stood proved as rent was neither paid nor tendered in terms of expired tenancy agreement between parties-Held, Tenant is defaulter-Appeal dismissed- [P 139 ] C In person Appellant. Mr. KB. Bhutto, Advocate, for respondent. Date of hearing: 18.10.1995. judgment This is an appeal under Section 21 of the Sindh Rent Premises Ordinance (hereinafter called Rent Ordinance) against the order dated 31.8.1991 in rent case No. 2491/1990, Abdul Jabbar Qureshi and others v. Salim and another whereby the 1st Senior Civil Judge and Rent Controller, Karachi-South allowed the ejectment application of the respondent/landlord and ordered eviction of the appellants directing them to vacate the premises within sixty days from the date of the order, hence this present appeal. The brief facts of the case are that the respondents/landlords filed ejectment application against the appellants under Section 15 of the Sindh Rented Premises Ordinance, 1979 seeking their ejectment on the ground of default in payment of rent for the month of July, 1990, and on the ground of subletting of the said premises to the appellant No. 2. The appellants filed their written statement through their attorney wherein they denied the relationship of landlord and tenant between the parties and stated that the application for ejectment made was not maintainable and that the appellant No. 1 was still tenant of flat No. 14 in Qurash Manzil who bought is at the Qureshi and the unregistered agreement of tenancy between the parties lapsed as it period expired and same has no legal validity and that the appellant/tenant has made a deposit of Rs. 21.000/- with the respondent's father and the appellant/tenant has been paying rent regularly at the rate of Rs. 191/ per month and that rent for the month of July was payable by 10th September, 1990, which was tendered to the respondent who avoided to issue rent receipt and he made several attempts thereafter to pay rent but it was avoided by the respondent, therefore, the appellants remitted the rent through money order on 20.8.1990 but it was refused and then the rent was deposited in MRC No. 1438/90 in Court on 7.10.1990 and also denied that he has sublet the premises to the appellant No. 2, his real younger brother who was living with him after latter's return from Saudi Arabia since 1982. On the pleadings of the parties the learned Rent Controller settled the following issues:- 1. Whether the applicants are the landlord of the opponent No. 1? 2. Whether the ejectment application is not entertainable in law? 3. Whether the opponent No. 1 committed default in payment of monthly rent i.e. July, 1990, and is, therefore, liable to ejectment as prayed for? 4. Wether the opponent No. 1 has handed over the possession to the opponent No. 2 and is, therefore, liable to ejectment as prayed for? 5. What should the order be? , The respondent/landlord filed affidavit-in-evidence of Abdul Rasheed Sheikh, attorney of the respondent who has produced photocopy of general power of attorney Ex. A, photocopy from the property extract register in respect of the property in question as Ex. B, photocopy of tenancy agreement 1976 made between Ghulam Mustafa Qureshi and Salim, photocopy of rent receipts dated 6.6.90 for the month of June, 1990, notice dated 11.10.90 from Salim and Sozer to Ghulam Mustafa Qureshi Ex. E, photocopy of the reply of the respondent's attorney dated 30th October, 1990. Appellant's attorney M.A. Sozer filed supplementary affidavit-inevidence on behalf of the appellant and filed his affidavit as well. After recording the above evidence and hearing the counsel for the respondent and the attorney for the appellant the learned Rent Controller allowed the eviction application on the ground of subletting under issue No. 4 while the issue No. 3 in respect of default was answered in the negative and issues No. 1 & 2 were answered in the affirmative. I have heard the attorney of the appellants and the learned counsel for the respondents perused the record and proceedings and the case law cited by the respondents! learned counsel. Mr. M.A. Sozer, Attorney of the appellant argued that the application moved under section 15 of the Rent Ordinance was un-Islamic as declared by the Shariat Court , therefore, findings of the learned Rent Controller were not sustainable and liable to be set aside in this appeal. He has further argued that the appellant No. 2 was not sub-tenant of the appellant No. 1 but was his real brother who was residing with him and further that the respondents/landlords have not proved passing of consideration (Pagree) from appellant No. 2 to appellant No. 1, therefore, subletting could not.be said to have proved, therefore, the finding of the learned Rent Controller was illegal and liable to be set aside. He has argued that no intimation as required under section 18 of the Rent Ordinance was sent by the legal representatives of the deceased landlord Ghulam Mustafa Qureshi, therefore, the application for ejectment was not maintainable and the finding of the Rent Controller on the said issue was erroneous. He has further argued that in view of Articles 203 (DD) and 203 (J) of the Constitution of the Islamic Republic of Pakistan, 1973 the decision Of the Federal Shariat Court was binding upon the High Court where section 15 of the Rent Ordinance was held to be repugnant to the tenants of Islam, therefore, the finding holding the ejectment application to be maintainable by the Rent Controller was erroneous. He has submitted that his written argument may also be considered. Mr. K.B. Bhutto, learned counsel for the respondent has argued that there was a written tenancy agreement between the parties whereunder. the appellant was to pay the rent in advance before 15th of each calendar though the period stated in the tenancy agreement has expired but the term in respect of the advance payment of monthly rent being not repugnant to the present Rent Ordinance would be operative and effective between the parties hence the rent for the month of July 1990 was payable by the appellant No. 1 by 15th of July 1990, rent for the month of August, 1990, was payable on 15th of August, 1990, but the appellant has himself admitted that he has deposited rent in Misc. Rent Case on 30th October, 1990, therefore, the appellant/tenant was defaulter within the meaning of section 15(2)(ii) of the Rent Ordinance. He has further argued that the finding of the learned Rent Controller on the point of service of notice under section 18 of the Rent Ordinance was erroneous in law and liable to be set aside in this appeal as the appellant/tenant after the death of the original landlord deceased Ghuiam Mustafa Qureshi in 1985 paid rent till June 1990 to the respondent and further that the appellant No. 2 was in possession of the said flat and that the appellant No. I/tenant was residing at Shah Rukh Apartment with his family, therefore the finding on the point of sub-letting of the learned Rent Controller was legal and proper. He has also argued that the appellant No. 2 though brother of Appellant No. 1 would not be tenant within the meaning of words "tenant" as defined in the Rent Ordinance and further that the decision of Federal Shariat Court of Pakistan in Ashfaq Ahmad and others vs. Government of Pakistan (PLD 1992 FC 286) was to take effect from 1-10-1991 but the instant ejectment application was filed on 23-8-1990, therefore, the decision of the Federal Shariat Court of Pakistan would not effect the decision of the present ejectment application and further an appeal has been preferred by the government against the said decision of Shariat Court before Supreme Court which appeal was pending for disposal, therefore, the operation of the decision of Federal Shariat Court stood suspended under the law. He has placed reliance upon Khuda Bukhsh vs. Muhammad Yaqoob Etc. (1981 CLC 179), Suhail Ahmad vs. Dr. Nisar Ahmad (1989 CLC 1048), Muhammad Yousuf vs. District Judge, Rawalpindi (1987 SCMR 307), Muhammad Yaseen vs. Shabbir Ahmad (1985 CLC 2111), Ashfaq Ahmad and others vs. Government of Pakistan and others (PLD 1992 F.S.C. 286) and Ghulam Akbar vs. AbdulRashid (1991 CLC 959) in support of his contentions. The first contention of the attorney of the appellant is that Section 15 of the Sindh Rented Premises Ordinance, 1979, is un-Islamic as declared by the Federal Shariat Court in Ishfaq Ahmad and others vs. Government of Pakistan (PLD 1992 FSC 286) therefore this ejectment application is not maintainable. By virtue of the above said decision of the Federal Shariat Court of Pakistan Sections 8, 9 & 15 of Sindh Rented Premises Ordinance, 1979 have been declared to be repugnant to the injunctions of Islam, and to be in direct conflict with the verses of Holy Quran and Sunnah of the Holy Prophet and the said decision was made on the 1st October 1991 and was ordered to be effective on the expiiy of six months from the date of its announcement that would mean that the same would become effective on the expiiy of six months from the date of its announcement that would mean that the same would become effective on 1st April, 1992, but the present ejectment application was filed on 23r,d day of August, 1990, therefore, the said decision of the Federal Shariat Court would have no effect upon the decision of the instant case. I may further state that the proviso to Article 203 (2d) state that no such decision shall be deemed to take effect before the expiiy of period within which an appeal may be preferred to the Hon'ble Supreme Court or where an appeal has been so preferred, before the disposal of such appeal. It has been contended by the learned counsel for the respondents that Government of Pakistan has preferred an appeal to the Supreme Court and the same was pending for disposal before the Supreme Court, therefore, the said decision of Federal Shariat Court could not be said to have become effective so far. This fact has not been denied by the attorney of the appellant, however, in the instant case there has been nothing on record to show that the Government of Pakistan had preferred any appeal against the said decision of the Federal Shariat Court of Pakistan but it is an admitted position on the record that the present ejectment application was filed much prior to the decision of the Federal Shariat Court of Pakistan and the said decision would not have a retrospective effect upon the provisions of Section 15 of Sindh Rented Premises Ordinance 1979. In the circumstances the contention of the attorney for the appellant has no force. The next -.£ contention of the attorney of the appellant is that the appellant No. 2 is the real brother of the appellant No. I/ tenant and the latter has been staying in the disputed that as well with him whenever there has been disputed between the appellant/tenant and his wife, therefore, there could not be said to be a sub-letting in favour of the appellant No. 2 and further that no consideration (Pagree) has been proved to have been passed on from appellant No. 2 to appellant No. 1, therefore, no sub-letting could be said to have taken place. Section 15 (2) (iii) (a) reads as under :- "The Controller shall, make an order directing the tenant to put r the landlord in possession of the premises within such period as 'may be specified in order, if he is satisfied that the tenant has, without written consent of the landlord handed over the possession of the premises to some other person." The above provisions of the Rented Ordinance state that in order to prove subletting it must be shown that tenant has without consent of the landlord handed over the possession of the premises in dispute to-some other person. In the instant case it has been stated in affidavit-in-evidence by the attorney of the respondents that the appellant No. I/tenant has shifted to Shah Rukh Apartment while the appellant No. 2 was residing in the disputed flat. This ' fact has not been denied by the appellant No. 1. It has been admitted by the appellant's attorney in his affidavit-in-evidence as well as in his crossexamination that the appellant No. 1 was residing in Shah RUkh Apartment and he has been staying in the disputed flat whenever there has been some dispute between him and his wife and some times appellant No. 1 has been staying with him (attorney) because of the dispute between the appellant No. 1 and his wife. It has also been admitted by the appellant's attorney that the appellant No. 2 has been residing with his family including wife and son in the disputed flat, which would clearly show that the appellant No. I/tenant, has handed over possession of the disputed flat to his brother appellant No. 2 who has been residing there with his family while appellant No. 1 has been residing in Shah Rukh Apartment. The causal stay in the disputed flat in case of dispute between the appellant No. 1 and his wife would not mean that he has not handed over the possession of the disputed flat to appellant No. 2. The appellant's attorney admitted that tenement was in possession of appellant No. 2 and the explanation given by the attorney was that the appellant No. 2 was the brother of the appellant No. 1 and that no consideration has been passed on to appellant No. 1, therefore, it could not be said that sub-letting has taken place. Appellant No. 2 is the brother of appellant No. 1 but he could not termed as tenant within the meaning of Section 2 (j) of the Sindh ented Premises Ordinance 1979 as the appellant No. 2 could not be said to be x heir of appellant No. 1 to be in occupation of premises after death of tenant. The appellant No. 2 is residing in the disputed flat without the consent of respondents and the evidence on record proved that the appellant No. 1 had handed over possession to the appellant No. 2 without the permission of the respondents which fact has also been admitted by the attorney of the appellants in cross-examination wherein he stated that it was not necessary to have the permission of the respondents as appellant No. 2 was the brother of the appellant No. 1. The evidence adduced on the point of subletting by the respondents/landlords has gone, in fact, unchallenged as nor proper defence has been adduced to controvert the statement of the attorney of the respondents and further that passing of Pugree consideration was not necessary to prove subletting, therefore, no exception could be taken to the finding of the learned Rent Controller on the said issue. . Learned counsel for the respondent has argued that the finding of the Rent Controller on the issue of default is erroneous in law as it was not necessary in the circumstances of the instant case to give notice under Section 18 of the Sindh Rent Premises Ordinance 1979 to the appellants/tenants tenants before filing of the ejectment application against him on the ground of default, as after the death of deceased/landlord in the year 1985, the appellants/tenants continued paying the rent till June 1990 therefore there would be nor bar to the filing of application under Section 15 of the Sindh Rented Premises Ordinance 1979 on the ground of default. In support of his contention he has placed reliance upon Khuda Bukhsh vs. Muhammad Yaqoob (1981 SCMR 179) wherein the Hon'ble Supreme Court of Pakistan has held "Be that as it may on page 54 of the paper book we find that the petitioner admits paying rent to the respondent. The reason for a notice under Section 13-A is to inform the tenant that the landlord has sold the property to another person so that rent could thereafter be paid by the tenant to the new landlord. In this case knowledge of the transfer admitted by the petitioner and hence even if a notice had not been served under Section 13-A, it would not stand in the way of the Court in granting the relief that it has granted." It is correct that the above decision of Supreme Court of Pakistan relates to Section 13-A of the West Pakistan Urban Rent Restriction Ordinance but the said provisions of Section 13-A are analogous to provisions of Section 18 of the Sindh Rented Premises Ordinance, therefore, the same principles could be applied to the provisions of Sindh Rented Premises Ordinance 1979. Reference is also made to the case of Muhammad Raghib vs. Abdul Razzak (PLD 1994 Karachi 20), where learned Judge in Chamber observed that :- "There are, by now, do dearth of reported judgments of the superior courts to the effect that notice under Section 18 of the Ordinance is not necessary even in cases where eviction is sought on the ground of default in the payment of rent under sub-clause (ii) of section 15 (2) of the Ordinance when it is established that the tenant had knowledge of the .transfer, because in that case serving of the notice will serve no purpose and will be superfluous. On this point learned counsel of the appellant had relied on the judgment in the case of Major Muhammad Ypusuf vs. Mehrqj-ud-Din and others 1986 SCMR 731." In the above cited judgment provisions of Section 13-A of the repealed West Pakistan Rent Restriction Ordinance were dealt with'but the provisions of Section 13-A similar to the provisions of Section 18 of the Sindh Rented Premises Ordinance 1979 therefore the observations in the cited judgment would be applicable on all fours to the instant case. In the instant case attorney of the respondents in his affidavit in-evidence has stated that the appellant No. 1 after the death of original landlord Ghulam Mustafa Qureshi came to condone his death where he was informed that the deceased original landlord has left the respondents as legal heirs to inherit the property left by him which fact has not been challenged in the cross examination of the respondents' attorney by the attorney of the appellants, therefore, the statement made by the respondents' attorney shall be deemed to have been admitted by the appellants/tenants. Reference is made to Muhammad Yaseen vs. Shabbir Ahmed (1985 CLC 2111) wherein learned brother Judge in chamber observed:- "That if there was no cross examination on the fact deposed in the examination-in-chief presumption would be that evidence had been accepted by the parties against whom it was given." Accordingly, the finding of the learned Rent Controller that in absence of service of notice, ejectment could not be sought on the ground of default in the stated circumstances has not merit, and is accordingly reversed in view of the evidence on record and the case law cited above. Now there remains to be seen whether the appellant/tenant was defaulter in the payment of rent as alleged by the respondents/landlords for the months of July and August 1990. Before I proceed to examine the fact, as to whether the appellant was defaulter in the payment of rent or not, it would be necessary to find out as to whether the appellant/tenant would be governed by the written tenancy agreement which has lapsed by time or would be governed by the provisions as regards the payment of rent as laid down in Section 15 (2) (ii) of Sindh Rented Premises Ordinance. Para one of the tenancy agreement dated 1st April 1976'states that tenant shall pay regularly rent at the rate of Rs. 115/- as rent of the aforesaid premises in advance on or before 5th of each calendar month. Reference is made to Mrs. Zarina Khawaja vs. Agha Mahboob Shah (PLD 1988 SC 190) wherein Supreme Court has held :- "He terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, there rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after determination of fair rent, provision for re-entry of a tenant after he vacates the premises for re-construction all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the law repealed by it, and similar other conditions and convenants." Reference is also made to Syed Asghar All Imam vs. Muhammad All (PLD 1988 SO 228) it was observed that :- "The last argument of the learned counsel for the respondent has also no force. The date of payment of rent after the expiry of the 1st period of tenancy has been fixed in para 4 of the agreement as 5-1-1975. It was to be of advance rent, which as held by us in the case of Ms?. Zarina Khawaja, is permissible. Taking the liberal view in tenant's favour, we would hold that the use of the word "monthly" and "Rs. 1,100" in the last sentence of para 4, would make it advance rent only for one month and not for six months. Thus, it was due on 5-J-1975 and would be payable upto 20-1-1975 i.e. within 15 days-it is in case of "agreement" even if expired but continued by the law as held in the said case ofMst. Zarina Khawaja. The 60 days rule will'not apply. Hence, the 1st default occurred on 21-1-1975. The second on 21-2-1975 and the third on 21-3-1975. Thereafter, the application for eviction was moved in April 1975. Thus it was default of three months and not one month. Nor as held regarding the nature of security, was it a technical default. If the eviction application had not been filed, it appears from the pleas taken by the respondent, he would have continued the default. His attitude was one of disregard for solemn agreement and commitment freely made by him with his landlord. The default on all scores was wilful. He is not entitled to any discretionary benefit." From the above case law, it could safely be said that in the instant case the clause in respect of payment advance monthly rent being not repugnant to rent law would be operative. It has been admitted by the appellant's attorney in paras-2 and 4 of his affidavit-in-evidence that the rent for the months of July upto October was deposited in the court on 29th of September 1990 in Misc. Rent Case No. 1438/90 as the landlords avoided to receive the same and also refused to accept the money order but no such suggestion in crossexamination was made to the respondents' attorney that rent was tendered to them but it was refused so also money order was sent to them but it was refused. So much so that even the appellant's attorney did not care to file any postal receipt or coupon of money-order to support his contention that rent was sent through money order for the months of July and August 1990 to the respondents but it was refused. No postman is examined in support of the statement of the appellant/tenant that rent was tendered by them. Reference is made to Suhail Ahmad vs. Dr. Nisar Ahmad (1989 CLC 1048), wherein learned Judge in Chambers observed:— "Where the tenant stated that he has sent rent by money order but landlord denied to have received money order and the postman was not examined to show the money order was delivered or was refused the default in payment of the rent stood proved." The respondents/landlords attorney in his affidavit-in-evidence has stated non-payment nf rent by appellant/tenant and nothing has been suggested in the cross-examination in the negative by the appellant/tenant that the rent was paid to them. Accordingy, the testimony of the respondents' attorney could not be shaken and the same was consistent with the pleadings on the default in payment of rent for the months of July and August 1990 which stood proved as the rent was neither paid nor tendered in terms of expired tenancy agreement between the parties. In the circumstances the findings of the learned Rent Controller on the point of issue of default is reversed and the appellant/tenant is held to be defaulter in the payment of monthly rent for the months of July and August 1990. Lastly it was contended by the attorney of the appellants that the appellant No. 1 have stated that he has paid Pagri amounting to Rs. 45.000/- in addition to Rs. 21.000/- as security deposit but so far the amount of Pagri is concerned the appellant's attorney has not produced any evidence in support of his contention even the appellants' attorney has not made any suggestion to the attorney of the respondents in the cross that amount of Rs. 45.000/- was paid as Pagri to the respondents whereas the respondents attorney has denied to have received the same in the affidavit-in-evidence. Learned counsel for the respondents has placed reliance upon the case of Shaikh Muhammad Yousuf vs. District Judge Rawalpindi (1987 SCMR 307), wherein the Hon'ble Supreme Court held:- "However, alleged payment of Pagri being mutual arrangement between the parties the same would not debar the respondent/landlord from instituting the eviction proceedings on the ground of bonafide personal need." In view of the evidence and the case law cited above, the appeal has no merit which is hereby dismissed and the appellants/tenants are directed to hand over the vacant possession of the premises in question within sixty days from the date of announcement of this order subject to condition that the respondent would refund the security deposit of Rs. 21.000/- to the appellants as per para-8 of the agreement or deposit with the Controller subject to adjustment of due rent if any. (S.R.) Appeal dismissed.

PLJ 1996 Karachi 140 PLJ 1996 Karachi 140 Present: HAMID ALI MlRZA,-J. MR. WASEEM SHAH--Appellant Versus JUZAR FAKHRUDDIN and others-Respondents F.R.A. No. 479 of 1995 decided on 28-11-95. Cantonment Rent Restriction Act, 1963 (XI of 1963)- —S. 17 (8 & 9) Striking of defence of tenant-Default in compliance of order relating to deposit tentative rent-Whether defence of .tenant could be struck off for non compliance of the order passed under section 17 (8) when rate of rent was disputed and that tenancy agreement was stated to be forged-Question of-No exception can be taken to impugned order- Mere fact that the appellant/tenant has disputed rate of rent and has stated that tenancy agreement was forged would not exempt him from making compliance of order passed under sub section 8 of section 17 of Rent Act—Held: Nothing has been pointed out whereby impugned order could be against provisions of law- Appeal dismissed. [P. 143] A Mr. Agha Faqeer Mohammad Advocate for appellant Mr. Imran Ahmed Advocate for respondent Date of hearing: 28-11-95 order This is First Rent Appeal under section 24 (1) of the Cantonment Rent Restriction Act, 1963 (hereinafter called Rent Act) directed against an order dated 30.8.1995 passed by the learned Additional Controller of Rents, Clifton Cantonment, Karachi, in rent case No. 66/94, Juzer Fakhruddin and others v. Waseem Shah whereby an application under section 17 (9) of the Rent Act filed by the respondent/landlord was allowed thereby defence of the appellant/tenant was struck off with the direction to hand over the vacant possession of demised premises to the respondent/landlord within 30 days hence the present appeal. Brief facts of the case are that the respondent/landlord filed an application under section 17 of the Rent Act against the appellant/tenant in respect of shop called (words not visible) situated on the ground floor building known as 'Al-Ibrahim' constructed on plot No. 42-C, Stadium Lane No. 3, Off. Khayaban-e-Mujahid, Phase-V, Defence Officers Housing Authority on the ground that the appellant/tenant has committed default in the payment of monthly rent of Rs. 8,000/- per month from the month of June, 1984 and has also failed to pay electricity and gas charges amounting to Rs. 37,292/- and Rs. 21,687/- upto July, 1994. The appellant/tenant filed written statement wherein he stated that the rate of rent was Rs. 4,000/- and not Rs. 8,000/- per month and the tenancy agreement filed with the ejectment application was a forged document and that he has paid an amount of Rs. 1,58,000/- as security deposit and further that he Was not defaulter in the payment of rent as he has paid rent in advance upto September, 1994 and has also paid gas and electricity charges upto October, 1994. The Additional Controller of Rents on 29.4.1995 passed and order under subsection 8 of section 17 whereby the appellant/tenant was directed to deposit rent. The operative part of the order runs: "In view of the above discussion, I tentatively hold that the rate of rent is Rs. 8.000/- per month and as such the opponent is liable to pay the monthly rent at the rate of Rs. 8,000/- I accordingly, direct the opponent to deposit the rent at the rate of Rs. 8.000/- per month for the period from June, 1994 to March, 1995 on or before 31.5.1995 and further direct the pponent to deposit the rent for the month of April, 1995 before 5th of May, 1995 and subsequent months rent before the 5th of each succeeding month. However, the applicant is restricted to withdraw the rent from June, 1994 to September, 1994 till disposal of the case. The applicant is allowed to withdraw the rent at the rate of Rs. 4,000/- per month from October, 1994 to onwards, so deposited by the opponent. As regards the recovery of arrears of electric and gas charges outstanding against the opponent, it is stated these charges do not form part of rent under Cantonment Rent Restriction Act, 1963, therefore, the applicant may sue the opponent at appropriate forum for recovery of these arrears." The respondent/landlord filed an application under section 17 (9) of the Rent Act on 28.6.1995, a copy of which was received by the appellant's counsel on 5.7.1995 praying therein that appellant/tenant has failed to deposit rent due before the specified date, i.e. 31.5.1955 and also failed to deposit monthly rent for the month of May due on 5.5.1995 therefore his defence be struck off. The Court Accountant Clifton Cantonment as per his report dated 11.7,1995 stated: "As per rent order dated 29.4.1995, the opponent was required to deposit the rent at the rate of Rs. 8,000/- per month from June, 1994 to March, 1995 on or before 31st May, 1995. The opponent was further directed the deposit the rent at the rate of Rs. 8.000/- per month for the month of April, 1995 before 5th of • May, 1995. The opponent has not deposited the arrears of rent as well as current monthly .rent. But, he has deposited the rent for the month of May, 1995 of Rs. 4,000/- on 4.6.1995 and also deposited the rent for the month of June, 1995 of Rs. 4.000/- on 4.7.1995." The appellant/tenant has not filed any counter-affidavit to contradict the affidavit of respondent/landlord filed in support of application under section 17(9) of the Rent Act as well as to the report of the Court Accountant in respect of non-payment of rent in terms of the order dated 29.4.1995. Learned counsel for "respondent appeared on 30.8.1995 but the appellant/tenant and his learned counsel remained absent when the Rent Controller passed the impugned order. I have heard learned counsel for parties and perused the record and proceedings of the case and the case law cited. Learned counsel Mr. Agha Faqeer Muhammad for appellant/tenant has argued that the appellant was to pay monthly rent at the rate of Rs. 4,000/- per month and the agreement of tenancy filed with the ejectment application was forged therefore the order dated 29.4.1995 under section 17 (8) of the Rent Act was not legal, hence the same was not complied with. He has further argued that he was not in arrears of rent therefore he was not bound to deposit the rent in terms of the order dated 29.4.1995. He has not stated that he has made compliance of the order dated 29.4.1995. Learned counsel Mr. Imran Ahmad for respondent has argued that the Controller in case of disagreement on the amount due has to determine the same approximately and the same order would be a provisional one therefore the appellant/tenant was bound to deposit rent in terms of the order passed under section 17(8) of the Rent Act and the grounds raised now challenging the rate of rent and the amount of arrears would have no meiit. He has placed reliance upon Niaz Khalil v. Sh. Muhammad Shafique (1995 SCMR 791) and Abdul Malik Shamsi v. Muhammad Shamim (1986 CLC 540) in support of his contentions. It is admitted position that the appellant tenant has not deposited arrears of rent and also not deposited rent for the month of April, 1995 before 5th May, 1995 and rent for the month of May, 1995 was deposited at the rate of Rs. 4,000/- instead of Rs. 8,000/- on 4.6.1995 and rent for the month of June, 1995 was deposited at the rate of Rs. 4,000/- instead of Rs. 8.000/- on 4.7.1995. Learned counsel for the appellant has not contradicted the report of Court Accountant. In the instant case, the only point for consideration would be whether defence of the appellant/tenant could be struck off for non-compliance of the oi-der passed under section 17 (8) of the Rent Act when the rate of rent was disputed and that the tenancy agreement was stated to be forged. Section 17(8) of the Rent Act runs: "On the first hearing of proceeding under this section or as soon thereafter as may be put before the issues are framed, the Controller shall direct the tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due, the Controller shall determine such amount approximately." Perusal of the above provision would show that the Controller has to pass a provisional order determining the approximately amount due while passing order under section 17(8) of Rent Act. The said order is not final in nature. Subsection 9 of section 17 of Rent Act has provided that in case tenant failed to deposit amount of rent before the specified date in terms of the order passed under subsection 8 of section 17 of Rent Act if he was tenant his defence would be struck off and the said provision did not state that in case : where there was disagreement as to rate of rent or as to arrears of rent or there was any other defence of the tenant, the penalty provided under - subsection 9 of section 17 would not be imposed. If the arguments advanced by the learned counsel for appellant are to prevail then the provision of subsection 9 of section 17 would become nugatory. It has been specifically stated that under subsection 9 of section 17 of Rent Act that in case of failure to deposit amount before specified date, the defence of the tenant shall be struck off under subsection 9 of section 17 of the Rent Act. Mere fact that the appellant/tenant has disputed the rate of rent and has stated that the tenancy agreement was forged one, would not exempt him from making the compliance of the order passed under subsection 8 of section 17 of the Rent s- Act. In this respect, reference is made to Malik Mehmood v. Muhammad YousafKhan (1988 CLC 675) wherein learned Judge in chamber observed : Thus, his reliance upon the aforementioned receipts apart from appearing to be an afterthought may, at best, be considered a defence plea which, however, was not enabled by tenant himself to be entertained or inquired into on account of his failure to faithfully comply with the Rent Controller's order, dated 1.4.1986 and such a failure of compliance had to be visited with the penal consequences as is laid down in Abdul Qayyum aracha v. Ghulam Hussain etc. 1985 SCMR 580 which also holds that the legality of the order or the quantum of rent cannot be brought under challenge in a proceeding confined to n inquiiy relating to defaulted in compliance of the order relating to the deposit of arrears and future rent. Tenant's reliance on the two receipts allegedly issued by the landlord is actually irrelevant in the context of compliance of order relating to deposit in Court which, even upon accepting those receipts to be genuine, remains defaulted at least to that extent. Once a failure to deposit rent strictly in accordance with the terms of the order passed by the Controller is established, he is not left with any discretion in the matter of striking off defence. So, has been held- in Ghulam Muharii ad Khan Lundkhor v. Safdar Ali PLD 1967 SC 530 and re-affirmed in Mst. AkhtarJehan Begum and four others v. Muhammad Azam Khan PLD 1983 SC 1. Further, in Begum Capt. Mirza Ghulam Sarwar and another v. District Judge, Jhelum and others 1987 SCMR 25 such a noncompliance was held to have to legitimately result in striking off the defence of the tenant. Hence, even though the genuineness of the receipts relied upon by the tenant is seriously contested, yet, nothing can turn upon his having so paid the amount to the landlord because even if this plea was to be accepted as correct it will not import a compliance of the relevant order, according to its terms. The plea thus fails." Reference is also made to Mst. Akhtar, Jehan Begum, and four others v. Muhammad Azam Khan (PLD 1983 SC 1) where the Supreme Court of Pakistan has at page 4 observed : "The plain reading of the above provision makes it abundantly clear that for the purpose of passing the order of deposit under it, the Controller has not to determine the question of quantum or rate of rent, finally, if the same is in dispute, but to determine such amount "approximately". This is the clear import of the words underlined above. Further this excludes final adjudication of this question. In the premises the . consequences of non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non-compliance of such approximate determination is the summary disposal of the case, without taking any further proceedings, ipso facto on the basis of such non-compliance by striking off the defence and passing the order of eviction. If the argument of the respondent is accepted, then in every case the Controller would be competent to order ejectment of the tenant only on his final determination of the question as to quantum of arrears of rent or rate of rent. In the face of the clear language employed, such cannot be intent and effect of these subsection. Reference in this behalf may profitably be made to a passage from the case of Ghulam Muhammad Khan Lundkhor v. Safdar Alt (PLD 1967 S.C. 530). In this case the contention advanced was that the Controller was not bound to order eviction of the tenant even if any fact non-compliance of the tentative rent order was established. But could extend the benefit of Section 114 of the Transfer of Property Act on equitable principles, to relieve the tenant of forfeiture,of tenancy, if it was shown to him that the tenant was not in fact in arrears of rent at the time of execution of the proceedings. In construing the true import of Section 13(6) of the Ordinance, if it was observed by late Hamoodur Rehman, J. (As he ten was) : "Having regard to the language of this subsection we find it difficult to accept that the Legislature intended to leave it to be discretion of the Rent Controller to decide whether he would or would not in a given case enforce the default clause. The Legislature itself having provided for the consequence of a default has used mandatory words to direct the Rent Controller to enforce the consequence. The object of this subsection if not so much to afford the landlord and expeditious method of realising the rent but rather to protect a tenant who is mindful of his obligations from eviction. In interpreting the provisions of the Ordinance it must ot be overlooked that the provisions thereof purport not only to curtail seriously the rights that a landlord enjoys under the general law, as contained in the Transfer of Property Act, of evicting a tenant by merely serving upon him a notice to quit - ut also to corelatively give special benefits and protections to tenants under certain conditions. Upon general principles, therefore, where a statute grants a privilege upon certain conditions the person seeking the privilege must show that he has strictly complied with those conditions. Unless those conditions are strictly fulfilled the privilege will not be available of the other party deprived of his rights under the law (vide Maxwell, page 285, llth Edition)." Similarly, when there was a dispute about the rate of rent between the parties,-the Controller determined the rate tentatively for purposes of section 13(6) and directed that this matter could be thoroughly proved in the main proceedings, when the parties adduced evidence in support of their respective claims. This approach of the Rent Controller was approved in Rustam G. Irani v. Javed Qureshi (1975 SCMR 200). In Mushtaq Hussain v. Muhammad Shaft (1979 SCMR 496), this Court repelled a somewhat similar contention in the following words :-- "The order directing deposit of rent in its veiy nature under he statute aforesaid was based on a tentative view of the case and its obedience could be shelved on the ground that first a regular finding after recording evidence regarding actual amount due or about the amount available for adjustment to the tenant should be given because adoption , of that course will tantamount to start a regular trial of the case which is not within the scope of sub-section (6) of section 13 of the Ordinance, for directing deposit of tentative amount of rent. Actually compliance of that direction is a condition precedent for requiring the Rent Controller to examine the bona fides or correctness of the various defence pleas of the tenant or to further proceed with their trial and adjudication." Reference is also made to Begum Copt. Mirza Ghulam Sarwar and another v. District Judge and others (1987 SCMR 25) where Supreme Court of Pakistan has observed: "The learned Judge held that the order under section 13(6) whereby the amount to be paid was fixed tentatively had to be deposited in Court subject to deducting the amount deposited in the Bank against receipts only. The question whether the petitioners were entitled to deduct any money from the rent on account of repairs and whether they had actually incurred the amount towards repairs was a plea that could not be taken finally to establish that there was no default in the payment of rent." Admittedly the appellant has not deposited rent in terms of order dated 29.4.1995 passed under section 17(8) of Rent Act therefore there was failure to deposit amount of rent by the appellant/tenant hence no exception could be taken to the impugned order. In view of the aforesaid reasons, facts and case law cited there is no merit in the contentions of the learned counsel for appellant and nothing has been pointed out whereby impugned order could be said to be against the provision of law therefore the appeal is dismissed in limine, consequently, CMA No. 1082/95 is also dismissed. However, the appellant is directed to hand over the vacant possession of the premises within thirty days subject to conditions that he would deposit the rent with the Controller for the said period. (S.R) Appeal dismissed.

PLJ 1996( Karachi) 156 PLJ 1996( Karachi ) 156 [Rent Appellate Jurisdiction] Present: ABDUL MAJID KHANZADA, J. BASHIR AHMAD MUNIR-Appellant versus Mrs. TAHIRA QURESHI-Respondent First Rent Appeal No. 586 of 1994 dismissed on 14-12-1995. (i) Sindh Rented Premises ordinance 1979 (XVII of 1979)- —S. 15--Tenant-Ejectment of~Prayer for~landlord and tenant-­ Relationship of-Denial of-Challenge to-Contention that learned Rent Controller had no jurisdiction due to non-existence of relationship of landlord tenant-Appellant has tried to take advantage of misdiscription of Respondent in legal notice-Where as appellant himself admitted in. . reply to legal notice that he is tenant-Appellant in his written statement and cross-examination admitted that he is tenant of Respondent-Held, There is relationship of landlord and tenant between parties and Rent Controller bad-jurisdiction- [P. 160] A & B PLD 1973 Quetta , 1981 SCMR 527 and PLD 1995 Karachi 17 ref. !ii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —Section 15 (2) (vii)--Ejectment of tenant-Personal need of landlord-­ Contention that there are existence of inconsistencies between pleadings and evidence of Respondent/Landlord regarding personal bonafide need-­ Admission of Respondent that her husband had opened a tution centre and she is running a boutique business in application, whereas in crossexamination Respondent stated that she is working in a school as teacher-Held: With regard to denial that applicant is not working as school teacher does not seem to be inconsistency- [P. 161] C (iii) Sind Rent Premises ordinance 1979 (XVII of 1979)-- —S. 15 (2) (vii)-Tenant-Ejectment of-Personal bonafide need—Contention that Respondent is a school teacher and her husband is doing a job-­ Appellant has not produced any proof of it—No such suggestion was made in cross examination- [P. 162] D (iv) Sind Rent Premises ordinance 1979 (XVII of 1979)-- —S. 15 (2) (xii)-Tenant-Ejectment of-Personal bonafide need-Contention that Respondent has no experience in business of boutique and despite this, she wants to oust Appellant with malafide intention-Held, Everyone is free to embark on a profession of his/her own liking- Contention of Appellant has no force- [Pp. 162 & 163] E 1991 SCMR 1939,1993 CLC 505 rel. (v) Sind Rent Premises ordinance 1979 (XVII of 1979)-- —-S. 15 (2), (xii)-Tenant-Ejectment of--personal bonafide need-Contention that rented premises are not suitable for, boutique business as entire area is surrounded by 22 motor workshops-Helds: It has come on record quite unchallenged and unrebutted, that area in question is well known for tailoring shops and ladies frequently visit these shops-There are more than 14 tailoring shops 3 are boutiques, two of which are being run by ladies-Appeal dismissed- [P. 164] F 1984, CLC 71, 1993 CLC 505, 1993 CLC 270,1993 CLC 2272,1993 MLD 399, 1993 MLD 386, 1991 MLD 1377, 1993 MLD 876, 1994 CLC 1875, PLD 1994 Karachi 209 ref. Petitioner through SyedAli Ahmed, Advocate. Respondent through Amanulalh Khan, Advocate. Date of hearing 29-10-1995. judgment This appeal has been filed against the order dated 31.8.1994 passed by the learned Vth Rent Controller Karachi East, whereby he allowed the application filed by the Respondent for ejectment of the Appellant from the rented premises. 2. The brief facts of the case are that one Mrs. Anwar Begum (who was the mother of the Respondent) was granted sub-lease of two plots of land, each measuring 60 square yards, situated at PECH Society Ltd., Karachi . She raised the construction of five shops on the ground floor and two flats on the first floor. In the year 1969 she let out the five shops to the Appellant. Subsequently, in the year 1974 she also let out the flat on the rear portion of the building to the Appellant. However the flat situated on the front side of the building remained with her. The Appellant had been paying the consolidated rent for the five shops and the flat to her. 3. The siad Mrs. Anwar begum made a gift of both the plots of land and the building constructed thereon to her daughter, the Respondent, who became the owner of the same. The Appellant became the tenant of the Respondent and started paying the rent to her. 4. The case of the Respondent is that she and her husband are highly educated. They were teaching in the universities of foreign countries. They decided to return to their countiy and to use and occupy the rented premises for their livelihood. On various occasions the Respondent herself and through her husbknd requested the Appellant to vacate the rented remises as soon as they arrived in Pakistan . The Appellant promised to comply with their request. Ultimately they returned to Pakistan with intent to have permanent abode at Karachi and to occupy and use the rented premises for their business purposes. On arrival the Respondent requested the Appellant to vacate the rented premises. The Appellant promised to vocate the rented premise but requested for time to make arrangements for shifting. The process continued but the Appellant did not vacate. The Respondent served the Appellant with the legal notice dated 29.8.1992 calling upon him to vacate the rented premises. But the Appellant gave false and evasive replie. The husband of the Respondent started a tution centre under the name of Danis}i-Kada, but there was no success. The respondent thereafter opened a Boutique in the portion in her possession. This business became successful and flourished day by day. But the portion in possession of the Respondent is too small for this business. The Respondent wants to expand her business. Therefore the respondent needs the rented premises for her own use and occupation and need is genuine and bonafide. The respondent wants to establish the display centre/show room jn the five shops on the ground floor and use the flat in possession of the Appellant for tailoring purposes. She shall use the flat in her possession for office, storage and dealing with customers. It has been alleged that the Appellant has failed to pay the rent from April 1993. It has been further alleged that the Appellant has without the permission of the Respondent, removed the partition walls of the said five shops and thereby has caused damage and impaired the material value and utility of the shops. The Respondent sought the ej ectment of the Appellant on these three grounds. 5. The Appellant in his written Statement has denied and rebutted the case of the Respondent. The Appellant has challenged the jurisdiction of the learned Rent Controller on the ground that the Respondent in the legal notice dated 29.8.1992 had described him as the caretaker/trespasser. The respondent has been pressurizing him for enhancement of rent. He has denied that the Respondent needs the rented premises for bona fide personal use. He has alleged that the Respondent has approached various estate agents for selling of the building on high price. He has stated that the applicant is a school teacher and her husband is also doing the job. The Appellant has denied that the Respondent is doing the boutique business. He has said that the respondent has no experience of boutique business. The Appellant is running the motor workshop in the shop on the ground floor. The area is known for the business of motor workshops and there are more than 22 motor workshops. No woman can run a boutique in the rented premises. The Appellant has denied that he has committed default in the payment of rent. He has pleaded that he has been regularly paying the rent through cross-cheques, which she used to deposit in her bank account. When the Appellant came to know that the Respondent is not presenting the cheques in her account, he tendered the rent through money orders, but the respondent refused to receive the money orders. Thereafter he is depositing the rent in the Court in a Misc. Rent Case. The Appellant has denied that he has removed the partition walls of the shops on the ground floor and caused damage or impair their utility. He has stated that no such walls were ever situated in the shops. 6. The respondent filed the affidavit-in-evidence of her husband and attorney who produced a number of documents. He was cross-examined by the learned counsel for the Appellant. The Appellant filed his own affidavitin-evidence and he produced some documents. The Appellant was crossexamined by the learned counsel for Respondent. . 7. The learned Rent Controller framed the following issues on the basis of the pleading s of the parties:- (1) Whether there exists relationship of landlord and tenant between parties? (2) Whether the demises premises are required by the applicant for her personal use in good faith honestly? (3) Whether the opponent has committed a wilful default in payment of monthly rent to applicant? (4) Whether the opponent has caused damage, to the demised premises by removing the partition walls and has impaired the material value and utility of the same? (5) What should the order be? 8. The learned Rent Controller decided the Issue No. 3 in favour of the Appellant and the Issue No. 1, 2 and 4 in favour of the Respondent and allowed the Rent Application and directed the appellant to hand over the possession of the rented premises to the respondent. 9. The learned counsel for the Appellant has raised the following pleas in support of his appeal: (i) the learned Rent Controller had no jurisdiction; (ii) there -are inconsistencies between the pleadings and evidence of the respondent; (iii) the respondent had demanded the enhancement of rent; (iv) the demand for ejectment on personal need is mala fide; (v) the appellant has not impaired the value and utility of the shops. 10. With regard to the question of jurisdiction the arguments of the learned counsel for the appellant is that the respondent in legal notice dated 29.8.1992 had described the Appellant as care-taken/trespasser and hence the learned Rent Controller had no jurisdiction to try the case. It is an established law that a Rent Controller has to jurisdiction if there is relationship of landlord and tenant between the parties. The learned counsel for the appellant has avoided to argue that there is no such relationship between the parties. He has rightly done so because it is the case of Appellant himself that he is the tenant and the respondent is the landlord/owner of the rented premises. The learned counsel for the Appellant has tried to take the undue advantage of the misdescription of the Respondent in the said legal notice. It is interesting that the iearned counsel i in his letter dated 8.9.1992, in reply to the siad legal notice, had stated that the appellant was the tenant of the Respondent and had been paying the i rent to her. The authority reported as Faqir Muhammad vs. Mulla Mahmood PLD 1973 Quetta 1, cited by the learned counsel for the appellant, does not apply to the facts of present case. In the reported judgment the facts were entirely different. The facts of the reported case were that the rent application had unequivocally dubbed the appellant (in that case) as a trespasser and the same stand was maintained by the respondent (in that case) in his statement during the proceedings before the Rent Controller and the appellant (in that case) also in his statement did not acknowledge the respondent (in that case) as his landlord and even one of the ground of that appeal was that there was no relationship of landlord and tenant between those parties. On the other hand, in the present case the respondent in paras 1, 2, 7,11, 15,16 and 18 of the Rent Application has asserted that she is the owner/landlord and the Appellant is her tenant in respect of the rented premises. The Appellant in paras 6, 9, 12 and 15 of the written statement has admitted that he is the tenant of the respondent in respect of the rented premises, who is the owner/landlord of the same. Even in the affidavit-in-evidence of attorney for respondent it has been repeatedly stated that the respondent is the owner/landlord of the rented premises and the Appellant is the tenant in respect thereof. This fact has not been questioned in the cross-examination of the attorney for the respondent. It is also important to mention that the Appellant in his cross-examination has admitted that he is the tenant of the respondent. The learned counsel for the respondent has argued that the respondent is the owner/landlord and the Appellant is the tenant in the light of the definitions given in Section 2 (f) and (j) of the Sindh Rented Premises Ordinance. He has contended that the learned Rent Controller had the jurisdiction to try the case. In support of his plea he has cited the cases of Abdul Earned vs. Abdul Rasheed (1981 SCMR 527) and Abdul Shakoor vs. M/s. Abdul Razzaque (PLD 1995 Karachi 179). In the Supreme Court case, the landlord's statement acknowledging the petitioner to be his tenant, was held, sufficient to establish tenancy in absence of any evidence to contrary. In the Karachi case it was held that the respondents in the past had admittedly paid rent to appellants and the respondent in his cross-examination had admitted that appellants were landlords and respondents were their tenants, as such the relationship of landlord and tenant was proved in the circumstances. The learned counsel for the respondent has pointed out that in the legal notice the word trespasser was not used and the notice was in respect of the flat only. He has further drawn the attention that the tenancy is in respect of five shops on the ground floor and one flat on the first floor for which the appellant has been paying the consolidated rent. In view of above discussions it is clear that there is relationship of landlord and tenant between the parties and the learned Rent, Controller had the jurisdiction in the matter. 11. The learned counsel for the Appellant has argued that there are inconsistencies between the pleadings and evidence of the respondent. He has pointed out that the respondent had described the appellant as care­ taker in the legal notice, she had asked for fresh rent agreement, she has stated that her husband had opened a tution centre and she is running a boutique business and in the cross-examination the attorney for the respondent has stated that "it is incorrect that applicant is working in a school as teacher though she is teaching privately". These are not the inconsistencies in any way. The point of care-taker has already been dealt with above. The asking for fresh rent agreement is neither illegal nor inconsistent. It has been categorically stated in the Rent Application and then repeated in the affidavit-in-evidence of the attorney for the respondent that the husband of the respondent had opened a tution centre which did not meet with success and thereafter the Respondent opened a boutique. In view of this fact there is no question of any inconsistency. With regard to the denial that the applicant is not working as school teacher though teaching privately, there does not seem to be inconsistency. 12. As regards the allegation of demanding the enhancement of rent, the learned counsel for the respondent has argued that there is no evidence on record. He has pointed out that the Appellant in his crossexamination has admitted that the rate of the rent was always increased with his consent. The learned counsel for the respondent has further argued that even otherwise the demand for increase of rent if presumed to be true, does not per se cast any doubt about personal bona fide requirement. In support of his arguments he has relied upon the cases of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505 @ 509) and Iqbal Sulaiman vs. Mst. Shagufta (1986 MLD 1385 @ 1388). In view of these authorities the contention of the learned counsel for the Appellant has no force. 13. On the point of malafide the arguments of the learned counsel for the Appellant are three-fold. Firstly, he has argued that the respondent is a school teacher and her husband is also doing the job. The attorney for the Respondent in his cross-examination has denied that the respondent is a school teacher. He has further stated that since 1989 the respondent is not teaching any where. The Appellant has not produced any evidence to substantiate this plea. The learned counsel for the respondent has argued that in the case of Mrs. Chung Ying Hsiung vs. Seema Saeed (1993 CLC 505 @ 509), one of the applicants/landlords was a school teacher and despite of this fact the tenant was ordered to be ejected on the ground of personal use. Similarly, the appellant has not produced any proof that the husband of the respondent is doing any job. In the cross-examination of the attorney and husband of the respondent no such suggestion was made. In the crossexamination of the Appellant this allegation was challenge. 14. The second limb of argument of the learned counsel for the appellant, on the point of malafide, is that the respondent has no experience in the business of boutique and despite this fact she wants to oust the Appellant with mala fide intention. The learned counsel for the respondent has met this objection by relying upon the case of Mrs. Chung Ying Hsiung vs. Mst. Seema Saeed (1993 CLC 505). In the reported case same objection was raised. The relevant paras 11 and 12 of the report are reproduced below: "11. The contention at S. No. (ii) was considered by this court in the case of Sher Ahmed Jan v. Mst. Zubeda Nasreen, reported in 1989 CLC 1113, and was answered in the following words :- "The word "business applied to an occupation of a mercantile of commercial nature. The physical involvement for carrying on business or trade is not necessary. The impression that the respondent should have skill or capability to do the business of tailoring herself is wholly misplaced. The word "business" by itself is very comprehensive and it may at some time include carrying on of a business through employees." "12. In the case of Mst. Ghulam Fatima and 3 others v. Noor Hussain, reported in 1991 SCMR 1939 the following observations were made:- "As regards the second ground, it is not the requirement of law that the landlord/landlady must establish on record that he/she is badly in need of earning livelihood for getting his/her own property vacated for his/her personal use. With the galloping inflation in the countiy and when every one is free to embark on a profession of his/her own liking a chance cannot be denied even to those who have not worked so far from stalling a business or participating in an enterprise for the purpose of augmenting their income and fulfilment of their aspirations." In view of above authorities this contention of learned counsel for the Appellant also has no force. 15. The third contention of the learned counsel for the appellant, on the point of mala fide, is that the rented premises are not suitable for boutique business as the entire area is surrounded by 22 motor workshops. He has argued that no woman can run the boutique business and no woman would come for shopping in such area. There is inconsistency with regard to motor workshops in the pleading and evidence of the appellant. In para 14 of the Written Statement the appellant has given the number of workshops as 22 ; whereas in para 9 at page 4 of his affidavit-in-evidence he has stated that the number of workshop is 28. In the cross-examination of the attorney for the respondent a suggestion was made with regard to workshops, which he has replied that "It is incorrect that there are so many other workshops in the same street where the demised premises is situated." The claim that there are various workshop (either 22 or 28) was challenged in the crossexamination of the appellant, which he had replied that "it is incorrect that there is only one workshop at Khushal Road which belongs to me." In view of assertion by Appellant and denial by respondent about various workshops, it was the obligation of the appellant to have proved the same. But he has not produced any evidence, and has failed to discharge the burden. As against this, the attorney for the respondent in para 16 of his affidavit-in-evidence has stated as under:- "The area in question is well known for the tailoring shops and the ladies frequently visit these shops and the applicant's boutique. Just adjacent to the five shops rented out to the opponent there are four tailoring shops namely, Ali Tailors, Sain Baba Tailors, Masin Tailors and Barkat Ali Tailors." Again, in para 22 of the affidavit-in-evidence of the attorney of the respondent, it has been stated as under :- "That I further say and submit that it is not time that the area where the said building is located is not suitable for Boutique and Tailoring business and that no woman can run a Boutique there. It is respectfully submitted that on the same road where the said five shops are situated and around the corner, there are more than 14 Tailoring Shops, 3 of them are Boutiques. Two of these Boutiques are being run by the ladies. As a matter of fact 4 of these tailoring shops, in a row, are located adjacent to the said five shops under the name and style of: 1. Ali Tailprs, 2. Sain Baba Tailors, 3. Yasin Tailors, ,4. Barkat Ali & Sons (Naval and Civil Tailors). The learned counsel for the respondent has argued that the above statements have not been challenged in the cross-examination of the attorney for the Respondent and hence the same go unrebutted and are deemed to have been admitted by the appellant. The learned counsel for the respondent has further argued that the suitability of sufficiency of the premises is the prerogative of the landlord and it is not for the tenant to say that the premises are not suitable for the landlord. In this submission he has relied upon the following authorities: Mst. Ghulam Sakina vs. Khaliq Bari (1984CLC71) Mrs. Chung Ying Histung vs. Mst. Sakina Saeed (1993 CLC 505) Miss Zafar Fatima Rizvi vs. Syed Saleem Raza (1993 CLC 270) National Bank of Pakistan vs. Sh. Muhammad Sharif (1993 CLC 2272) Muhammad Sanaullah vs. Allah Din (1993 MID 399) Ghulam Hyder Baluch vs. Ghulam Nabi (1993 MLD 386) The learned counsel for the appellant has cited the authorities, (1) Haji Gulab Baig vs. Mst. Syeda Tayaba Ishtiaq (1991 MLD 1377), (2) Jamaluddin vs. Muhammad Anwar (1993 MDL 876), (3) Attya Badar v. Haji Munshi Khan (1994 CLC 1875) and Zohra Bai v. Messrs Standard Industries Ltd. (PLD 1994 Karachi 209). These authorities can be distinguished. In the case of Haji Gulab Baig the Rent Application was filed on the ground of personal use for the sons of the landlord. But the particulars were not given in the Rent Application as well in the affidavit-inevidence. Both were vague. The names and ages of the sons were not mentioned. No detail of accommodation in possession of landlord was given. The case of Jamaluddin relates to the personal use of the children of landlord. Here also neither the number of children nor their ages were given. The nature of business was also not mentioned. Necessary details were not given. But there was a general statement with regard to personal use. In the case of Attiya Badar it was held that mere desire of landlord to occupy the premises for personal use was not enough. The landlady was patient of asthma. The nature of the business was not disclosed. It was held that the landlady had failed to prove her case and she had tried to rely upon the weakness of the case of the tenant. The premises were situated in the congested locality of Hyderabad and it was held that it was not possible for a lady to run business in an open shop. In the present case the circumstances are totally different. The social conditions of Hyderabad are at large variance with that of Karachi. In the present case, it has come on record, quite unchallenged and unrebutted, that the area in question is well known for the tailoring shops and the ladies frequently visit these shops and there are more than 14 tailoring shops, 3 of them are boutiques, two of which are being run by the ladies. In the case of Zohra Bai it was averred that the member of family had multiplied which gave the impression that the premises were required for residential purposes; whereas the landlord had asked for the premises for commercial purposes. The necessary particulars were not given. On the contrary there was contradiction in the contents of Rent Application and affidavit-in-evidence. The landlord had tried to rely upon the weakness of the case of the tenant instead of proving his own case. 16. The learned counsel for the respondent has argued that the defence of the appellant is false, frivolous and based upon mala fide. He has pointed out that the appellant in paras 14 and 9 of the Rent Application and affidavit-in-evidence respectively, has denied that the respondent is carrying on the business of boutique. He has further pointed that the same position was maintained in the cross-examination of the attorney for the respondent where on the suggestion of the learned counsel of the appellant the attorney for the respondent had said that "It is incorrect that there is no Boutique shop. It is incorrect that 1 have decorated our own clothes in the same shop." The learned counsel for the respondent has then referred to the crossexamination of the appellant where he had said that "It is correct that applicant is running a Boutique shop." 7. The learned counsel for the respondent has argued that it is an established law that on the ground of personal bona fide need the case of landlord stands proved, if (i) his statement in the pleading sin consistent with his evidence, (ii) his statement has not been shaken in the crossexamination and (iii) the case of the landlord has not been rebutted in the evidence of the tenant. In support of this argument he has referred to the following authorities:- Muhammad Ishaq vs. Fateh Muhammad, (1984 CLC 2527) Younus vs. S. Aziz Ahmed, (1993 CLC 2380) Iqbal Sulaiman vs. Mst. Shagufta, (1986 MLD 1385) Atiuddin vs. Saleem Karim, (1993 MLD 410) Anis Ahmed vs. Tasawar Jahangir (1993 CLC 1759) Syed Nazir Haider vs. Amanullah (1986 MLD 347) Rafmddin Ahmed Khan vs. Mst. Noor Jehan 1986 MLD 1606) Mirza Yawar Baig vs. Usman Ghani Chippa (1989 CLC 247) 18. It has already been held above that there is no inconsistency between the statement of the respondent in Rent; Application and evidence produced on her behalf. I have minutely gone through the cross-examination of the attorney for the respondent and have come to the conclusion that his estimony has not been shaken in the cross-examination. The Appellant has not been able to rebut the case of the respondent in his evidence. On the contrary the learned counsel for the respondent has argued that there is no evidence on behalf of the Appellant as the affidavit-n-evidence of the appellant is not admissible iii evidence. The learned counsel for the respondent has pointed out that the appellant has, in his cross-examination, admitted that "I have signed on my affidavit in evidence in the office of my counsel and there was no any person present at that time." The learned Counsel for the respondent has contended that since the affidavit-in-gvidence was not sworn by the appellant before the Oath Commissioner, it is not ad­missible in evidence. In support of this plea he has relied upon the authority of Master Muhammad Bashir vs. Moinuddin reported as 1990 CLC 703, 19. On the ground of impairing the value and utility of the five Shops the case of respondent is that the appellant without her permission or consent has removed the partition walls of the siad shops., The attorney for the respondent in para 19 of his affidavit-in-evidence has stated that the appellant by letter dated 27.5.1975 has requested the mother of the respondent (who was the owner of the building at that time and had not gifted the same to the respondent till then) to grant the permission to remove the main wall running between four of the said five shops. He has produced a photocopy of the said letter. The attorney for the respondent has further said that no such permission was granted to the appellant. Despite this fact the appellant has removed the partition walls and has caused damage and impaired the material value and utility of the rented premises. This statement has not been challenged in the cross-examination, which would be deemed to have been admitted. On this point the appellant has given the contradictory version. In the written statement as well as in the affidavit-in-evidence the appellant has stated that he has not removed the walls and no such walls.every existed. But contrary to this, he has stated, in his cross-examination, that "The same partition wall is still exist there." The learned counsel for the respondent has submitted that this contradiction exposes the falsehood of the case of the appellant. To support the argument that the removal of the partition walls has impaired the value and utility of the shops the learned counsel for the respondent has cited the authority reported as Mirza Mustafa Beg vs. Mst. Khatoon Hadi (1983 CLC 2063), where it was held that in the case s of this nature, it is reasonable to infer that the removal of wall would impair the value, or, utility of the premises. 20. Considering the above legal and factual position the impugned order does not call for interference. I see no merits in this appeal which is according dismissed with no order as to costs. However, two months time from now is allowed to the appellant for handing over vacant possession of the premises in question'to the respondent. MMA Appeal dismissed.

PLJ 1996 Karachi 167 PLJ 1996 Karachi 167 Present: abdul rahim kazi, J. MOHSIN ALI KHAN--Appellant versus MUMTAZ ALI--Respondent FRA No. 25/92 dismissed on 2.10.1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- -—S. 15--Tenant-Ejectment of--Appeal against--If a landlord seeks ejectment oh ground of personal use, to prove his good faith is that he should show that he requires same for his own use or use of his child and that they are not gain fully employed in any other vocation-Where landlord intends to extend his business, situation would be different as in such case his being gainfully engaged in very trade or business would not come in his way in seeking ejectment-Respondent has been able to establish fact that his son is not gainfully employed or engaged in any vocation at Canada and thus the obvious inference would be that he would want to start business-There appears to be no denial to wish of respondent who is a retired police officer to start his own business alongwith his son in demised premises-Appeal dismissed. [P. 171] A Mr. Z. U. Ahmad, Advocate for Appellant. Mr. Mirza Yawar Hassan, Advocate for Respondent. Date of hearing: 2.10.1995. , ' judgment This appeal has been filed challenging the orders passed by the Vth Senior Civil Judge and Rent Controller, Karachi (East) in rent case No. 447/87 whereby the appellant was directed to hand over the vacant possession of the disputed premises to the respondent. Briefly the facts are that the present respondent is the owner of the plot and building constructed thereon bearing No. 2-A, Block 6, P ; ECHS Karachi. Originally this plot was residential but later on it was got converted into commercial. The present appellant had initially filed a suit being suit No. 86/77 against he present respondent for declaration and injunction while the present respondent had also filed a suit against the present appellant for compensation, injunction, mesne profits and possession being suit No. 1017/79. However, a compromise was entered into between the parties in the later suit whereby the present respondent accepted the appellant as his tenant with regard to premises in dispute at the monthly rent of Rs. 2000/- with effect from 10.9.85 and the present appellant gave undertaking that he will not use the premises for a purpose which may cause nuisance to other tenants of the building and also that he will not carry on the business of denting painting nor he will install any foundary in the premises. This compromise was made on 10.9.86 and suit No. 1017/79 was decreed in terms of the compromise whereas the suit of the present appellant (86/77) was dismissed as withdrawn on the same date. Thereafter the present respondent filed the rent case against the present appellant under section 15 of the Sindh Rented Premises Ordinance, hereinafter referred to ss the ordinance. The grounds on which the ejectment was sought are that the respondent required the premises for his personal use and that of his son as he wanted to open a store for sale of general merchandise and medical items. He has also pleaded that appellant had caused damage to the premises and also had committed acts of nuisance. The appellant submitted his reply wherein he denied the above allegations. The case of the present appellant further is that the son of the respondent is a professional pop singer who is gainfully employed in Canada and therefore the plea of personal requirement taken by the respondent is not in good faith. He has also pleaded that the ejectment case has been filed by the respondent with mala fide intention. T.ie respondent filed his affidavit-in-evidence and was subjected to quite a lengthy crossexamination. He also filed affidavit-in-evidence of his son Khalid Saleem who has not been produced for cross-examination and therefore his affidavit cannot be taken into consideration. The respondent then closed his side. Appellant filed affidavit-in-evidence and was subjected to cross-examination. He then closed his side. The rent controller after hearing the arguments has been pleased to allow the rent case filed by the present respondent and directed the present appellant to put the respondent in vacant possession of the demised premises within 60 days on refund of Rs. 1,25,000/- (one lace and twenty five thousand). Being aggrieved the appellant has preferred this appeal. However, during pendency of appeal appellant at his request was permitted to bring additional evidence on record in the form of affidavit of one K.M. Sharif who filed his second affidavit also and he was also crossexamined. The matter is now come up for final hearing. I have heard Mr. Z.U. Ahmed, learned counsel for the appellant and Mirza Waqar Hassan, advocate for respondent. The learned Rent Controller had settled the following issues for determination. 1. "Whether applicant requires the demised premises for his personal bonaflde need and that of his son Khalid Saleem in good faith ? 2. Whether the opponent is causing any nuisance to the neighbourers? 3. Whether the opponent has caused any damage to the demised premises ? 4. What would the order be ?" As regards the issue Nos. 2 and 3 the finding of the learned Rent Controller is that the same has not been proved. Thus the only issue to be agitated is issue No. 1 and.it is to be determined as to whether the present respondent required the demised premises for his personal need and that of his son Khalid Saleem in good faith Both the counsel had reiterated their contentions and have referred to the evidence and the cross-examination of the parties. The question to be resolved is as to whether the present respondent has been able to prove his contention or the present rent case is filed with mala fide intention. Now the case of the respondent is that his son Khalid Saleem needs this premises for opening a store where the general merchandise and medical items will be on sale. In his evidence he has stated that his son Khalid Saleem is an Intermediate who discontinued his further education in year 1969 and from 1969 to 1976 he was doing private service in different factories. He has given the names of one of them to be Liberty Mills Karachi. He has also stated in his cross-examination that his said son remained jobless from 1976 onwards and went to Canada where also he his still jobless. In cross-examination he has further stated that singing was the hobby of his son and that his son has no concern with the show-business. Of course, he has admitted that his son had gone to Canada with the intention to settle there and his wife and children are also with him. However the fact that his son is without any job and is not gainfully employed in Canada has not been rebutted. Learned counsel for the appellant has placed much reliance on the evidence of his witness K.M. Sharif who states that he knew one person Saleem Ahmed who lives in Toranto and that he had contacted this Saleem Ahmed and received information from this Saleem Ahmed that Khalid Saleem the son of present respondent is settled in Canada and has acquired a permanent residence there and is cariying on lucrative carrier by holding musical conceits. This K.M. Sharif has produced a fax letter from the said Saleem Ahmed which is dated 19.2.93. Relying on this letter the counsel for the appellant has argued that the plea of personal requirement taken by the respondent is not substantiated. It may be observed that the evidence of this K.M. Sharif is at the best a heresay evidence as neither the said Saleem Ahmed has been examined in the case nor he has even brought on record his affidavit which could have been sworned in Pakistan Embassy in Canada. It may further be observed that this fax letter by itself also cannot be treated as a conclusive piece of evidence unless proved by its author. In these circumstances I am not inclined to accept this evidence of K.M. Sharif nor I can rely on the said fax letter. The assertion of the respondent that his son is not employed and is jobless does not stand rebutted. "Now the second question which requires consideration is whether the respondent requires the premises for .his own personal use and that of his son in good faith. A reference may be made to para 6 of the application for ejectment filed by the respondent wherein it is clearly stated the applicant desires to set up his son in business in general merchandise and medicinal items and that the said son will manage the business with the assistance of the present respondent. Of course in reply in the Written statement the appellant has denied the above contention and then set up the case that the said son of the respondent is a professional singer and that these premises in dispute are not suitable for the purpose of theater or showbusiness. As pointed out above it is not the case of the respondent that his son as singer or that he needs the premises for theater or show-business. He case is on the contrary that he needs the premises for the shop of general merchandise and medicine. Mr. Z.U. Ahmed, counsel for the appellant has further argued that it was only on 10.9.86 that the above referred compromise was entered into between the parties and that admittedly in consequence of this the respondent had received Rs. 1,25,000/- (one lac twenty five thousand) from •the appellant. However, it has not come in his evidence as to in what respect this amount was received. In such circumstances, the appellant could sue for refund of the said amount and the order to the Rent Controller has taken care of this aspect by ordering the ejectment subject to refund of Rs. 1,25,000/-. Mr. Z.U. Ahmed has then placed reliance on the case of (Malik Islam Akbar v. Mustafa Hussain) reported in (1992) CLC 1753) wherein a learned single judge of this Court has held that a landlord could not get his tenant evicted on the ground of personal requirement without establishing his bona fides. He has also placed reliance on the case of (Mst. Noorun Nisa v. Qamar-ul-Huda) reported in (1988 CLC 1833) wherein (Saleem Akhtar, J. as his lordship then was) has held that personal requirement of the landlord should be bona fide and in good faith and that the rights of the landlord were sufficiently restricted for claiming ejectment of a tenant and that no such ejectment could be granted unless he brought the case with in four corners of section 15 of the Ordinance. He has also placed reliance on the case of (M.S. Khan v. S.M. Siraj-iid-Din) reported in (1985 CLC 562) wherein it was held that the landlord will not be entitled to get ejectment in a case where the mala fides on his part appeared from the evidence and landlord had concealed the facts from the Court. He has also placed reliance on a number of other case in respect of above contention. As against this Mr. Waqar Hassan learned counsel for the respondent has placed reliance on the cases of (Muhammad Anwar v. Muhammad Saeed) reported in (1991 SCMR 2337). In this case their lordships while dealing with a similar case have held that the personal need of a landlord would include need of his son who was not gainfully employed and that the landlord could combine his own personal need with that of his adult son and thus primarily such personal need of landlord has to be catered for. He has also placed reliance on the case of (Mst. Ghulam Fatima v. Noor Hussain) reported in (1991 SCMR 1959) wherein their lordships have held as under :- "As regards the second ground, it is not the requirement of law that the landlord/landlady must establish on record that he/she is badly in need of earning livelihood for getting his/her own property vacated for his/her personal use. With the galloping inflation in the countiy and when eveiy one is free to embark on a profession of his/her own liking, a chance cannot be denied even to those who have not worked so far, from starting a business or participating in an enterprise for the purpose of augmenting their income and fulfilment of their aspirations." Counsel for the respondent has also referred to the case of (Muhammad Bashir v. Sakhawat Hussain) reported in <1991 SCMR 846. In this case their lordships have held as under :- "No legal impediment in the way of landlord existed if he wanted to start business in the demised premises in spite of the . fact that he was a rich man and had no children—Landlord could do whatever he liked with his property and if interest of tenant was involved because property of landlord was rented out to him, his rights were protected under the law-If landlord did not contravene the provisions of law, which allowed him the relief, then it was not open to the tenant, or even for that matter to the Court, to make a comment as to what landlord should do or should not do." Learned counsel for respondent has also referred to the case of (Agarya Amir All v. Abdul Majeed) reported in (1993 SCMR 67) wherein also it was held by the Hon'able Supreme Court that a landlord was not required to give fullest possible description of personal use of property where he had mentioned that he needed the premises for his personal use for his work. Counsel for the respondent has also referred to a number of other cases on this point. Of courts it is settled law that mere ipse dixit of landlord of his wish to occupy a certain premises is not sufficient unless good faith is proved. However, in view of the above discussion it may be observed that all that landlord is required, in a case where he seeks ejectment on the ground of personal use, to prove his good faith is that he should show that he requires the same for his own use or use of his child and that they are not gainfully employed in any other vocation. However, in such cases where the landlord intends to extend his business, the situation would be different as in such case his being gainfully engaged in the eveiy trade or business would not come in his way in seeking ejectment. In the present case the reading of the evidence would clearly show that the respondent has been able to establish the fact that his son is not gainfully employed or engaged in any vocation at Canada and thus the obvious inference would be that he would want to start the business mentioned in the present case. There appears to be no denial to the wish of the present respondent who is a retired police officer to start his own business alongwith his son in the demised premises. For these reasons I am of the view that the present respondent has been able to establish his case and there are no grounds to interfere with the judgment of the Rent Controller. Accordingly, I dismiss the present appeal with costs. The appellant will hand over the vacant possession of the premises to respondent within a period of two months from the date of this order. (K.K.F.) Appeal dismissed.

PLJ 1996 Karachi 172 PLJ 1996 Karachi 172 [Circuit Court Larkana] Present: rana bhagwan das, J. MIR MUHAMMAD alias MIRAL-Petitioner versus GHULAM MUHAMMAD-Respondent Civil Revision No. 57 of 1994, dismissed on 26.11.1995. (i) Specific Relief Act, 1877 (I of 1877)- —S. 42 & 54-Suit for Declaration & Permanent Injunction-Dismissal of- Challenge to-Whether petitioner not entitled to relief of injunction for not asking for specific performance-Question of-Petitioner is not entitled to decree for permanent injunction since he did riot ask for relief of specific performance-Suit, for declaration essentially based on agreement of partnership was completely misconceived and not maintainable at law-­ Grant of Declaration under section 42 and relief of injunction under section 54 of Specific Relief Act and exercise of Revisional jurisdiction under section 115 C.P.C. is purely discretionary in nature-Held : Petitioner not entitled to any relief-Petition dismissed. [P. 177] B & C (ii) Specific Relief Act, 1877 (I of 1877)-- —Declaration & Permanent Injunction-Suit for-Dismissal by trial as well as by Appellate Court-Challenge to-Whether suit for declaration and Permanent injunction maintainable in presence of agreement-Question of~Partnership agreement executed by respondent in favour of petitioner does not per se create interest or charge on property on principle as well as on authority, much less any title to it-Held : Only, right to seek Specific Performance is created. [P. 174] A Mr. Illahi Bux Kehar, Advocate for Petitioner. Mr. Rehmat AH Rajput, Advocate for Respondent. Date of hearing: 26.11.1995. judgment This Revision application is directed against the appellate Court's judgment and decree dated 29.1.1989 up-holding the judgment and decree passed by the trial Court dismissing a suit for declaration and injunction filed by the petitioner against the respondent. 2. Briefly stated facts are that Survey Nos. 314, 315, 316 and 317 Deh Mirzai taluka Dokri were granted in favour of the respondent by the Barrage authorities on 27.11.1959. It is the case of the petitioner that the lands were jointly purchased by him as well as the respondent who is none else than his real nephew. It is further his case that he had paid his share of instalments for payment to the Government and on 1.9.1961 parties privately partitioned the lands with the result that Survey Nos. 314 and 315 fell to the share of the petitioner whereas remaining two survey numbers to the share of the respondent. Simultaneous with the private partition, possession of survey Nos. 314 and 315 was handed over to the petitioner who enjoyed possession as well as the produce of the suit land. On being approached to get the record of rights mutated in favour of the petitioner and declining to do so on the part of the respondent, the petitioner was obliged to file suit No. 15/1975 renumbered as Suit No. 86/1982. 3. The suit was resisted by respondent who filed a written statement denying all averments and asserting that the lands were exclusively purchased by him from the Barrage authorities; that he had paid all instalments from his resources; that there was no private partition of the suit lands between the parties and consequently possession of the suit lands was never transferred to the petitioner. Various legal issues were also raised which were reflected in the following issues at the trial :- 1. Whether the plaintiff was partner with the defendants in purchase of survey Nos. 314, 315 316 and 317 in suit and has contributed in payment of instalments etc ? 2. Whether the agreement of partnership dated 1.9.1961 was executed between the parties and plaintiff believed Survey Nos. 314 and 315 in private partition between the parties ? 3. Whether plaintiff is in adverse possession of Survey Nos. 314 and 315? 4. Whether the plaintiff is in possession and enjoyment of the suit land as its owner or he is lessee of the defendant ? 5. Whether the cause of action has arisen to the plaintiff ? 6. Whether the suit is in proper form ? 7. Whether the suit is maintainable at law ? 8. What should the decree be ? 4. At the trial of the suit petitioner examined himself as PW-1, Abdul Razaque PW-2, Umaruddin PW-3 and Ghulam Rasool PW-4 whereas respondent examined himself and Muhammad Ramzan. 5. On assessment of evidence, learned trial Court answered all the issue in negative and dismissed the suit vide judgment and decree dated 18.4.1987. Civil Appeal No. 40/1987 filed by the petitioner met the same fate but the appellant Court held that the petitioner was a partner with the respondent in the purchase of the lands; there was private partition between the parties whereby suit lands went to the share of the petitioner. Issue relating to adverse possession was found in negative. Petitioner was found to be in possession and enjoyment of the suit land by virtue of the partnership agreement. On issue No. 5 appellant Court held that the plaint disclosed a cause of action. On issue No. 6 and 7, he came to the conclusion that in the face of the partnership agreement, suit for declaration and injunction was not maintainable and that the petitioner should have sued for specific performance of the contract. It is against the judgment and decree that the present Revision Application was preferred. 6.' After a short hearing, following points were formulated by this Court for consideration, on the last date of hearing :- 1. Whether the suit for declaration and injunction without seeking relief of specific performance was maintainable at law? 2. Whether the applicants are entitled to a decree of declaration in consequence of an agreement of partnership in respect of the suit lands as a result of findings recorded by the appellate Court ? 3. Whether the applicants are estopped from seeking the relief of specific performance of contract by reason of provisions contained in order II Rule 2 CPC ? 7. It is settled proposition of law that in the event of conflict of judgment, view expressed by the appellant Court should ordinarily be preferred unless the same is contrary to evidence on record or in violation of the settled principles for administration of justice. In the present case, it is not shown that the findings of fact recorded by the Appellate Court on Issue No. 1 and 2 are perverse, arbitrary or capricious. Scrutiny of the oral as well as documentary evidence on record indeed supports the view taken by the appellate Court that the lands were jointly purchased by the parties in the name of respondent who had entered into an agreement of partnership with the petitioner in 1961. 8. Under the provisions of Section 42, Specific Reliect Act, any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his tittle to such character or right and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. It would seem that the law authorises a person to seek enforcement of his right to any property instituting a suit against a person denying his right or title by way of a a suit for declaration. Partnership agreement Exh. 184 executed by the respondent in favour of the petitioner however does not per se create any interest or charge of the property. Therefore on principle as well as on authority, this agreement does not create any interest in the property much less any title to it. Agreement on the face of it indeed does not create right of ownership in the suit lands in favour of the petitioner and it only creates a right to seek specific performance of the agreement subject to fulfilment of the terms and conditions of the agreement. Obvious reasons for this propositions is that under the provisions of Section 17 read with Section 49 of the Registration Act, every document purporting to create any right, title or interest of the value of Rs. 100/- and upwards requires compulsory registration. Likewise section 54 of the Transfer of Property Act apart, from other things postulates that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property. It therefore follows that the agreement between the parties by itself does not confer any right, interest in or charge on the suit lands in favour of the petitioner. 9. In the case reported as Dr. Fakir v. Muhammad Major Ameer Muhammad (1982 S.C.M.R. 1178) it was held by the Honourable Supreme Court that it is well settled that in a suit under section 42 of the Specific Relief Act declaration can be sought either regarding the plaintiffs right to any legal character or with regard to any right as to property claimed by him. It was further held that in a suit under section 42 Specific Relief Act, plaintiff is required to ask for all other reliefs open to him. The relevant prayer for consequential relief i.e. specific performance of agreement being not made in the plaint, Supreme Court upheld the dismissal of the suit by the High Court. 10. In Zafar Ahmed v. Mst. Hajran Bibi (1986 Lahore 399) it was held that where plaint revealed that there was a mere agreement to sell, plaintiff could not maintain his suit for declaration on basis of such agreement as it did not create any right, title or interest in property. Only proper mode of redress for plaintiff would be a suit for specific performance of said agreement. 11. In Muhammad Afsar Khan v. Custodian of Evacuee Property (PLD 1981 SC (AJ&K) 79) the view taken was that a person who has contracted to buy land is not owner of any interest in the land and is herefore not entitled to have a decree of title. An agreement to sell does not create any interest in the property and such an agreement even if presumed to be genuine and proved, lacks to create any interest in the property. Same view was re-affirmed in Mst. Resham Jan and others v. Muhammad Latif and another (PLD 1987 SC (AJ&K) 93). 12. On behalf of the petitioner it was contended with vehemence that even though he may not be entitled to a declaration of title as prayed, by reason of doctrine of part performance, he was entitled to protect his possessory rights as envisaged by Section 53-A Transfe of Property Act. Reliance was placed on the observation of late Kayani C.J. in the case of Inayatullah v. Shah Muhammad (PLD 1961 Lahore 372) in which the late Chief Justice observed that section 53-A debars a transferor from enforcing any right against a transferee in possession, but does not prevent a transferee from seeking relief, which must, it its very nature, be by way of defence. Learned Counsel for the petitioner also referred to Muammad Bux v. Ziaullah and others (1983 S.C.M.R. 988) in which the view taken was that Section 53-A does not confer a title on vendee and creates no real right except one of defending possession but merely creates rights of estoppel between proposed transferee and transferor. To my mind the right to protect possession acquired in persuance of an agreement of sale can be against as a shield by way of defence but not by way of claim or assertion adverse to the right of the real owner. In my view both the cases do not advance the case of the petitioner in as much as in the absence of any right or title to property petitioner cannot succeed in asking for a decree for permanent injunction against the respondent. 13. Learned counsel for the petitioner reiving on the provisions of Order VII Rule 7 CPC referred the case otSamar Gul v. Central Government (PLD 1986 SC 35) which re-affirms the well known proposition of law that Court is empowered to grant such relief as justice of case may demand and for determining relief asked for, whole -of the plaint must be looked into, so that substance rather than form should be examined. There is absolutely no cavil with the principles of law enunciated by the Supreme Court, facts of the case in hand do not warrant any interference with the findings of fact by the Court below and decree, the suit for permanent injunction simplicitor. 14. As to the doctrine of part performance as envisaged by Section 53-A Transfer of Property Act, I would refer to Habibur Rehman v. Mst. Wahdania (PLD 1984 SC 424), laying down that no equitable doctrine such as provided in section 53-A Transfer of Property Act 1882 could override specific provisions of Section 49 Registration Act so as to make an unregistered document create title, if same required registration under section 49, Registration Ac. In the reported case purchaser had been put into possession by vendor under unregistered document persuant to an oral agreement to sell under mistaken belief that the transaction was complete, whereas, infact it was incomplete, for want of registration it was held that such purchaser must be regarded to be a purchaser under a contract for sale which was yet to be completed. It was further laid down that such purchaser though could not claim any title as owner in property, whether as a legal or as an equitable owner, yet would have a charge on property for amount paid by him towards purchase of property in question. 15. In somewhat similar circumstances, Lahore High Court in the case reported as Muhammad Hussain v. AsgharAli (1991 M.L.D. 732) found that in a Revision Application arising out of a suit for declaration and permanent injunction, plaintiff did not press for declaration sought for in suit but insisted upon grant of permanent injunction restraining defendant from interfering with his possession, it was observed that prayer for permanent injunction being a consequential relief a declaratory decree was a condition precedent because unless declaration was granted, question of grant of consequential relief would not arise. It was observed that plaintiffs prayer for permanent injunction if allowed, would amount to laying a dangerous precedent authorising one of co-sharers to take forcible possession of any valuable portion of joint property and then file a suit for permanent injunction restraining other co-owner from interfering with his possession thus frustrating the law relating to partition of joint property. 16. In the light of facts and circumstances as well as the case law on the subject, I am of the view that the petitioner is not entitled to a decree for permanent injunction since he did not ask for relief of specific performance. His suit for declaration essentially based on agreement of partnership was completely mis-conceived and not maintainable at law in the circumstances of the case. Strictly speaking, he may not be estopped from seeking relief of specific performance, it is conceded, that this relief has become barred by limitation at the moment. 17. Moreover grant a declaration under section 42 and relief of injunction under section 54 of the Specific Relief Act and exercise of revisional jurisdiction under section 115 Civil Procedure Code being purely discretionary in nature, to my mind, the petitioner is not entitled to any relief in the present proceedings. Consequently this Revision Petition is without any merit and is accordingly dismissed with no order as to costs. (B.T.) Petition dismissed.

PL J 1996 Karachi 177 PL J 1996 Karachi 177 Present: ABDUL MAJID KHANZADA, J. ANWAR ALI ETC--Appellants versus SHARFUDDIN ETC.-Respondents F.R.A. No. 696 of 1986 dismissed on 15.10.1995 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-S. 15-Tenant--Ejectment of-Appeal against-Contention that Applicant/ Respondent alleged that appellants have un-authorisedly occupied store­ room attached with shop, Rent application was not maintainable-Rent case would not have been maintainable to the extent of said godown, but since opponent/appellant denied said position Rent case is maintainable in view of admission of opponent regarding tenancy of entire premises as one unit-Held: Finding of Rent Controller does not call for any interference. [P. 179] A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15--Tenant~Ejectment of-Appeal against-Contention that approval of s'e plan has been withdrawn, Appellants cannot be ejected from premises due to non-execution of agreement by landlord with tenant before its approval-Withdrawal of approval of plan has already been declared as illegal-Since plan is already got approved and work has also been started at site, there can be no doubt in bonafide of landlord in erecting new building in place of old one-Held: Finding of Rent Controller is maintainable. [P. 179&180]B Mr. H.A. Rehmani, Advocate for Appellants. Mr. Munawar Malik, Advocate for Respondents. Date of hearing: 15.10.1996. - judgment This appeal ; s directed against the Order dated 23.8.1986 passed by the VIII Senior Civil Judge and Rent-Controller, Karachi (South) ordering the eviction of the Appellants from the premises consisting of shop and a store-room attached thereto, situated on a plot No. S.B. 1/4, Preedy-Street (Opposite Empress Market), Sardar, Karachi in a Rent Case No. 1808 of 1982, Sharfuddin vs. Anwar Alt and others. 2. Briefly stated the facts which lead to this Appeal are that Respondent late Sharfuddin filed Rent Case No. 1808/82 against Appellants under section 15 of the Sindh Rented Premises Ordinance, 1979, stating therein; that he is owner of shop No. 2 situated over plot No. 4, S.B. 1, Empress Market near Sartaj Hotel, Saddar Karachi, while the Oppenents/appellants are tenant in shop No. 2 at the rate of Rs. 150/-per month but the opponents have also unauthorisedly occupied a godown behind the said shop. He stated that he wants to demolish and reconstruct a building on a new line as the present structure is old and un-economical; and that he has obtained a Site Plan approved from Karachi Building Control Authority on 25.11.81. He further stated that the construction <work has already been started but inspite of promise the Opponents have not vacated the shop in question, due to which the work is suffering. Hence this case. 3. That the Appellants/opponents filed Written-Statement challenging the maintainability of the Application on one hand and on the hand admitting the tenancy. The Appellants denied that they have ever unauthorisedly occupied the store-room behind the shop but they asserted that since the time of their predecessor Shamshuddin the shop and the godown are one unit and in occupation as tenants in the said premises. They disputed the bonafide of the Respondents/landlords regarding demolition and re-construction of new building. They also challenged the validity of the approval of site-plan due to non-execution of agreement by the landlord with the tenants before its approval as per decision of the Building Control Authority, Karachi. In the end it was asserted that they are being ejected by their landlord so that they may sell away the said plot with vacant possession, at an exhorbitant price. They claimed that they are entitled to alternate accommodation and/or to a premises in the new building. 4. That in support of his case landlord Sharfuddin filed his own ffidavit-in-evidence and produced copy of sanction and an approved building plan, while the tenant Anwar Ali filed his affidavit-in-evidence and produced a copy of Issues in Suit No. 762/81, Waty Nathu & Sons vs. Sharfuddin, and a letter from Karachi Building Control Authority, withdrawing approval of building plan of Sharfuddin. 5. That the learned Rent Controller after determining following points in favour of the Respondents/Applicant passed the impugned order, against which this appeal is filed : (1) Whether the application, is maintainable ? (2) Whether the applicant has obtained sanction for reconstruction from the competent Authority ? (3) What should theOrder be ? 6. I have heard learned advocates for both the parties and with their assistance have examined the record. Mr. H.A. Rehmani learned advocate for the appellant argued that the Rent Controller has wrongly decided point No. 1. He contended that since the Applicant/Respondent alleged that the appellants have un-authorisedly occupied the store-room attached with the shop, the Rent Application was not maintainable. In reply to this point Mr. Munawar Malik Advocate for the Applicant/Respondent referred the Written Statement filed by the appellants in the Rent Case, in which they admitted the tenancy and asserted that their predecessor was in occupation of the shop and the godown behind the shop as tenant of the previous landlord and after the death of original tenant they are in occupation of the same premises and they have not occupied any portion of the plot I have applied my mind and also noticed that in cross examination Sharfuddin admitted that about 6-7 years ago the opponents had occupied the said godown un-authorisedly but it is very strange that he did not took any legal action against them, which proves that Sharfuddin has wrongly and falsely asserted the occupation of godown unauthorisedly. In case the opponent would have also admitted the said position, I am of the view that tie Rent Case would not have been maintainable to the extent of the said godown, but since the Opponent/appellant denied the said position, the Rent Case is maintainable in view of the admission of the opponent regarding tenancy of the entire premises as one unit. I am therefore of the view that the application is maintainable, as such the finding of the Rent Controller does not call for any interference. 7. As regards point No, (2) Mr. H.A. Rehmani argued that since the approval of the site plan has been withdrawn, the Appellants can not be ejected from the premises is question due to non-execution of agreement by the landlord with the tenant before its approval. In reply Mr. Munawar Malik argued that the withdrawal of the approval of plan has already been declared as illegal by this Hon'ble High Court in C.P. No. D-116 of 1984 and he has also placed a copy of the Judgment on the record of this appeal. In view of the above position the objection raised by the Appellants has not legal footings. Since the plan is already got approved and the work has also been started at the site, there can be no doubt in the bonafide of the landlord in erecting new building in place of the old one. As such the finding of the Rent Controller is maintained. 8. In view of the above discussion the appeal fails and it is dismissed with no order as to costs. The appellants are given two months time to vacate the premises in question and to put the Respondents in vacant possession of the same subject to the payment of rent. In case the appellants fail to vacate the premises within the said stipulated time, they shall be ejected by the Rent Controller without any notice to them. It is made clear that the Appellants shall be entitled to have the shop from the Respondents, after the proposed building is errected and if the premises are not demolished within six months of the receipt of possession or if the erection of the new building is not commenced within two years of taking over the possession of the premises, the appellants shall be entitled to be put into possession of the disputed premises. (A.P.) Appeal dismissed.

PLJ 1996 Karachi 180 PLJ 1996 Karachi 180 [Larkana Bench] Present: rana bhagwandas, J. SHAH MUHAMMAD-Petitioner versus WAHID BUX and others-Respondents Civil Revision Nos. 20 of 1990 (Sukkur) and 64 of 1994 Sukkur, accepted on 28-11-1995 Civil Procedure Code, 1908 (Act V of 1908)- . —Section 115 read with Limitation Act, Article 142~Suit for ejectment-­Dismissal of-Appeal was also dismissed~Revision to--Respondents having claimed plot as owners cannot take plea of adverse possession which is required to be open, un-interrupted, notorious and hostile to the knowledge of real owner for a period exceeding 12 years-Finding of both Courts below on aspect of limitation is based on misreading and non reading of material evidence on record-Non appearance of respondents as witness is fatal to their defence-Held : Both judgments of Courts below are liable to be struck down which are accordingly set aside. [Pp. 182,183 & 185] A, B & C NLR1994 SCJJ 632, NLR 1988 SCJ 536, ref. NLR1992 SCJ 603, PLD 1991 SC 290 ref. Mr. Sikander Ali Alvi, Advocate for Applicant. Mr. Kanaya Lai P. Nagdev, Advocate for Respondents. Date of hearing: 28-11-1995. In this Revision Application concurrent findings of two Court below — have been assailed arising out of a suit for declaration, possession and mesne profits brought by the applicant. 2. Dispute between the parties relates to a piece of land measuring 1350 square feet out of CS No. 1649/11 situated in Ward "C" Shahdadkot. Case of the applicant before the trial Court is that he purchased CS No. 1649/11 at Shahdadkot of which he sold away 2394 square feet to Muhammad Murad and others on 11.11.1980 whereas respondents are in illegal occupation of portion of the plot measuring 1350 square feet. It is said that the respondents are using this piece of land as a house for the last about 7-8 years illegally and unauthorisedly. Applicant approached them a number of times to vacate the plot in suit and to pay mesne profits at the rate of Rs. 100/- per month but the respondents kept him on false hopes. About one month before the filing of the suit on 29.9.1981 they refused to vacate the plot in suit and to pay mesne profits, hence the suit. 3. Respondents contested the suit and filed a joint written statement claiming that Muhammad Soomar father of respondents I and 3 alongwith the applicant had jointly purchased the city survey number in question in the name of the applicant. It was said that said Muhammad Soomar had paid a sum of Rs. 800/- to the applicant towards the price of the plot in suit, and obtained its possession. It was averred that the applicant had promised to get the record of rights mutated in respect of the plot in suit in the name of father of respondent Nos. 1 and 3, therefore, both these respondents continued to enjoy possession and enjoyment of the plot in suit since before 1962 by themselves and through their deceased father. They pleaded that their father constructed a house over the plot in suit in 1963 by spending a huge amount of Rs. 25,000/- on it without any objection and with the knowledge of the applicant. On these premises respondents asserted their right of prescription by way of adverse possession and raised legal pleas as well which were reflected in the issues settled by the trial Court as under :- ISSUES 1. Whether the plot in suit was purchased jointly by plaintiff and father of defendants No. 1 and 3 ? 2. Whether the plaintiff is entitled to possession ? 3. Whether the plaintiff is entitled to mesne profits ? 4. Whether the suit is time barred ? 5. Whether the suit is under valued ? 6. Whether the suit is bad for mis-joinder of parties ? 7. What should the decree be ? 4. In support of his case, applicant appeared as his own witness and examined Moula Bakhsh PW - 2. On the other hand respondents examined respondent No. 2 Muhammad Budthal and Kaloo DW - 2. 5. On consideration of the evidence on record, learned Ilnd Senior Civil Judge, Larkana held that issue No. 1 was not proved. He answered issue No. 2, 3 and 5 in negative. On issue No. 4, he held that the suit was barred by time. On issue No. 6 he recorded a finding that the suit was bad for non joinder of other legal heirs of deceased Muhammad Soomar. Resultantiy he dismissed the suit with costs. 6. Applicant preferred Civil Appeal No. 22/1988 from the judgment and decree which came up for hearing before an Additional District Judge, Larkana who concurred with the findings recorded by the trial Court and dismissed the appeal. , 7. I have heard learned counsel for the parties and gone through the material on record. It would appear from a narrative of this judgment that the respondents had raised the plea of joint purchase of the city survey number in question in the name of the applicant and the purchase of plot in suit from him for a consideration of Rs. 800/- and claimed to be owners of the plot and construction' of a house thereon in their own rights. No doubt they failed to established their title to the plot in suit and to this extent finding of the trial Court attained finality as it was not challenged before the appellate Court. They sought to justify their stand on this aspect of the case and attempted to show that their predecessor-in-interest deceased Muhammad Soomar had purchased the plot in question from the applicant for a valuable consideration of subsequently went back on his commitment and even after the death of Muhammad Soomar did not honour the agreement of sale. Simultaneously they raised the lea of their possession and occupation of the house constructed on the plot in suit since 1962 and termed their possession as adverse to the right and interest of the applicant. 8. In the peculiar circumstances of the case, I am of the considered view that the respondents having claimed the plot in suit as owners in their own right cannot take the plea of adverse possession which is required to be open, un-interrupted, notorious and hostile to the knowledge of the real owner for a period exceeding 12 years. It is true that both the Courts below have found .that the suit was barred by the period of limitation as prescribed by Article 142 of the Limitation Act, to may mind finding on this aspect of the case is based on misreading and non-reading of material evidence on record which would amount to an illegality within the meaning of the term. Unfortunately both the parties have adduced oral evidence and no document has been produced to establish the date of dis-possession. While application Shah Muhammad conceded that the respondents were in possession of the plot in suit for the last ten years before the filing of the suit, respondent Muhammad Budhal who is the material uncle of respondents 1 and 3 and residing in the house as their licensee dated back the possession of the respondents for the last 24-25 years. He was examined on 9.2.1988. Respondent's witness Kaloo who was examined on the same day, however claimed that the respondents are residing in the disputed house for the last 16 or 17 years. Likewise applicant Shah Muhammad asserted that the respondents are occupying the premises for the last 7 or 8 years and at the most 10 years. His witness PW Mouk Bakhsh in his examination-in-chief stated that the respondents were occupying the disputed premises for the last about 10 years but in his cross-examination, he claimed to know Muhammad Soomar since the time he started residing near the disputed house. He conceded that he is residing in the present house for the last 16 or 17 years. During his further cross-examination, he volunteered to say that Muhammad Soomar was in occupation of the premises for the last 9-10 years. 9. On an over-all assessment of the evidence, I am not inclined to accept the version given by PW Moula Bakhsh who has taken a somersault in making self contradictory statements in relation to the point of time when the respondents came into possession of the premises. Likewise the version given by respondent Muhammad Budhal is highly interested and partisan. His evidence mainly relates to the purchase of plot in suit by Muhammad oomar from the applicant on payment of Rs. 800/-. It is pertinent to observe that the respondents I and 3 who are the sons of deceased Muhammad Soomar and real contestants did not step into the witness box to assert their right, if any. Their non appearance in the witness box is fatal to their defence. Suffice to say finding of fact recorded by the Courts below, on B this point, suffers from inherent infirmity and can not be sustained in law. On the strength of evidence on record, I would conclude that the respondents remained in possession of the plot in suit with construction thereon with the permission and to the knowledge of the applicants for a period much less the statutory period. 10. There is another aspect of the case. Having asserted the right of ownership and possession over the plot in suit in their own rights in may view respondents are debarred from raising the plea of adverse possessions. I am fortified in this view by a judgment of the Honourable Supreme Court in the case of Bahadur v. Muhammad Aslam (NLR 1994 SCJ 632) laying down principle of law that a person who claims possession in his own right cannot take plea of adverse possession. 11. In Bilqees Begum v. Karam Shah (NLR 1988 SCJ 536) Supreme Court of Azad Jamu and Kashmir held as under :- "Adverse possession in our view means holding the land openly in publicity, in one's own right and in disclaimer of the title of true owner. The inference may be drawn by the nature of the possession i.e. the way in which it is being treated and enjoyed by the possessor. An adverse holding is an actual and exclusive appropriation of land commenced and continued under a claim of right. Adverse possession implies that it commenced in wrong and is maintained against right. A person is said to hold the property of another adversely to him, when the latter is, in denial of his title excluded by the former, from the enjoyment of the same. Possession of the wrong-doer, to avail him, must be adverse in its character, importing a denial of the owner's title in the property claimed." 12. Dealing with an identical question in the case of Haji Muhammad Akram v. Dr. Muhammad Iqbal (NLR 1992 SCJ 603) their lordships of the Supreme Court held that if stalling point in claim of adverse possession is relatable to a claim of lawful title as well, then after a fight on basis of permissive possession if that claim is given up or lost, then from that point of time onward only adverse possession would start. In the present case right and title of the respondents to the plot in suit if any, was defeated by the judgment of the trial Court on 29.2.1988 and the starting point for adverse possessions if any would be from this date which is much short of the statutory period for maturing title by prescription. 13. Yet in another case namely Adam Khan v. Mumtaz Khan (1991 SCMR 832) a Full Bench of the Supreme Court observed that when the possession was initially permissive, it can be converted into adverse possession only through an aggressive act by which there should be disclaimer of owner's title of such a character and so open that the real owner must be presumed to know that possession adverse to his dtle is to be established. Nothing but a clear, un-equivocal and notorious disavowal of the title of the owner will render the possession adverse a long continued, possession hostile to him. In other words there should be expressed and open denial of the title of true owner and animus of exclusive ownership. 14. In the case ofMirza Ghulam Hussain and another v. Ch. Iqbal Ahmed (PLD 1991 SC 290) the point at issue was dealt with comprehensively and elaborating the principle of adverse possession Muhammad Afzal Zullah C. J. (as he then was) observed as under :- "Possession is not adverse if it could be referred to a lawful title. It has to be kept in view that one of the most important elements in deciding whether the possession is or is not adverse, is the intention and knowledge of both sides. They have a decisive determining effect. It always depends upon the intention at the start. If the origin of possession is treated by the person subsequently claiming to be in adverse possession, as lawful no adverse possession begins untill the denial of the knowledge of the owner." 15. On behalf of the respondents reliance was placed on a Single Bench judgment of Sindh High Court in the case of Mst. Sarwat Ara v. Mst.Sabra Khatoon (1993 CLC 1682) holding the suit to be time barred. This case has absolutely no bearing on the facts of the present case. A reference was also made to the judgment in the case of Mst. Shah Sultana v. Abdul Khaliq (1987 SCMR 1791) laying down that in a suit for possession, plaintiff must prove dis-possession from immovable property within 12 years preceding the date of suit. There is no cavil with the proposition of law which is even otherwise un-ambiguous on the plain terms of Article 142 of the Limitation Act but the facts of the instant case are altogether different and distinguishable. 16. No other point was convassed at the Bar. Resultantly both the judgments of the Courts below are liable to be struck down. These are accordingly set aside and the suit of the plaintiff decreed as prayed. Applicant shall pay deficit court fee on the amount of mesne profits after the same are calculated. Parties to bear their own costs. (MYFK) Revision accepted.

PL J 1996 Karachi 185 (DB) PL J 1996 Karachi 185 (DB) Present: Abdul Hafeez Memon, ACJ and nazim hussain siddiqui, J. DILAWAR SHAH-Petitioner Versus EXECUTING COURT OF VII SENIOR CIVIL JUDGE and FAMILY JUDGE, KARACHI EAST and 2 others-Respondents C.P. No. D-1372/1995 dismissed on 26-10-1995 Civil Procedure Code, 1908 (Act V of 1908)-- —S. 12(2)-Ex-parte Order-Obtained by fraud and misrepresentation- Challenge to-Contention that executing court was not legally competent to entertain application u/s 12(2) C.P.C. and set aside ex-parte order and r. 13 of W.P. Family Court Rules, 1965, read with Pakistan Family Court Act, 1964 and Guardian and Wards Act, 1870, are applicable- Held : Welfare of minor is paramount consideration—Since the Court in Custody of children, exercises parental jurisdiction, therefore, adherence to techni­calities of law is not proper and justified. Petition dismissed in limine. [P. 188JA&B Mr. M.M. Kazi, Advocate for Petitioner Nemo for Respondent. Date of hearing: 26.10.1995. order Nazir Hussain Siddique, J.-^Petitioner Dilawar Shah has challenged the Orders dated 8-5-1995 and 31-5-1995 passed by the respondents Nos. 1 and 2 respectively. The facts relevant for decision of this Petition are as follows : Deceased Naseeb Rawan, who was the son of the Petitioner, husband of respondent No. 3 Mst. Sardar Begum and father of the minors whose ages are shown against their names i.e. Jamila 14 years, Noor Bibi 11 years, Ajeera Bibi 10 years, Mariana 9 years, Kausar Naz 7 years and wajjad 5 years, had died in an accident on 23-3-1992. He married the respondent No. 3 in the year 1980 and from said wedlock above named minors were born to the respondent No. 3. It is alleged that, during the life time of deceased the respondent No. 3 had developed clandestine relations with the one Rizwanullah, and soon after the death of her husband married him (Rizwanullah). The Petitioner had filed the Application No. 416/1993 for seeking custody of the minors before the respondent No. 1, against the respondent No. 3. It is alleged that the respondent No. 3, inspite of valid service, remained absent, as such, the Application was allwoed by learned III Senior Civil Judge/Family Judge, as per Order dated 17th March, 1994. The Petitioner, thereafter, filed Execution Application No. 1/1994 before respondent No. 1 and in pursuance thereof the custody of three minors namely, Ajeera Bibi, Mariana, and Master Wajjad was handed over to the Petitioner. The execution application, however, still remained pending for securing custody of the remaining three minors, namely Jameela, Noor Bibi, and Kausar Naz. Thereafter the respondent no. 3, in execution proceeding, filed an application under Section 12(2) CPC for setting aside the exparte order, which according to the respondent No. 3 was obtained by fraud and misrepresentation. The respondent No. 1, by order dated 8-5-1995, set aside the exparte order mentinoed earlier and restored the custody of three minors namely, Ajeera Bibi Mariam, and Master Wajjad, to the respondent No. 3, till final disposal of the matter. The Petitioner, challenged this order before respondent No. 2 and his appeal having No. 24/1995 was dismsised by the respondent No. 2, vide order dated 31-5-1995. Both these orders have, now, been impguned in this Petition. The case of the respondent No. 3 is that her husband was an employee of Pakistan Steel Corporation and had died in an accident on the date mentioned earlier. She claimed that, after completing Iddat, she married said Rizwanullah, who is also an employee of siad corporation, as she had no sources to maintian her said six children. According to her, after the death of her husband, her father-in-law Dilawar Shah and his son Bakhte Rawan had taken away all valuable movable properties belonging to her husband, including a Refrigerator etc. She maintained in the year 1992 the service of her husband Rizwanulalh were terminated, as such, he took her and children to his native village in Charsadha. Her husband, however, was reinstated in December, 1994 and thereafter they again started residing in their house at Karachi since January, 1995. She catagoricaly stated that from 1992 to December, 1994 she was in District Charsadha. She stated that, on 29-3-1995 at 2.00 a.m. in the night, the Police forcibly entered in her house and took way minors Ajeera Bibi, Mariam Bibi and Master Wajjad. Mr. M.M. Kazi learned counsel for the Petitioner has assailed the impguend orders purely on technical grounds. He argued that respondent No. 1, as an Executing Court, was not legaly comptent to entertain the application under Order 12(2) CPC, as Rule 13 of West Pakistan Family Curt.Rules, 1965, provided that on sufficient cause being shown the exparte order, or decree could be set aside by the Court on application made to it within 30 days ,of passing of the decree or decision. We may pause here to say that Hon'ble Supreme Court in the case of Mqjor Matioob All Khan vs. Additional District Judge, East Karachi, 1988 SCMR 747 held that said Rule 13, prescribing limitation period of 30 days, was ultra vires the power of rule making authority as statutes provided no time limitation for making application for setting aside an exparte decree passed by a Family Court. Learned counsel also argued that the Executing Court could not go beyond the decree and in any case it was beyond its jurisdiction to set aside the exparte order in question. In order to appreciate the contentions raised on behalf of the Petitioner, we feel it is necessaiy to refer certain provisions of Pakistan Family Court Act, 1964 and that of Guardians & Wards Act, 1890. According to Section 5 of the Family Court Act, the Family Court shall have exclusive jurisdiction to entertain, and adjudicate upon the maters specified in the Schedule. Item No. 5 of the Schedule speaks about "CUSTODY OF CHILDREN". Section 17 of the Family Court Act provides that provisions of the Evidence Act and Code of Civil Procedure, except 10 and 11, shall not apply to proceedings before the FamilyCourt. Section 25 of the said Act provides that Family Court shall be deemed to be a Distrct Court for the purpose of Guardians & Wards Act and notwithstanding anything contained in this Act, shall, in dealing with the matter specified in that Act, follows the procedure prescribed in that Act. Thus, while dealing the question of custody of the minors the procedure prescrbied in that Act. Thus, while dealing the question of custody of the minors the procedure prescribed in Guardians & Wards Act is to be followed and not the procedure contained in Family Court Act. Sections 10, 11, 36, 43, 46 and 48 of the Guardians & Wards Act lay down that the procedure prescirbed in the Code of Civil Procedure shall be followed in respect of these Sections. In the case of Malik Khizar Hayat Tiwana vs. Mst. Zainab Begum & others PLD 1967 S.C. 402, the Hon'ble Supreme Court examined the point of applicability of Civil Procedure Code in the proceedings, initiated under the Guardians & Wards Act. The contention was raised that the provisions of Civil Procedure Code apply ipse vigora to proceedings thereunder by reasoji of the provisions of Section 141 of the Code of Civil Procedure, for the Guardians and Wards Act itself does not prescribe any special procedure but does specify that a Court under the Guardians and Wards Act means the District Court, having jurisdiction to entertain an application under that Act and a Distrct Court has been specifically difined therein as having the same meaning as a Distrcit Court under the Code of Civil Procedure. Against above contention, the argument of hte other side was that where the Legislature intended that the procedure prescribed by the Code of Civil Procedure should" be followed it has expressly mentioned so, but with regard to other matters the statute itself has prescribed its own procedure. Having taken into consideration above arguments the Hon'ble Supreme Court observed as follows: "This argument is not without force. Even if the procedure of the Code can be said to be attracted to proceedings under the Act where no specific provisions has been made in the Act itself that must be under the terms of Section 141 of the Code itself only "as far as it can be made applicable". This clearly indicates that there can be no blind or rigid adherence if the nature of the cause or matter itself gives a contrary indication. Apart from the scheme of the Act itself to which the learned counsel for the respondent has with reason adverted we are also of the view that in a proceeding under the Act the Court should not lose sight of the fact that the overriding consideration is always the welfare of the minor. The Court in such cases is really exercising a parental jurisdiction as if it were in loco parentis to the minor. This is not a jurisdiction, therefore, in which there can, by its veiy nature, be any scope for any undue adherence to the technicalities." The dictum laid down by the Hon'ble Supreme Court in respect of the matters, concerning "CUSTODY OF CHILDREN" is that since the Court in such matters exercises parental jurisdiction, therefore, adherence to the technicalities of law is not proper and justified. Adverting to the contention of the learned counsel for the Petitioner tht Application moved under Sub-section 2 of Section 12 CPC could not be entertained by the Executing Court and it could only be moved to the Court which was passed final judgment, decree or order, it is noted that subject to the provisions of Section 47 CPC, the provisions of Sub-section 2 will apply to determination made in the course of execution proceedings whether they be decree or order. The scope of applicability of Sub-section 2 of Section 12 of CPC with reference to the execution proceedings will be confined to the extent the order passed in execution proceedings. The tenor of the impugned Order dated 8-5-1995 shows that it was passed as Guardian Judge. Once the exparte order was set aside all subsequent orders based upon it, stood vacated, modified, altered in terms of the order, whereby the exparte proceedings were set aside. During the course of arguments, learned counsel for the Petitioner conceded that the Court which passed the impugned order dated 8-5-1995 and the court which was executing it was headed by the same Presiding Officer. It being so, and the paramount consideration being the welfare of the minors, the only question before the respondent No. 1 was that whether sufficient cause was shown for setting aside the exparte order. It is clear from the affidavit of respondent No. 3 that from 1992 to December, 1994 she was not at Karachi, but in the Application No. 416/1993 her address was shown as resident of Karachi. The respondent No. 3, in her affidavit, has alleged that the Petitioner was seeking custody of minor giz-ls not for their welfare, but for selling them in the Tribal Areas of Pakistan. Above two grounds, in our view were sufficient for setting aside the exparte order. Besides, it is an admitted fact that the parties are governed by Suni Muslim Law. The right of custody (Hizanat), exfacie, is that of the mother. This right would continue with the mother unless jt is shown that welfare of the minors demands that their his custody instead of mother be given to some body else. The question of welfare of the minors can be effectively decided only after the evidence is recorded. In the case of Mst. Khundi Devi vs. Ckotey Lai AIR 1922 Allahabad 338 a D.B. of that Court observed as follows :- "The District Judge who exercises a parental jurisdiction in proceedings under the Guardians and Wards Act, cannot be expected to observe the formality and precision of procedure laid down by the Civil Procedure Code to be followed by Court in the trial of ordinary suits. If the order passed by the District Judge is on the whole reasonable, the High Court will refrain from interfering because he had not acted with proper regard to any statute or loss of evidence or the procedure under Civil P.C." Accordingly, we hold that the conclusion drawn in the impugned orders is correct and there is no merit in this petition. On 26-10-1995, after hearing the arguments of learned counsel for the Petitioners, we had dismissed this Petition in limine and these are the reasons for the same. (K.K.F.) Petition dismissed.

PLJ 1996 Karachi 189 PLJ 1996 Karachi 189 Present: HAMID ALI MlRZA, J. MUHAMMAD SHAFI-Appellant versus STATE LIFE INSURANCE CORPORATION OF PAKISTAN-Respondents F.R.A. No. 329 of 1991 dismissed on 5.9.1995 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- --S, 15(2)(iii)(a)--Tenant--Ejectment of--Appeal against-Whether appellant, the original tenant, by his entering into Partnership business with his two brothers created tenancy right/interest of other partners in premises Question of--Appellant in rebuttal has not produced partnership deed to show that no right, title and interest was created in favour of co-partners in respect of tenancy right of premises and it exclusively remained with him- Held: Mere fact that appellant also remained in possession of premises alongwith his co-partners would not mean that there has not been contravention or breach of terms of lease Deed or provisions of section 15(2)(iii)(a). [P. 195]A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 15(2)(iii)(a)--Tenant--Ejectment of-Appeal against-Whether accep­ tance of rent by respondents from appellant after creation of partnership concern from proprietorship concern would amount to waiver of rights of respondents to evict appellant-Question of-Respondents were never nformed by appellant or by co-partners that tenancy of proprietorship concern was changed to partnership concern and at no time request was made to respondents even for change of receipt in name of partnership firm-­ It has also not been denied in cross-examination by appellant that respondents for first time came to know in October, 1986 that partnership was created in place of sole proprietorship concern-Appellant admitted that cheque for month of October, 1986 was sent but it was refused and was returned to appellant on ground that cheque was issued by partnership concern and not by proprietorship concern-Held: There is no waiver or acquiescence on part of respondent. [P. 198] B Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-S. 15(2)(iii)(a)--Tenant-Ejectment of--Appeal against-Whether rent deposited by partnership concern would not amount to due tender by appellant according to law-Question of-It has been admitted by appellant that after refusal of rent by respo dent, appellant did not deposit rent in proprietorship concern-Rent tendered by one of partners of partnership concern would be a rent from business of partnership concern and not from proprietorship concern. Held: Appellant was defaulter under law-Appeal dismissed. [P.200&201] C Mr. Iqbal Kazi, Advocate for Appellant. Mr. Mian Mushtaq Ahmad Advocate, for State Life Insurance Corporation. Date of hearing: 5.9.1995. judgment This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979, directed against the judgment dated 8.5.1991, passed in Rent Case No. 455/1988 (State Life Insurance Corporation of Pakistan vs. Muhammad Shaft) by learned Senior Civil Judge, Court No. VIII & Rent Controller, Karachi (South,) whereby ejectment application, filed by the respondent/landlordwas allowed and the appellant tenant was directed to hand over the possession to the respondent landlord within a period of six months. The brief facts are that the respondent landlord is a hody corporate constituted and established under "The Life Insurance (Nationalisation) Order No. X of 1972" and is owner and landlord of building constructed on the plot of land, bearing No. 5-S. B. 6, Saddar Bazar in the city of Karachi, known as State Life Building no. 5-A, situated at Zaib-un-Nisa Street, Saddar, Karachi, whereas the appellant is the tenant of respondent in respect of Shop No. A, admeasuring 1,330.3 square feet on the ground floor of the said building at the rate of Rs. 350/- per month excluding electricity charges, who has failed to pay rent of the said premises from October, 1986 till February, 1988 and has without the consent of the respondent handed over the possession of the said premises to M/s. N.M. Chhotani, a partnership firm, who has been doing business in the said premises, therefore, the appellant tenant has made himself liable to eviction on the ground of default in the payment of rent and on the ground of sub-letting. The appellant tenant filed his written statement, wherein he denied that he has committed default in the payment of rent and that he has sub-let the premises or has handed over the possession of the premises to M/s N.M. Chhotani, as alleged. It is further stated that M/s N.M. Chhotani is the tenant and there is no change in the tenancy of the shop as alleged, the partnership firm M/s N.M. Chhotani are lawful tenants and are carrying on business therein lawfully to the knowledge of the respondent since 1977. The respondent-landlord filed an affidavit in evidence of Peer Khan, j,. Assistant Manager of the respondent and produced photostat copies of Deed of Lease dated 12.2.1974, executed between the parties, as Ex. A/2, photostat copy of letter dated 9.1.1974, sent to the General Manager of the respondent, as Ex. A/3, letter dated 15.1.1975, addressed to Manager of the respondent, as Ex. A/4, photostat copy of letter dated 1-10-1986, addressed to Manager of the respondent, as Ex. A/5 and photostat copy of cheque No. EAB 651884 dated 1.10.1986 in the sum of Rs. 350/-, as Ex. A/6. The appellant tenantry filed affidavit in evidence of Muhammad Shafi Chhotani and produced letter dated 4.1.1977, addressed to General Manger of respondent, as Ex. 5, registered postal receipt, as Ex. 6, rent receipt dated 8.1.1977 as Ex. 7, letter dated 1.1.1978, addressed to General Manger of respondent, as Ex. 8, 8 rent receipts as Exs. 9 to 16, letter dated March 18, 1985, addressed to appellant tenant, as Ex. 17, 8 rent receipts as Exs. 18 to 25, 12 covering letters •••» addressed to Manager of respondent alongwith the cheques towards the rent, as Exs. 26 to 37, letter dated 21.3.1988, addressed to appellant tenant, as Ex. 38, photostat copy of certificate dated 7.8.1989 of Habib Bank Ltd, as Annexure A, the statements of account from Habib Bank Ltd, as Annexures B-l to B-5, photostat copy of cheque dated 1.10.1986 for the sum of Rs. 350/- , photostat copy of cheque dated 12.11.1986 for the sum of Rs. 350/ ; , photostat copy of letter dated 12.11.1986, addressed to the Manager of the respondent, photostat copy of cheque dated 3.1.1987 for the sum of Rs. 700/-, letter dated 3.1.1987, addressed to the Manager of the respondent, photostat copy of money order coupon for the sum of Rs. 2,100/-dated 13.1.1987, letter dated 15.1.1987, addressed to the Manager of the respondent, postal registered receipt dated 2.1.1987, letter dated 1.2.1987, addressed to the Manager of the respondent, money order coupon for the sum of Rs. 350/- dated 12.11.1986, photostat copy of the payment in Court for the sum of Rs. 2.100/- on 18.2.1987, letter dated 6.3.1984, addressed to the appellant tenant. After recording the above evidence and hearing the counsel, the learned Vlllth Rent Controller & Senior Civil Judge, Karachi (Sought) passed the impugned judgment, against which the present appeal has been preferred. I have heard the learned counsel for the parties and perused the evidence and the case law cited by them. The contention of Mr. Iqbal Kazi, the learned counsel for the appellant is that the learned Rent Controller has erred in holding that the appellant has sub-let the Premises shop, initially let out to him as Muhammad Shafi Chhotani, to a partnership firm M/s N.M. Chhotani and further erred in holding that the appellant tenant has committed default in the payment of rent. The learned counsel for the appellant has gone through the entire evidence on record to show that in the beginning the appellant was leased out the premises shop in his individual capacity as Muhammad Shafi Chhotani as per Ex. A/2, Deed of Lease dated 12.2.1974 and he was being issued rent receipts in the name of M/s N.M. Chhotani and the rent was being paid for the whole year in advance but thereafter in January, 1977, the appellant's proprietorship firm was converted to a partnership concern, whereby his two brothers were inducted as co-partners in the business and he has been paying rent through cheques as partner of M/s N.M. Chhotani and such receipts were being issued in the name of M/s N.M. Chhotani, He further submitted that he paid rent upto April, 1986 as per Ex. 25, thereafter rent for the month of October, 1986, as per Ex. 37, was sent but the cheque was returned as per letter Ex. 38, by the respondent on the ground that the rent was sent by the partnership firm, whereas the premises shop was let out in personal capacity of Muhammad Shafi Chhotani and thereafter the appellant tenant sent the rent from October, 1986 to April, 1987 by cheques but the same was refused, then the rent was sent by money order which too was refused, thereafter the rent was deposited in Court in Misc. Application No. 240/1987 on 18.2.1987 as per photostat copy of rent receipt of Court dated 18-2-1987. He has argued that- the appellant Muhammad Shafi Chhotani is in possession of the premises shop and has not divested himself from possession of the same but his two brothers have joined his partnership business, therefore, the appellant was not liable to be evicted under section 15(2)(iii)(a) of the Rent Ordinance. He contended that ejectment could be ordered only when the tenant has handed over the possession and he himself has left the same but there was no evidence on record that the appellant was not more in possession of premises and that he has put in someone else in possession of the premises who was carrying his business independently. He has placed reliance upon Saeeda Begum vs. Shamim Ahmed (194 SCMR 794), Hafiz Abdul Hameed vs. Nek Muhammad (1994 SCMR 2255 at 2264), Jamil Sons vs. Muhammad Aslam (1992 MLD 1014 at 1018), Abdul Aziz vs. Ahmed (1991 CLC 957), Pakistan Food Manufacturers vs. Sadiq Ishaque (1992 CLC 482 at 491), Caltex Oil Ltd. us., Mst. Yasmeen (PLD 1994 Kar 37) in support of his contention that there has been no breach of section 15(2)(iii)(a) of the Rent Ordinance. He has further contended that the respondent knew from the very beginning that M/s N.M. Chhotani were carrying on partnership business since 1977, therefore, the respondents acquiesced and waived their right whereby they could not agitate the plea that the appellant has assigned the tenancy rights in favour of co-partners. In support of his contention, he has placed reliance upon Tahir Shaft vs. Ahmed A Dama (1985 CLC 993 at 999), Haji Daud Vs. Mst. Rakim Bai and another (PLD ^980 Kar. 126), Ghulam Muhammad Vs. Zia Anwar (PLD 1978 Lah. 1054 at 1060). Learned counsel further argued that the appellant has not assigned or given the tenancy rights in partnership to the co-partner in respect of shop in dispute and the appellant was having exclusive tenancy rights in his favour. The learned counsel in reply has further argued that the respondent has not based his ease on the plea that there has been breach of the terms of Lease Deed (Ex. A/2) or that the appellant tenancy has assigned the tenancy rights in favour of the co­ partners in respect of premises shop but the sole ground, on which ejectment was sought, was that the appellant has handed over the possession, which, on the face of record, has not been proved, therefore, the new plea raised cannot be permitted to be agitated here in appeal. Mr. Mian Mushtaq Ahmed, the learned counsel for the respondent has argued that as. per Ex. A/2, Lease Deed's para 12, the appellant could not assign, under let or part with the actual of legal possession of the said premises or any part thereof without the previous consent in writing of the respondents but the appellant by entering into a partnership with others has assigned the tenancy rights in favour of co-partners, therefore, the appellant committed breach of the terms of the Lease Deed, the period of which, though has expired, would be binding upon him. He has referred to Ex. A/3 letter dated 9.1.1974, addressed to General Manager of the respondents by Muhammad Shafi Chhotani, proprietor for N.M. Chhotani, wherein request was made to issue receipt in his name. The learned counsel also referred to cross-examination of the appellant, whereby he pointed out that initially the appellant was tenant in the personal'capacity as per Ex. A/2 and was a proprietorship concern of N.M. Chhotani, of whose proprietor was Muhammad Shafi Chhotani but subsequently he converted the tenancy in the partnership concern in the name of M/s N.M. Chhotani. He has placed reliance upon Muhammad Subhan and another vs. Mst. Bilquis Begum (1994 SCMR 1507), Manek J. Mobd and another vs. Shah Behram & others (PLD 1974 SC 351), Qadri Brothers Foundary & Workshop vs. Masood Hussain Antria (1991 CLC 1042), Muhammad Saleh Vs. Muhammad Shafi (1982 SCMR 33), Khurshid Ahmed Mukhtar vs. Syed Abdul Qudus and another (1986 MLD 1293) &adMst. Zarina Khawqja vs. Agha Mahboob Shah (PLD 1988 SC 190) in support of his contention. The most important questions for the determination of this appeal are: (i) Whether the appellant, the original tenant, by his entering into partnership business with his two brothers created tenancy right/interest of other partners in the premises ? (ii) Whether acceptance of rent by the respondents from the appellant after the creation of partnership concern from the proprietorship concern would amount to waiver of rights of the respondent to evict the appellant ? (iii) Whether the rent deposited by the partnership concern would not amount to due tender by the appellant according to law? It is admitted position that initially appellant Muhammad Shafi Chhotani was tenant of the respondents as per Ex.A/2. This fact is also corroborated by letters dated 9.1.1974 (Ex. A/3) and letter dated 15.1.1975 (Ex. A/4) which were written by Muhammad Shafi Chhotani, proprietor to the General Manager of the respondents, wherein request was made that rent receipt be issued in his name. The appellant Muhammad Shafi Chhotani in the cross had stated: "It is a fact that I had obtained the shop in the name of my proprietorship concern. It is a fact that I was being issued rent receipt by the application in the name of my proprietorship concern N.M. Chhotani. It is a fact that I had requested through . letter Ex, A/3 dated 9.1.1974 to the State Life Corporation to issue me rent receipt in the name of my proprietorship concern N.M. Chhotani. I have paid my rent to the applicant in the name of N.M. Chhotani proprietor. Thereafter I converted my proprietorship concern into partnership concern on 1.1.1977.1 had not intimated the applicant regarding change of my proprietorship business of N.M. Chhotani into partnership business. The two other partners were introduced are my brothers. Neither any of the introduced partner intimated the State Life Corporation, regarding change of tenancy. It is a fact that from very beginning after 1974 I have been tendering rent in the name of N.M. Chhotani proprietorship concern and I am receiving the receipts in the same name. It is a fact that I did not request the applicant to issue me the receipt in the name of partnership firm. I see Ex. 17, which is a letter from the applicant regarding the payment of rent and discontinuation of bill as per Ex. 17. Even then I did not intimate the applicant about the partnership firm nor I asked them to write the letters in the name of partnership firm. I used to tender the rent by cheque in person. I used to tender the rent on counter/reception. I do not know if the applicant's officials for the first time saw my letter as N.M. Chhotani partnership firm in October, 1986, then they came to know that I have changed my proprietorship business in the partnership business. It is a fact that they returned my cheque for the first'time which was issued'In the name of N.M. Chhotanf partnership firm and thereafter I did not deposit the rent in Misc. Rent Application in the name of N.M. Chhotani proprietorship concern. It is'a fact that we are three equal partners of the assets of firm and the shop." From the above evidence it is proved that the appellant was initially a proprietorship concern but thereafter was changed into partnership concern whereby two of the appellant's brothers were inducted as partners in the concern without permission of the respondents. This fact has not been denied by the appellant himself in his evidence. The only objection of the learned counsel for the appellant is that the appellant Muhammad Shaft Chhotani has not handed over possession of the premises as required by section 15(2)(iii)(a) of the Rent Ordinance, therefore, the appellant cannot be said to have contravened the provisions of Rent Ordinance. Section 15(2)(iii)(a) reads: "The Controller, shall, make an order directing the tenant to put the landlord in possession of the premises within such period as may be specified in the order, if he is satisfied that (iii) the tenant has, without written consent of the landlord (a) handed over possession of the premises to same other persons;" The question would arise whether the appellant after .his entering into partnership concern from the proprietorship concern, any right, title or interest was created in the tenancy in respect of the said .premises in favour of co-partners who could be deemed to be in possession thereof. The appellant in his cross-examination has himself admitted that he did not obtain any permission for change of proprietorship business into partnership business from the respondents and further that they were three equal partners of assets of the partnership firm. All partners will have right, title and interest in the tenancy, good-will of business and assets according to their share unless otherwise provided in the partnership deed. The appellant has himse^ admitted that all partners were equal partners in the assets of the firm. The appellant In rebuttal has not produced partnership deed to show that no right, title and interest was created in favour of co-partners in respect of tenancy right of the said premises and it exclusively remained with him. Mere fact that the appellant also remained in possession of the premises alongwith his co-partners would not mean that there has not been contravention or breach of the terms of Lease Deed Ex. A/2 or provisions of section 15(2)(iii)(a) of the Rent Ordinance. Reference is made to Muhammad Subhan vs. Mst. Bilquis Begum (1994 SCMR 1507 at page 1510), wherein it was observed: "It is well-settled principle that a sole proprietary firm has no legal existence. It is the sole proprietor who is the real person for performance of duties and obligations. If a sole proprietory fijrm is converted into a partnership firm, then its nature and juristic personality is completely changed and the partnership firm stands completely different from the proprietory firm which existed earlier." In para 4 of the judgment it has been further observed: "Once a proprietary firm is changed into a partnership firm, then all the partners have right, title and interest in the tenancy, goodwill, business and asses according to their share unless otherwise provided in the partnership deed." In the instant case the appellant has failed to rebut the evidence of the respondents on the point that the co-partners did not acquire share in the tenancy rights of the premises. The appellant failed to produce even the partnership deed to show if there was any such clause whereby tenancy rights were exclusively to remain with the appellant and co-partners would have no share in the tenancy rights of the premises. Reference is also made to Manek J. Mobed and another vs. Shah Behram and others (PLD 1974 SO 351 at page 365), wherein it was observed: "If a person obtains lease-hold rights in his own name and subsequently assigns them to firm or to a private limited company consisting of family members it cannot be said that no change has taken place in the status of the tenancy or that it is not a case of subletting or assignment of lease hold rights." At page 368 of the judgment it was observed: "Lastly it was urged by Mr. A.K. Brohi that the plaintiff was estopped by conduct from questioning the status of defendant No. 2 as a tenant inasmuch as he had accepted cheques for rent of the Paradise Cinema from defendant No. 2. It was pointed out that cheques were signed by Jehangir J. Mobed as Managing Director of the Paradise Theaters Limited and there were receipts in his hand acknowledging payment of rent There is not force in the contention. Neither defendant No. 1 nor defendant No. 2 served a notice on Mr. Boman Abadan Irani that the latter had entered into possession as sub­ tenant or assignee of lease-hold rights. Formerly cheques for rent were issued by Mr. Jehangir J. Mobed under his signatures. Cheques for rent were now sent by him in his name with the descriptions 'Managing Director, Paradise Theatre Limited. This addition by itself did not constitute notice of subletting to the landlord. Moreover, the relevant condition of tenancy was "without the permission and consent of the landlord in writing". It was ideal on these facts to contend that by mere receipt of cheques signed by Jehangir J. Mobed as Managing Director, Mr. Boman Abadan Irani had waived the . fulfilment of the condition that the tenant will not sublet the Paradise Theatre without the permission and consent in writing of the landlord The doctrine of estoppel had therefore no application in the fact of the case." In the instant case the appellant himself has admitted that the respondents were never informed by him or by the co-partners that tenancy of proprietorship concern was changed to partnership concern and at no time request was made to the respondents even for change of receipt in the name of partnership firm. It has also not been denied in the cross-examination by the appellant that the respondents for the first time came to know in October, 1986 that N.M. Chhotani partnership was created in place of sole proprietorship concern. Reference is also made to Qadri Brothers Foundry Workshop vs. Masood Hussain Antria (1991 CLC 1042 at 1045), wherein it was observed: He also invited my attention to several other documents prevalent on record to urge that the plot in question was let out to an individual whereas it is now occupied by a firm and hence it was a clear case of subletting inasmuch as a firm is different entity than the individual partners. In respect of his contention , he placed reliance on the authorities reported in PLD 1984 SO 351 and PLD 1983 Karachi 168. After hearing the arguments of learned counsel for parties and perusal of the documents referred to above, I am clearly of the opinion that the learned Rent Controller has committed no error in holding it to be a case of subletting for the following reason: The premises, therefore, in being used by a partnership firm since 1980. Therefore, there is clear subletting by the opponent" In view of the evidence adduced by the parties and the case law above discussed it could conveniently be said that the appellant after entering into partnership concern from the proprietorship concern, created right, title and interest in the tenancy of the said premises in favour of co­ partners as well, therefore, the co-partners would be deemed to be in possession of the said premises alongwith the appellant and thereby question No. 1 is hereby answered in the affirmative. So far question No. 2, whether acceptance of rent by the respondent from the appellant after creation of the partnership concern from the proprietorship concern would amount to waiver of rights of the respondents^ from evicting the appellant, the same would be answered hftthe negative. The respondent in the affidavit in evidence has stated that upto .September, 1986, the appellant paid rent of the said premises to him representing himself as proprietor of N.M. Chhotani but on 1st October, 1986, in order to deceive him, the appellant tendered rent of the said premises representing himself as partner of N.M. Chhotani. The appellant in the cross-examination has admitted that neither he nor his co-partners aver intimated the respondent regarding change of proprietorship business of N.^I. Chhotani into partnership business. The appellant also admitted that eyen after the receipt of Ex. 17, the respondents were not intimated about the change of proprietorship concern to the partnership firm. The appellant also did not deny in the cross-examination that the respondents for the first time came to know in October, 1986 about the change of proprietorship into partnership business by the appellant. The appellant also admitted that cheque for the month of October, 1986 was sent but it was refused and ygas returned to the appellant on the ground that the said cheque was issued by the partnership concern and: not^iy_ proprietorship concern of N.M. Chhotani as>per Ex. 38. The above evideft'ee.'ihowi that the respondents were not a aware prior to October 1986 of the fact that th,e said change in respect of the business of the 0 appellant from proprietorship concern to partnership concern has taken place. No satisfactory evidence has been brother on record to rebut the respondent's evidence to show that in spite of the- knowledge of the respondents about the change, the respondent remained quiet and no action was taken against the appellant. Reference is also made to Muhammad Saleh vs. Muhammad Shaft (1982 SCMR 33 at page 39), wherein it was observed: "Residing the above-noted definition and quotation together it is evidence that in order to establish "waiver" by conduct" it must be shown, firstly, that the person entitled to the right and knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to object or to take action due to ignorance of the breach of his right cannot be said to give rise to any "waiver by conduct". "Even otherwise mere inaction or allowing an opportunity to pass by does'not necessarily amount to waiver because when, for instance, a tenant consistently fails to pay rent, being aware of his obligation to pay it or were there is a delay by the landlord in filling an ejectment petition out of decency to the extent or hesitation in going to the Court or for any other reason, the tenant cannot be allowed to take up the plea that the landlord had, by his conduct in failure to tak action, waived bis right to receive the rent It has been held that even gratuitous indulgence shown by one of the parties does not constitute estoppel or waiver. Omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned." In the instant case it would appear that till October, 1986, the respondents were neither aware nor were intimated by the appellant about the change of tenancy from the sole proprietorship to partnership concern. The appellant fias admitted that the respondents were never informed nor were they asked to change the receipt of rent in the name of partnership concern. It is correct that some of cheques have been issued by the appellant as one of the partners of the partnership concern but the same were accepted by the concerned clerk who has to pass on the same for collection in bona fide good faith without knowing the fact that some change in tenancy has taken place which would not itself amount to waiver of acquiescence on the part of the respondents in view of the principles laid down by the Honourable Supreme Court, as reproduced above. Reference is also made to Khunhid Ahmed Mukhtar vs. Syed Abdul Qudus and another (1986 MLD 1293 at page 1295) were it was observed : The fact that the landlord had the knowledge that someone else is in possession of the shop is of little significances, as such the subletting cannot be condoned. The landlord's right to obtain possession of the disputed shop under section 13(2) (iii) is in no way impaired by his acquiescence in the breach of the condition which would under the Transfer of 'Property Act enable him to re-enter the leased premises, what is denied by his waiver in the right of re-entry and not other remedies open to him under the law. I am satisfied that on the facts of this case, the evidence does not disclose that the appellant concerned with the sub-letting in question. The appellant has established the ground of eviction under section 13(2)(ii)(a) with regard to subletting." In view of the aforesaid reasonings and the case law, acceptance of rent by the respondent from the appellant after the creation of partnership concern from the proprietorship concern in the stated circumstances would not amount to waiver or acquiescence on the part of the respondents to seek eviction from the premises under the law. It was also contended by the learned counsel for the appellant that the terms and conditions of the Lease Deed Ex. A/2, after the expiry of its period would not be applicable to the instant case, therefore, the only orovision which would govern the case of subletting would be the provision of section 15(2)(iii)(a) of the Rent Ordinance. The learned counsel has failed to persude me to agree with him, in view of the decision reproduced in Mst. Zarina Khcaaqja vs. Agha Mahbob Shah (PLD 1988 SC 190 at page 192), wherein it was observed: "The obvious reason was that the pre-existing law before the reenactment was kept intact; namely, that the previous tenancy arrangements between the parties will continue to operate notwithstanding the termination of the period and will govern the continuance of tenancy as visulalised in the definition of the tenancy holding over Section 15 of the Sind Law is explicit on this point. Same was the position in the repealed law. Similar would be the case relating to some other situations, for example, the determination of the fair rent Similarly the vice versa position would also be correct The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example. The rate of rent the mode of payment therefor including its advance payment of deposit provision for agreed increase is rent provided it is not after the determination of fair rent provision for re-entry of a tenant after he vacates the premises for re-construction, all covenants which support the conditions in section 15 of the Sind Law and section 13 of the Law repealed by it and similar other conditions and covenants. There is useful discussed on this aspect in the case of Muhammad Yunus Malik v. Mat Zohida Irshad 1980 SCMR 184, The terms of an expired agreement as such continue in operation, to the extent they are not repugnant to the Rent Law. Indeed same would be the position with an , unexpired agreement also." In view of the above decision of HonTjle Supreme Court, the condition under para 12 of the Lease Deed (Ex. A/2) would be applicable and actionable though the said tenancy period has terminated as the said condition being not repugnant to the present provisions of Rent Law. Accordingly the terms under Ex. A/2 and also in case of breach of section 15(2)(iii)(a), the respondents would be entitled to seek eviction of the appellant. Accordingly contention of .the learned counsel for the appellant that eviction could not be ordered for breach of terms under para 12 of Lease Deed Ex. A/2 being new plea as well has no force and merit. The appellant could be evicted for breach of term under para 12 of Ex. A/2 as well as for breach of provisions of section 15(2)(iii)(a) of the Rent Ordinance. The last question, as to whether rent deposited partnership concern would not amount to due tender by the appellant according to law be also answered in the affirmative. It is admitted position that the respondents rented out the said premises to the appellant Muhammad Shafi Chhotani and it was not rented out to the partnership concern where two more persons Were inducted in the partnership concern. It has been admitted by the appellant that after the refusal of rent by the respondent the appellant did not deposit rent in N.M. Chhotani proprietorship concern. The rent tendered by one of the partners of partnership concern would be a rent from the business of partnership concern and not from the proprietorship concern of Muhammad Shafi Chhotani, therefore, the tender of the rent by the appellant in the capacity of one of the partners of M/s. N.M. Chhotani partnership concern would not be due tender according to law from the proprietorship concern. Accordingly rent deposited by the partnership concern in the Court would not amount due tender by the appellant under the law therefore later was defaulter in the payment of rent. Now remains the decisions cited by the learned counsel for the appellant. In Saeeda Begum vs. Shamim (1994 SCMR 791) case, the appellant/landlady had filed ejectment application against the respondent/ .tenant for ejectment on the ground that the respondent/tenant had handed over possession of the tenement to some other person without the written consent of the appellant which application was dismissed by the learned Rent Controller and appeal field before this Court was also dismissed against which Hon'ble Supreme Court was moved, wherein Mr. Fakhurddin G. Ebrahim, learned senior counsel for the appellant had contended that as the appellant has proved the factum that the respondent had inducted one Ali Muhammad S/o Qasim Ali in the suit tenement, the burden of proof stood shifted on the respondent to explain in what capacity said Ali Muhammad was put in possession of the suit tenement, which burden the respondent failed to discharge. Respondent's counsel Mr. Zia Qureshi contended that the respondent had discharged the above burden of proof by producing partnership deed dated. 1.7.1986 and certificate of registration of firm issued by Registrar of Firms indicating respondents and the said Ali Muhammad joint partnership with effect from 1.7.1986 and as per clauses 9,10,11 and " 13(a) of the partnership deed the respondent had not parted with possession of the suit premises and the said Ali Muhammad was his only working and financial partner. It was also further held that if a tenant takes a working partner of financial partners bonafide and retains the physical possession of the premises inasmuch as he sites in it for carrying on business, above provisions will not be attracted. The Hon'ble Supreme Court ultimately remanded the case holding that two Courts below have wrongly held that the respondent had discharged his above burden of proof in rebuttal to the appellant's evidence that respondent has inducted Ali Muhammad into possession of suit tenement. The said case is distinguishable to the facts of the case as there has been no such partnership deed or books of account to show that the co-partners were only working and financial partners in the -f , partnership firm while the tenancy rights of premises exclusively remained with the appellant. In Hafiz Abdul Hameed vs. Nek Muhammad (1984 SCMR 2255 at 2264) case, appellant who was running the business of bakers known as Rabat Bakery in an adjacent shop to the premises in dispute in partnership with his partners. He filed ejectment application against the respondent on the ground that disputed premises were required for the business as accommodation already available was insufficient for his needs and it was held that appellant's/landlord's need of the premises for the firm in which he had only l/3rd share and the partnership firm by itself was not legally entity and the partners constituting the firm occupied the premises jointly for their joint use which occupation would not amount to be in the exclusive use of landlord of the owner. If the occupation or use of a third party is introduced and the premises are partly being used and occupied by such person as well, even joint with the landlord, it will not be covered by this term "own occupation or use". This case is also a distinguishable to the facts of the instant case as in the said case the words "in occupation or use" was held which could not be extended to cover persons who were outsiders not falling within the description of family members. In M/s. Jamil Sons vs. Muhammad Aslam & three others (1992 MLD 1014) case the respondents/landlords filed eviction application against the appellant/tenant on the, ground that the latter had sublet the shop premises to appellant No. 2 but the appellant denied subletting of the shop premises and the respondent could not produce evidence to show parting with of possession by the appellant and that respondent knew that appellant No. 1 was a partnership concern under the name and style of M/s. Pak Tea Company and that the first appellant retained the legal possession and exclusive possession and enjoyment remained with him. The facts of the said case are distinguishable to the facts of the instant case considering that the co-partners acquired as per their share right and interest in the tenancy as well, as deposed by the appellant himself in the cross examination. In Tahir Shaikh vs. Ahmad A. Dada case (1985 CLC 933) the respondent/tenant was not tenant in his individual capacity or as a sole proprietor of Dama Clearing Agencies but Dama Clearing Agencies as a firm were tenants of the appellant/landlord and the rent was being paid by the firm from the very beginning, therefore, the said case is distinguishability to the facts of the instant case. In Haji Dawood vs. Mst. Rahim Bai (PLD 1980 Kar. 126) case, original tenant Samandar Khan was allowed by the original owner Usman Khan to sublet a portion of premises in order to supplement former's income who was suffering from tuberculosis and after the death of Samandar Khan tenancy devolved by operation of law upon the respondent Rahim Bai being his widow and the promises were purchased by Haji Dawood who filed ejectment application against the respondent Rahim Bai on the ground that a shed had been sublet to a person by the respondent and this Court held that as the previous landlord as well as the present appellant allowed the original tenant, husband of present respondent, to sublet the disputed premises, therefore, the appellant waived by his conduct his right regarding eviction on the said count. In the circumstances, the said case is distinguishable to the facts of the instant case. In Ghulam Muhammad and two others vs. Zia Muhammad (PLD 1978 Lah. 1054) case, there was ample evidence on record to show that the respondent/landlord did have the knowledge after the user-of the shop by - the firm at least since 1967 through according to evidence on record firm had been doing its business in the shop since 1961-63 and the respondent had been accepting rent from the firm through out without "any objection for years which was held to amount waiver on the part of the respondent/ landlord and were estopped to turn round and invoke their right which they had abandoned by their conduct and had accepted the firm as their tenant. In the circumstances the said case is distinguishable to the facts of the instant case. In view of the aforesaid reasonings and case law, appeal has no merits which is hereby dismissed. The appellant is directed to hand over the vacant possession of the premises to the respondents within sixty days subject to condition that the rent for the said period would be deposited. (K.K.F.) Appeal dismissed. -sSf

PLJ 1996 Karachi 203g PLJ 1996 Karachi 203g Present: agha rafiq ahmad khan, J. ALI AHMED-AppeUant versus DR. AKHTAR ALI-Respondent F.R.A. No. 585 of 1994 - accepted on 13.8.1995 Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 16(2)--Tenant"E5j ectment of--Struck off~Defence~Challenge to--Appellant was continuously depositing rent in Misc. Rent Case No. 720 of 1988 in the name of respondent prior to tentative rent order passed in Rent case No. 973 of 1993--Appellant instead of depositing rent as per tentative rent order passed in Rent case No. 973 of 1993 continued same in misc. rent case, otherwise there is no default in payment of rent-Held: - appellant has .committed only a technical default and not wilfull-Held further: Tentative rent order is also defective-Appeal allowed. [Pp.205&206]A&B Mr. Mustafa Lakhani Advocate for Appellant. Mr. M. Sadiq Shaikh Advocate for Respondent. Date of hearing: 13.8.1995. judgment This first rent appeal is directed under Section 21of the Sind Rented Premises Ordinance, 1979, against the order dated 12.9.1994, passed by learned Vl-Senior Civil Judge and Rent Controller, Karachi South, in Rent Case No. 973, of 1973, by which he allowed the application under Section 16(2) of the Sind Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance), and struck off the defence of the appellant, by directing" him to hand-over the vacant possession of the premises in question to the respondent within sixty (60) days. 2. The facts 'leading to the filing of the above appeal are that the respondent filed an application under Section 15 of the Ordinance, being Rent Case No. 973 of 1993, for ejectment of the appellant from premises No. 79, Wazir Mansion, Awan-e-Tajarat Road, Karachi on the ground of non payment of rent from January 1988 to May, 1988. The ap ellant filed the written statement and denied the allegation levelled by the respondent in the rent application. On 24.1.1994 the learned Rent Controller, passed a tentative rent order under Section 16(1) of the Ordinance, which reads as under :- "Heard the learned counsel for the parties, and perused the record. From the perusal of pleading of the parties it appears •.. $ that the quantum of rent is not disputed. The opponent has admitted the rate of rent as Rs. 70/- per month as claimed by the applicant Opponent has further stated in written statement that he is regularly depositing rent in M.R.C. No. 720/88 before the Court of learned Vth Senior Civil Judge and Rent Controller, Karachi (South) and has paid the rent till Sept 1993 and afterwards. Applicant is claiming rent since Jan. 1988 there is no dispute about relationship of landlord and tenant between the parties nor about the period of rent or quantum. Application is hereby allowed with nq order as to costs. Opponent is directed to deposit all the arrears of rent subject to adjustment of rent if already deposited in M.R.C. No. 720/88 within 15 days Opponents is further directed to deposit future rent in this case on or before 5th of each calender month. Order accordingly." 4. On 25,5.1995 the respondent filed an application under Section 16(2) of the Ordinance, for striking off the defence of the appellant, stating therein that the appellant did not comply with the tentative rent order by not depositing the rent as directed by the learned Rent Controller in Rent Case No. 973 of 1993. The appellant filed objections/counter-affidavit, stating therein that he was regularly depositing rent in M.R.C. No. 720 at 1988 and has deposited rent upto the date i.e. upto September, 1994. 5. After hearing the paities'counsel the learned Rent Controller allowed the above application and struck off the defence of the appellant, holding that the appellant had not deposited the rent in the present rent case, therefore, his defence was liable to be struck off. 6. Mr. Mustafa Lakhani, learned counsel for appellant has contended that the appellant was depositing rent in M.R.C,No. 720 of 1988 of the same premises continuously and there was no default at aO on the part of the appellant The tentative rent order dated 24.1.1994 is uncertain, vague and indefinite as the said order is silent with regard to the amount of arrears and does not specify the month from which the future rent is to be deposited. Further more it says that future rent is to be deposited before 5th of each calender month, whereas the law is that the rent is to be deposited on or before 10th of each month. According to the learned counsel for appellant this was a technical default, therefore, the learned Rent Controller has wrongly struck off the defence of the appellant He has relief upon the cases of Muhammad Aslam vs. Muhammad Umar and another, reported in PLD 1982 Karachi 107, Anwar Ahmad vs. Muhammad Sharif, reported in 1991 M.L.D. 701, Abdullah Ohanghro and another vs. Mst. Tahira Begum and another, reported in 1988 S.C.M.R. 970, Mst. Rashid Jehan vs. Muhammad Ashraq, reported in 1991 M.L.D. 2619 and the case of Muhammad Ahmad vs. Mr. Qamar Anwar Shaikh reported in 1980 C.L.C. 664. 7. Mr. M. Siddiq Shaikh, learned counsel for respondent has argued that admittedly the appellant has filed to comply with the directions of the learned Rent Controller by not depositing the rent in the rent case, in which the rent order was passed therefore, his defence was rightly struck off. He has relied upon the case of Muhammad Naeem and another vs. M/s Karimi Bidi Works through Partners, reported in 1992 C.L.C. 2499, Major (Retd) A.S.K. Samad vs. Ltd. Col. (Retd) A. Hussain and another, reported ing 1987 S.C.M.R. 1013, Hussain Trading Company, Karachi vs. M/s, Jalal Brothers (Private) Limited, Karachi, reported in 1994 S.C.M.R. 159 and the case of Malik Atnan vs. Khawaja Abdul Aziz through his legal heir, reported in 1987 C.L.C. 425. 8. I have given full consideration to the contentions of the learned counsel for the parties and gone through the R & P as well as the authorities relief on by them. It is an admitted position that the appellant was continuously depositing the rent in Misc. Rent Case No. 720 of 1988 in the name of the respondent prior to the tentative rent order passed in Rent Case No. 973 of 1993. The appellant instead of depositing the rent in this case continued the same in misc. rent case, otherwise there is no default in payment of rent The case reported in 1994 S.C.M.R. 159, relief on by the spondent's counsel in distinguishable from the facts of the resent case as n that case the tenant Was found to have committed default even in misc. rent case by short depositing the rent, whereas in the present case the appellant/tenant has deposited the entire amount of rent in Court in the name of his landlord/respondent. It can be almost, a technical default rather than the willful, as held in the case reported in 1987 S.C.M.R. 1013, which reads as under:- "Leave to appeal against this order was granted by this Court in order to examine the plea raised by the appellant that he was depositing rent in Court regularly in the earlier proceedings between the parties and thus there was no failure on his part to deposit rent in Court; and in any case, the failure, if any was only technical in nature and should not entail the penalty of his eviction from the demised premises." It has also been held in the case reported in 1988 S.C.M.R. 971, which reads as follows :- "Since the petitioners were out of pocket of the amount of rent payable by them which they actually deposited in Court with the intention that the landlord may withdraw the amount, if he so desires, and there is no compliant that the landlord could not do so, petitioners cannot be contemned as guilty of not depositing rent in Court. They had actually deposited tfie rent in Court but made the mistake of depositing in one case and not the other and this amounts to an irregularity rather than penal non-compliance of the order." The tentative rent order passed by learned Rent Controller itself is defective order. It would be pertinent to reproduce the same, which is as under :- "Heard the learned counsel for the parties and perused the record. From the perusal of pleading of the parties it appears that the quantum of rent is not disputed. The opponent has admitted the rate of rent as Rs. 70/- per month as claimed by the applicant. Opponent has further stated in written statement that he s regularly depositing rent in M.R.C. No! 720/88 before the Court of learned Vth Senior Civil Judge and Rent Controller Karachi (South) and has paid the rent till Sept. 1988 there is no' dispute about relationship of landlord and tenant between the parties nor about the period of rent or quantum; Application is hereby allowed with no order as to costs. Opponent is directed to deposit all the arrears of rent subject to adjustment of rent if already deposited in M.R.C. No. 720/88 within 15 days Opponent is further directed to deposit future rent in this case on or before 5th of each calender month. Order accordingly." The above order appears to be vague and indefinite as neither the amount of arrears of rent is shown nor the month from which the future rent is to be deposited, is specified. In the order the tenant was directed to deposit the rent before 5th of each calender month, whereas, under the provisions of Section 16(1) of the Sindh Rented Premises Ordinance, 1979, the future cent, is to be deposited on or before 10th of each calender month. 9. In view of the above authorities of the Honourable Supreme Court and the legal position, I am of the considered opinion that the appellant has committed only a technical default and not wilful, therefore, he cannot be condemned as guilty of not depositing the rent in Court Even otherwise the tentative rent order is also defective as stated above, therefore, for these reasons the appeal is allowed with the result that the impugned order dated 12.9.1994 passed by the learned Rent Controller is set-aside and the case is remanded to the learned Rent Controller for further proceedings according to law. The parties are left to bear their own costs. (K.K.F.) Appeal allowed.

PLJ 1996 Karachi 207 PLJ 1996 Karachi 207 Present: HAMID ALI MlRZA, J. ANIS AHMED and 7 others-Appellants versus M/S HABIB BANK LTD.-Respondent RR.A. No. 753 of 1989, accepted on 10.1.1996. (i) Personal need- —Tenant—Ejectment of--Application for—Dismissal of application-­ Challenge to--Contention that premises in question being commercial, could not be got vacated for residential purpose-It is admitted position that building in question is a residential one and not commercial but a portion of it was leased out to respondent by predecessor-in-interest of appellants, to be used for commercial purposes but it would not alter nature of building-Held : Finding of Rent, Controller on point of personal requirement of appellants is erroneous in law and is based on improper appreciation of evidence or record-Appeal accepted and ejectment ordered. [Pp. 211,212 & 213] A, B, C & D PLD 1985 SC 242 rel. (ii) Personal need- » —Tenant—Ejectment of-Application for—Dismissal of application— Challenge to-Contention that since landlord had demanded enhancement of rent, therefore, personal need could not be said to be based on good faith-It is now settled that demand of higher rent by itself would not negate bonafide requirement of landlord if factum of bonafide requirement is independently proved-Evidence of appellants is consistent with pleadings and testimony could not be shaken in crossexamination-No satisfactory evidence in rebuttal has been adduced by respondent to disbelieve evidence of appellants-There is no requirement of law that person for whose benefit ejectment is sought, must be produced in court to give evidence-Held : Personal requirement of appellants No. 2 to 7 stands proved-- [P. 214] E, P & G 1985 SCMR 1996, 1990 SCMR 544, PLD 1994 Quetta 84, 1992 MID 1109, 1981 SCMR 1081,1981 SCMR 844 and PLD 1989 Kar. 185 rel. Mr. Khalilur Rehman, Advocate for Appellant. Mr. Salman Hamid, Advocate for Respondent. Date of hearing: 31.8.1995. judgment This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) is directed against an order dated 3.10.1989 passed by V Senior Civil Judge and Rent Controller, Karachi-East in a Rent Case No: 66/88, Anis Ahmad and seven others v. M/s. Habib Bank Limited, whereby an ejectment application filed by the appellants/landlords was dismissed hence this appeal. Brief facts of the case are that ground floor tenement having covered area of 2264 sq. ft., constructed on plot No. 7/174, Dehli Mercantile Co­ operative Housing Society, Shaheed-e-Millat Road, Karachi, was rented out to the respondents/tenants by the appellants/landlords at the monthly rent of Rs. 3,750/- as per lease agreement dated 2.6.1985 when the first floor of the building was under use and occupation of appellant No. 1 whereas appellants No. 2 to 7 who were residing at Lahore after winding up their business wanted to shift to Karachi, the first floor premises being even insufficient to cater needs of appellant No. 1 who was residing with his family required the ground floor premises in occupation of appellants in good faith for respondents No. 2, 3 and 4 who wanted to live with their families independently. The respondent's case is that they are in occupation of the ground floor tenement under lease agreement dated 21.4.1976 with an option to renew the lease and the same was renewed from time to time on terms and conditions mutually agreed between the parties and that the original owner Haji Atiq Ahmad expired on 9.4.1983 whose legal heirs as per letter dated 20-4-1983 through their counsel demanded rent and stated that Anis Ahmad was given general power of attorney by them to collect rent of the premises and that as per tenancy agreement dated 2.6.1985 rent of the premises was increased from Rs. 1.200/- to Rs. 3.750/- and the period of the said lease also expired and no fresh lease has been executed so far by the appellants. It has further been stated that the need of the appellants/landlords not based on good faith and that tenement being commercial situated in the commercial area could not be used for the residential purposes and that the appellants as per letters dated 31.7.1986 and 28.2.1987 had made a demand for enhancement of rent by 30% and had promised to execute fresh lease deed but the execution of the fresh lease deed could not be made for want of the mutation of names of the legal heirs of the deceased the original owner in the relevant record. On the pleadings of the parties the Rent Controller settled the following issues: (1) Whether the demised premises is required by the applicants for'their personal bonafide use ? (2) What should the order be ? The appellants/landlords filed affidavit-in-evidence of Anis Ahmad who has produced photostat copies of general power of attorney, photostat copy of agreement of lease. Respondent filed affidavit-in-evidence of Mujtaba Rizvi as attorney who has produced photocopy of agreement to lease Ex. O/10, photocopy of letter written by Shaikh Shahid Ahmad Kamran to the Zonal Chief, Habib Bank Limited, photocopy of letter dated 18.9.1984 to Mr. Sh Shahid Ahmad Kamran, photocopy of general power of attorney, photocopy of undertaking Ex. O/4 dated 2nd June, 1985 from Kamran Motors to the Zonal Chief, Habib Bank Limited, photocopy of letter dated 21.5.1985 of Shahid Ahmad Khan to Senior Vice President, Habib Bank Limited, photocopy of letter dated 9th February 1986 to Zonal Chief, Habib Bank Limited from Kamran Motors, photocopy of letter dated 31.7.1986 from Shahid Ahmad Kamran to Zonal Chief of the respondent, photocopy of letter dated 28.2.1987 from Kamran Motors to the Manager of the respondent photocopy of mutation of the names of the legal heirs of the deceased original owner dated 7.4.1987 issued by Delhi Mercantile Muslim Cooperative Housing Society. ' After recording the above evidence and hearing the learned counsel for the parties, the learned Rent Controller dismissed the ejectment application filed by the appellants/landlords against which FRA No. 753/89 was preferred which was allowed by this Court as per order dated 19.3.1992 and thereby the respondent directed to vacate the premises within two months. Against the said judgment the respondents preferred Civil Petition No. 198-K of 1992 before the Supreme Court of-Pakistan where the judgment of this Court was set aside and the appeal was allowed and case was remanded to this Court for disposal of the FRA No. 753/89 afresh, after taking into consideration the documents which have been exhibited by the learned Rent Controller. I have heard Mr. Khalilur Rehman, learned counsel for the appellants and Mr. Suleman Hamid, learned counsel for the respondents and perused the R & P and have also taken into consideration the photostat copies of documents on record. The contention of learned counsel for the appellants is that the Rent Controller has erred in holding that since the appellant No. 2 as per letter Ex. O/8 had demanded increase in monthly rent for the next three years and in his correspondence with the bank did not ask for the possession of the demised premises for personal requirements therefore the need/requirement of the appellants/landlords could not be said to be in good faith considering that demand in increase of rent at 30% after three years was permissible under the rent laws. He has further contended that the appellants/landlords have proved their need in good faith and appellants' testimony could not be shaken in the cross-examination and no satisfactory rebutting evidence was produced by the respondents/tenants therefore the finding on the issue of personal need of the Rent Controller was erroneous as per evidence as well as in law. He has also contended that learned Rent Controller has erred in holding that because the demised premises were being used as non-residential building/commercial therefore the same cannot be ordered to be vacated for the residential purpose. He has placed reliance upon the cases ofSyed Any ad Alt Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 S.C. 242), Ghulam Hussain v. Mrs. Chaman Sultan Shaft (1980 SCMR 9), Mst. Ahmedunnisa and others v. Mst. Parveen Siraj (1985 SCMR 2012) Bank of Credit & Commerce International (overseas) Limited v. Karachi Tank Terminal Limited and three others (PLD 1988 Kar. 261) and Ghulam Dastagir v. Jumna (1992 MLD 1109) in support of his contentions. Learned counsel for respondents Mr. Salman Hamid has argued that Exs. 0/2, 0/5 to 0/9 would show that the appellants wanted to enhance rate of rent and wanted to execute and agreement for a further period of three years and were having no intention to get the possession of the premises for their personal requirement, therefore, the findings of the Rent Controller on the issue of personal requirement was legal and was based on proper appreciation of evidence on record. He has further argued that the premises being commercial one could not he got vacated for residential use for personal requirement by the appellants. The learned Rent Controller dismissed the ejectment application at the appellants on the ground that if the appellants/ landlords genuinely required the premises in question for their personal use, they would not have asked for the enhancement of rent and would not have asked for the execution of the lease agreement for further three years and further none of the appellants No. 2 to 7 have been examined for whom the premises in question was said to be required in good faith I have already stated that this appeal was allowed by this Court on 19.3.1992 against which judgment the respondents filed Civil Petition No. 19-K/92 before the Supreme Court of Pakistan which was converted into Civil Appeal No. 23-K/1992 and the said'Civil Appeal was allowed as per judgment dated 20th May, 1992 with the observation :-- "The learned Rent Controller after framing the issues, recording evidence and hearing parties, through his aforesaid order dated 3.10.1989 dismissed the respondent's above Rent Case by holding that they failed to prove their , personal bona fide requirement. The above finding was found inter alia on documentary evidence which comprised of certain photocopies of correspondence between the petitioner and the respondents in respect of the suit • tenement. Against the above order of respondent No. 5 aforesaid FRA which has been allowed through the impugned judgment. The learned Judge in chamber has discarded from consideration the above photocopies of documents on the —«C ground that the originals of the same were not produced by the petitioners and, therefore, inadmissible. It seems to be an admitted position that the above photocopies of the documents were exhibited by the learned Rent Controller without any objection form the side of the respondents. In this view of the matter, the ratio decidendi of the judgement of this Court in the case of Ghous uhammad v. United States Agency for International Development, Islamabad (1986 SCMR 903) was applicable. If an objection to formal proof of a document is not raised at the earliest point of time, no such objection can be allowed to be raised at the appellate stage. Reliance was placed in the above judgment on an earlier judgment of this Court in the case of Malik Din and others v. Muhammad Aslam (PLD 1969 SC 136). We are therefore of the view that it will be just and proper to convert the above petition into an appeal and allow the same by setting aside the impugned judgment but would remand the case to the High Court for disposal of the above FRA afresh after taking into consideration the documents which have been exhibited by the learned Rent Controller." The first contention of the learned counsel for appellants is that the Rent Controller has erred in holding that since the appellant No. 2 as per letter dated 31.7.1986 Ex. 0/8 had demanded increase in monthly rent for next three years by 30% making the monthly rent at the rate of Rs. 4,875/- in place of monthly rent of Rs. 3.750/- therefore personal requirement of the appellants/landlords could not be said to be based on good faith. Mere fact that the appellants made demand in the increase of monthly rent would not by itself negate the personal bona fide requirement if factum of bona fide requirement was independently proved. Reference is made to Shamsul Islam Khan v. Pakistan Tourism Development Corporation Ltd. (1985 SCMR _1996) wherein Supreme Court of Pakistan observed : "We have heard both the learned counsel at some length. The desire of landlord to seek the maximum income from his property by itself does not furnish negation of bona fide. In this case it was ignored by the High Co'urt that the landlord had both the options available. Either to seek more income by increase of rent and let the tenant stay or if that does not materialise as it happened, to evict the tenant so as to have the disputed premises for his own hotel which is adjacent to it. There was nothing illegal nor improper about it. Moreover during the hearing the appellant's intention was put to test by offer of manifold increase in rent which was not accepted by him." Reference is made to Nisar Ahmad Khan v. Noor Muhammad Khan and six others (1990 SCMR 544) wherein Supreme Court of Pakistan has observed:-- "We cannot accept the very wide argument vis-a-vis, the demand for. increase of rent, as presented by learned counsel. Such a demand per se can neither be a basis for a finding of mala fides nor such like alleged mala fides, can be the basis for rejection of an application for eviction, in every case. Nothing has been pointed out in this case, so as to demonstrate that the demand of increased rent even if factually made, would make the subsequent demand for eviction on ground of personal requirement, as otherwise than bona fide." Reference is also made to Syed Haq Nawaz v. Mst. Sakina and nine others (PLD 1994 Quetta 84) at page 8 where learned Judge in chamber observed: "At the same time it would be pertinent to notice that mere demand or anxiety for the enhancement of rent by itself does not affect bona fides regarding personal requirement of the premises by landlord." Reference is also made to Ghulam Dastagir v. Jumma (1992 MLD 1109) wherein learned Judge in chamber at page 1115 observed :-- "Syed Inayat Ali contended that the eviction application was filed to pressurize the respondent to charge high rent This contention is devoid of force. In Peerzada Rafiq Ahmad v. Chaudhry Abdul Rehman (1980 SCMR 772) it was held that a demand of higher rent by itself does not cast any doubts about the personal bona fide requirement if the factum of bona fide requirement is independently proved." It is now settled in view of the above decisions that demand of higher rent by itself would not negate the bona fide requirements of the appellants/landlords if factum of bona fide requirement is independently proved. In the instant case the building in question consists of two floors viz. first floor which is in occupation of the appellant No. 1 for his residence while the ground floor of said building was in occupation of the respondents/tenants which was being used as commercial premises as per tenancy agreement dated 21.4.1976. The appellants have sought eviction of the respondents on the ground of personal need of the appellants No. 2 to 7 who will shift from Lahore to Karachi and first floor portion in occupation of the appellant No. 1 was insufficient for the need of the appellants considering the size of the family of the appellants. It has come in evidence that first floor accommodation consists of one dinning room four bed rooms alongwith attachment, where the appellant No. 1, his wife, his four children and Mrs. Hajra Bai have been residing. It has also come in evidence that the appellants No. 2, 3, and 4 are married when the family of appellant No. 1 consists of himself, his wife and his six children while the family of appellant No. 3 consists of himself, his wife and two children. It has also come in evidence that the appellants have no other building where they could accommodate their respective families at Karachi. The respondents have examined Mujtaba Rizvi who has shown his ignorance about the requirements of the appellants in the cross-examination and thereby could not shake the testimony of the appellant No. 1. The evidence of the appellant is consistent with the pleadings and the testimony of the appellant could hot be shaken in the cross examination and no satisfactory evidence in rebuttal has been adduced by the respondents to disbelieve the evidence of the appellants. I have already held that mere demand of enhanced rate of rent would not negate the personal requirement of the appellants. The demand of enhancement of rent was made as per letter dated 31st July, 1986 Ex. 0/8 and eviction application was filed on 31.1.1988, i.e. after about two years. It is possible that during the period of two years there has been change in the need of the appellants whereby the appellants No. 2 to 7 decided to shift from Lahore to Karachi in the circumstances which being better known to them and for which they needed the accommodation in occupation of the respondents. The said need of the appellants cannot be termed to be not based on good faith as the same has not been rebutted by the respondents. The contention of the learned counsel for respondents is that none of the appellants No. 2 to 7 has .been examined to prove their personal requirements in good faith, therefore, it could not be said tat appellants have proved the same. The appellants have examined Anees Ahmad who is the general attorney for rest of the appellants and he has deposed on behalf of the appellants No. 2 to 7 in respect of their bona fide need of the premises in question. There is no requirement of the law that the person for whose benefit ejectment is sought must be produced in Court to give evidence. The evidence of Anees Ahmad is reliable and same could not be shaken in the cross examination by the respondents' counsel and the personal requirement of the appellants No. 2 to 7 stood proved. Reference is made to Zahoor Din v. Mirza Ayub Baig (1981 SCMR 1081) at page 1085 where the Supreme Court of Pakistan has held that there was no requirement in law that the person for whose extra accommodation was needed to be examined as witness. Reference is also made toM. Muhammad Sharif v. M.S. Sultan (1981 SCMR 844) wherein it was held that there is no requirement of law that the person for whose benefit the premises was required to be evicted must be produced in support of eviction application. Reference is also made to Muhammad Salim and another v. Mst. Amatus Saboor and four others (PLD 1989 Kar. 185) wherein learned Judge in chamber observed that there was no requirement of law that the person for whose benefit ejectment was sought must be produced in Court. In the circumstances, the said contention of the learned counsel for appellants has no merit. It would not be out of place to state here that all the photostat copies of documents though have not been exhibited as required by rule 4 of order 13 CPC have been considered by me in view of the order of Supreme Court of Pakistan in this very case and in view of the observations made in case of Mian Tqjammul Hussain and three others v. State Life Insurance of Pakistan (1993 SCMR 1137) at page 1139 and also in the case ofKhursheed Ali and six others v. Shah Nazar (PLD1992 S.C. 822). The last contention of the learned counsel for respondents is that the premises in question being commercial could not be got vacated under the Rent Ordinance for residential purposes for the personal requirement of appellants. I do not find merit in the said contention. It is admitted position that the building in question is a residential one and not commercial but a portion of it was leased out by the predecessorin-interest of the appellants to the respondents to be used for commercial purposes but it would not alter the nature of the hearing. (?) Reference is made to SyedAmjad Ali Shah v. Iqbal Ahmad Farooqi and others (PLD 1985 S.C. 242) wherein it was observed : "Notwithstanding the change in the use of a residential unit to a non-residential unit, with or without the consent of the landlord, it would not amount to the change of character of the building for purpose of eviction under section 13 of West Pakistan Urban Rent Restriction Ordinance, 1959 as from a residential building and the requirement of the landlord (if it is on that basis) would also have to be for residential use. In the absence'of any permission having been obtained from the Controller under section 11 of the Ordinance the house would continue to retain its character as a house notwithstanding its actual use as a commercial unit." No other plea has been raised by the learned counsel for parties. In view of the aforesaid evidence, reasonings and the case law cited, the finding of Rent Controller on the point of personal requirement of the appellants is erroneous in law and is based on improper appreciation of evidence on record, therefore, the same is set aside. Consequently, impugned order is set aside and appeal is allowed with the direction to the respondents/tenants to vacate the premises within a period of 120 days subject to condition that the rent for the said period will be deposited by them. (ZB) Appeal accepted.

PLJ 1996 Karachi 215 PLJ 1996 Karachi 215 Present: rana bhagwan das, J. MUHAMMAD JAFFAR-Appellant versus Syed ZIA-UL-ISLAM SHAH-Respondent F.R.A. No. 52 of 1995 accepted on 11.1.1996 Sind Rented Premises Ordinance 1979 (XVII of 1979)- ~-S. 21-Tenant--Ejectment of~Challenge to-Personal bona fide need-­ Ground of-Admission by respondent that disputed premises are situated in Pugri fetching area, one cannot resist impression that prayer for ejectment of appellant was motivated by circumstance, that after getting same vacated, same may be let out on higher rent and on receipt of handsome amount by way of Pugri--Held: Impugned order cannot be sustained at law-Appeal allowed. [P.217] A Mr. Muhammad Ismail Kassim, Advocate fpr Appellant. Mr. Saeed Ahmed Advocate for Respondent. Date of hearing: 11.1.1996. judgment This appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance) is directed against the eviction order dated 7th December, 1994 passed by learned Controller, Karachi - East directing eviction of the appellant from a shop situated on Plot No. 807-C, PECHS, Karachi on the ground of bonafide personal requirement for the use and occupation of the respondent. 2. It is the case of the respondent that he constructed two shops on ground floor and one residential flat each on the first as well as second floor of the plot in question. He dealt with in import and export business and was sole agent in Pakistan for H & R. Johnson Limited, 'England. He was the Sole Proprietor of the firm named M/Shah and Co. registered with the Chief Controller, Import and Export. Since he had the office of the company at a different place, he let out two shops to two different tenants for business purpose. On 23.7.1977 he left for Saudi Arabia and returned to Pakistan on 20.5.1987. Owing to his absence from Pakistan, his business collapsed and he tried to start a new business but without any success. In 1988 he was operated for both eyes and improved his vision after lapse of more than 1^ year. The respondent had authorised Mirza Farukh Kashyani to act as attorney and to deal his property in his absence. According to him after the vacation of shop No. 1 by the previous tenant, his attorney let out the said shop to appellant. On his return to Pakistan, he came to know about the change of tenancy and the fact that the appellant was misusing the shop for residential purposes. In these circumstances he sought veviction of the appellant for his use and occupation in order to start his business. 3. Appellant contested the prayer and filed a written statement admitting the tenancy of the premises as residential portion since 1978 on a monthly rental of Us. 250/- which was later increased to Rs. 594/-. While denying the personal requirement' of the premises by the respondent he contended that this ground had been connected because the premises has turned to be pugree fetching area and the respondent intended to rent out the same to some one else on receipt of pugree and higher amount of rent. He pladed that a few months before the filing of rent case respondent demanded enhanced rent and in order to pressurize him some time disconnected water supply and electricity to the rented premises. Besides he let out another shop vacated by tenant just before filing the rent case. He added that the respondent has settled his business abroad and has also an office at Karachi where he is carrying on his business. It was further stated that the premises'in dispute are meant for residential purposes and cannot be used as office or for commercial purposes due to short of accommodation. 4. In support of his case, respondent appeared as his own witness whereas the appellant examined himself rebutal. 5. On assessment of evidence on record and after hearing parties counsel, learned Controller by a slipshod order accepted the contention of the respondent and ordered eviction of the appellant which has been impugned in his appeal. 6. Learned counsel for the appellant vehemently but rightly contended that the respondent failed to establish his genuine requirement of the demised premises in good faith and his desire for restarting his business, was motivated by greed and mala fides. It is admitted that the respondent left for Saudi Arabia on 23.7.1977 and returned to Pakistan on 20.5.1987. Although it was asserted in the eviction application that during his absence from Pakistan his business collapsed and he tried to start a new business but could not succeed, there is hardly any evidence in support of this assertion. Likewise it was claimed that in the year 1988 he was operated for his eyes and he regained his clearly vision after more than \ year, there is absolutely no evidence worth consideration to accept this view or the explanation for approaching the Controller after a lapse of about 5 years from his return to Pakistan. 7. It is common ground that the respondent was carrying import and export business under the name and style of Messrs. A.H. Shah and Company registered in the office of Chief Controller of Import and Export with an office in Shaikarpuri Market situated on M.A. Jinnah Road, However he could not explain as to why the said business could not be re­ established in the said office situated in Shikarpuri Market which is the hub of the city for carrying on such commercial activities. During his crossexamination, respondent was constrained to admit that the office of his company at Shikarpuri Market was on rent with him since 1948 till today; where he has been doing his business. It is significant to observe that in his eviction application, purposely he did not mention the availability of this office while in the evidence he did not account for as to why the said office premises on rent with him are not suited to the business intended to be restarted by him. Had the respondent been serious and sincere in reestablishing his old business he ought to have taken steps to restart his business at least by carrying on correspondence with his old clients and sending of necessary statistics of the items of import from the foreign countries as well as renewal of his import licence but he did not seem to be keen for revival of his business. Needless to point out he was obliged to concede that the office premises of Shikarpuri Market has the similar area as that in the disputed premises. 8. There is another aspect of the case tending to indicate lack of bona fides and want of good faith on the part of the respondent. On his own showing disputed premises were let out to the appellant by his attorney Mirza Farooq Kashani after falling vacant in his absence form the country. Mirza Farooq Kashani tenant of the respondent on the first floor of the building in question left the premises admittedly after the return of the respondent from Saudi Arabia. The premises so vacated consist of two bed rooms, drawing room, bath room, one dinning room alongwith lounge and kitchen as admitted by the respondent himself. It is a matter of common knowledge that the property in question is situated in area now considered and well known for commercial activities in P.E.C.H. Society. Quite conveniently, respondent could restart his business in the first floor premises so vacated by Mirza Farooq Kashani as he himself is putting up on the second floor of the said building which would be more suitable to his business and advantageous to his requirements. 9. From the evidence on record and the admission by the respondent that the area where the disputed premises are situated is Pugri fetching area one cannot resist the impression that the prayer for ejectment of the appellant was motivated by the circumstance that after getting the same vacated, the same may be let out on higher rent and on receipt of handsome amount by way of Pugri. Surprising enough, the respondent did not explain in his ejectment application as well as his evidence spread over six pages as to what happened to the first floor premises vacated by his attorney, namely, Mirza Farooq Kashani. In case the premises are still laying vacant, respondent would be within his rights to use the same for restarting is old business or to start a new business which ever be more beneficial to him. However in the event of renting out the said premises to some one else, after his return to Pakistan, he would be guilty of suppression material facts from the court and approaching the Controller with unclean hands. Needless to over-emphasis accommodation on the first floor premises would be double the accommodation with the appellant in as much as on the plot in dispute according to the respondent himself two shops were constructed on the ground floor whereas one flat each was constructed on first as well as second floor on the plot in dispute. 10. On behalf of the respondent^ reliance was placed on Abdul Hussain Khan Muhammad v. Muhammad Younus Khan (1987 C.L.C.. 499 Karachi), in support of his claim to the demised premises for personal requirement but the reported case is of no avail to him in view of entirely distinguishable facts. On the other'hand, appellant relied upon Syed Farzan Rizvi v. Khulilur Rehman (1981 C.L.C. 1223 Karachi) which materially supports his case. 11. In Jehangir Rustam Kakalia v. State Bank of Pakistan (NLR 1993 SCJ 699) the view taken was that landlord has burden to prove bonafides of his personal requirement. Vague and unsatisfactory evidence in proof of personal requirement cannot be made basis for eviction after finding fault with tenant's evidence. 12. For the above facts and circumstances, the impugned order passed cannot be sustained at law. I, therefore, allow this appeal with no order as to costs and set aside the impugned order. (A.P.) Appeal dismissed.

PLJ 1996 Karachi 218 PLJ 1996 Karachi 218 Present: rana bhagwan das, J. MST. AMTUL BEGUM-Appellant versus . JUMA KHAN--Respondent F.R.A. No. 728 of 1991 accepted on 6.2.1996 (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —-S. 21--Tenant- T Ejectment of--Challenge to-Personal bonafide need- Ground of--A landlord who desires bonafide to settle and lodge his married daughter alongwith her husband and children in his property, there is no logical reason to deny this privilege- [P. 222] A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —-S. 21~Tenant-Ejectment of--Challenge to-Personal bonafide need-­ Ground of-High Court is not inclined to agree with proposition that where a married daughter is financially well-off-putting up with her husband and children in rented premises she would not be entitled to avail of property of her father. [P. 222] B (iii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 21--Tenant--E<jectment of--Challenge to-Personal boriafide need-­ Ground of-Apprehension of respondent/tenant that after eviction appellant wanted to make money or earn profit by way of letting out premises for commercial purposes by way otpugri is repelled-Provisions contained in section 15-A provide a remedy to tenant when premises got vacated are not used for purpose for which eviction was sought-Appeal allowed. [Pp. 222 & 223] C Mr. Abul Khair Ansari, Advocate for Appellant. Mr. Muhammad Ismail Paudhiar Advocate for Respondents. Date of hearing: 6.2.1996. judgment Short point involved in this appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred to as the Ordinance) is whether the appellant/landlady is entitled to seek ejectment of the respondent on the ground of requirement of the premises for use and occupation of her married daughter. 2. Respondent is the tenant of the appellant in a portion of the house situated on plot No. 1/7 Commercial Area, Liaquatabad, Karachi on monthly rental of Rs. 125/- payable on or about 5th of each calendar month while the appellant is residing on the upper storey of the house alongwith her husband and-two married daughters Mst. Farida and Mst. Saeeda. 3. Ejectment of the respondent was sought on the ground'that the premises in his occupation in good faith were required for rehabilitating Mst. Hamida Zaheer wife of Iftikhar Hussain and her children as they have been living in a rented house. In the ejectment application it was pleaded that entire structure of the building being veiy old required to be reconstructed for which appellant had obtained approval of building plan for construction from the relevant authorities of the KDA. However since the respondent and other tenants did not vacate the premises she obtained renewal of the approval from the concerned quarters. It was urged that at the time of letting out the premises on rent respondent had undertaken to vacate the same as and when required by the appellant but in spite of repeated requests he failed to vacate the same. 4. Respondent resisted his eviction but admitted the relationship of landlord and tenant as well as rate of rent with the exception that the same was not payable on or before 5th of each calendar month. He denied requirement of the premises for the use and occupation of daughter of the appellant and maintained that after marriage of her daughters they ceased to be her liability and in fact each of her daughters was employed in addition to their husband. Besides the premises in question were let out to him as a shop; it was never used as residential premises nor can it be required for dwelling purpose. He urged that the premises were acquired on payment of pugri and the only motive behind seeking his ejectment is to earn pugri ranging between Rs. 500.000/- to Rs. 600,000/-. Reconstruction of the building as well as obtaining of approval of a building plan was equally denied and disputed. 5. On the pleadings of the parties, learned Controller settled the following issues: (1) Whether ejectment application is not maintainable ? (2) Whether applicant requires demised premises for her own use and use of her daughter ? (3) What should the order be ? 6. In support of her case appellant examined herself and Ali Akbar while respondent examined himself. Both the parties were cross-examined at length and learned Controller (Mr. Muhammad Sagheer Rana) by his judgment dated 22.1.1989 dismissed the prayer for ejectment alongwith two other rent cases brought by the landlady against her other tenants for their eviction from two other shops of the same building. 7. Dismissal order/judgment was challenged in FRA No. 279/1989 which came up for hearing before Saleem Akhtar, (as his Lordship then was) on 25.11.1990 who was pleased to remand the case to the Controller with a direction to records evidence afresh on the issue relating to requirement of the premises for occupation of Mst. Hamida Zaheer. 8. After the remand appellant examined herself, her daughter Hamida Zaheer and her son-in-law Iftikhar Hussain whereas respondent adduced his own evidence. 9. On assessment of the evidence on record learned Controller (Mr. Ghulam Hussain Mallah) by his order dated 1.10.1991 dismissed the eviction application which has been impugned in this judgment. 10. Learned counsel for the appellant contended with vehemence. that the appellant having established requirement of the premises in good faith for use and occupation of her daughter is entitled in law to seek the ejectment of the respondent. In this connection he referred to the evidence of the appellant as well as her daughter and son-in-law to show that Mst. Hamida Zaheer was married about 10 years back and after her Rukhsati she lived for about two years with herself and thereafter she has been residing in a rented house bearing No. 3/93 and paying rent of Rs. 700/- p.m. To the same effect is the evidence of her daughter as well as son-in-law who is serving as Class-I Gazetted Officer in State Bank of Pakistan whereas Mst. Hamida Zaheer working as school teacher. 11. On the other hand evidence furnished by the respondent is to the effect that out of four shops he is in occupation of one shop situated on ground floor of the building in which he has been running electronics business under the name and style of Maqbool Electronics. He has further states that after the marriage Mst. Hamida Zaheer went to live in the house of her husband; that she is not paying monthly rent at Rs. 700/-. Accordingly him neither Mst. Hamida Zaheer nor her husband and children are facing any hardship or financial difficulties as both the spouses are earning members of the family. 12. On scrutiny of evidence on record, it is established that Mst. Hamida Zaheer daughter of the appellant is living in a rented house alongwith her husband and children. The crucial point for determination is whether the appellant is entitled to seek ejectment of the respondent for the eason that the premises are required for the use and occupation of a married daughter. In this connection reference is made to Mst. Anwar Jahan v. Ismail Khan (1984 CLC 2849) in which Ajmal Mian, J. (as his Lordship then was ) took the view that it was incumbent upon the respondent to have brought something on record to explain as to why he had to provide accommodation to his married daughter, her husband and four children. Since no cogent reasons had been shown his Lordship expressed the view that in the absence of any plausible reasons respondent's personal requirement will not include his married daughter, her husband and four children who admittedly were putting up separately after the marriage. 13. On the other hand, there is plethora of case law on the subject that the requirement of the children of the landlord would include the requirement of a married daughter. In Abdul Aziz v. Ali Muhammad (NLR 1979 Civil 321) which is a case under the repealed Ordinance 1959, eviction of the tenant was sought on the ground of personal requirement. Eviction application itself did not disclose that the house was required by landlord for his married daughter. Application itself urged requirement of la's family. It was contended before the Lahore High Court that since it was not urged in the eviction application that the house was required for daughter of landlord eviction application merited dismissal. Learned Single Judge seized of the matter repelled the contention and held that order of ejectment on ground of personal need was not assailable. 14. In Muhammad Din. v. Nazir Ahmed (1982 C.L.C. 1916) Munawar Ali Khan, J. (as he then was) upheld an eviction order seeking ejectment of the tenant for bonafide requirement of premises to settle his daughter and his son-in-law. Learned Judge even went to the extent of observing that statement of son-in-law having been recorded it was immaterial that the daughter had not been examined to corroborate the plea. 15. 16. In Mst. Faridunnisa v. Abdul Hafeez (NLR 1984 U.C. 342) dealing with an identical question, Saeeduzzaman Siddiqui, J (as his Lordship then was) then aside concurrent findings of the Rent Controller as well as appellate authority dismissing eviction application on basis of erroneous view that bonafide requirement of landlady did not include requirement for married daughter of landlady. His Lordships remanded the ase the Controller with a direction to reconsider issue of personal bonaftde requirement, of landlady by keeping in view that word "children" in section 14(3)(a)(i) included married daughter 16. In FRA No. 617/1987 (S. Nisar Haider v. Mst. Razia Sultan) late Qaisar Ahmed Hamidi, J. observed that "having heard the entire evidence minutely dissected by learned counsel on both the sides it is perfectly clear to my mind that the landlady has made out a case for ejectment on ground of personal need, for the occupation of her married daughter". This view was upheld by Hon'ble Supreme Court of Pakistan in Civil Petition for Leave to Appeal No. 56-K of 1989 decided on 15th February, ,1989 in which leave to appeal was refused. ' 17. In the light of aforesaid precedents and even on a plain reading of the provisions relating to bonafide requirement of the premises for use of the landlord and or any of his children it does not sound logical that after the marriage of daughter landlord should be disentitled to seek eviction of a tenant for rehabilitating his married daughter who does not become an out cast or alien to the family of the landlord. In fact under the Muslim Personal Law she is entitled other share by way of inheritance in the property of her father or mother. In case a landlord desires bonafide to settle and lodge his married daughter alongwith her husband and children in his property, I see no logical reasons to deny this privilege. ' 18. Lastly arguments advanced on behalf of the respondent is that neither the daughter nor the son-in-law of the appellant were in distress as both of them are earning members of the family and since they are not facing any financial difficulty, appellant failed to establish his case and was thus not entitled to seek eviction. I am not at all persuaded by the above submission of the learned counsel and at any event not inclined to agree with the proposition that where a married daughter is financially well-off, putting up with her husband and children in rented premises she would not be entitled to avail of her property of her father. 19. As to the nature of the demised premises it may be clarified once for all that though the respondent in his written statement stated that the tenancy was in respect of one out of four shops on the ground floor of the building landlady herself in her eviction application as well as evidence consistently pleaded that respondent is her tenant on the ground floor consisting of three rooms, a kitchen and W.C., etc. The aforesaid version is also supported by appellant's witness Ali Akbar whose evidence was not disputed on this aspect of the case through some questions were suggested to the appellant herself who squarely denied the existence of a shop or godown on the ground floor. Notwithstanding denial by the respondent, I am convinced that the premises can be justifiably used for residential purpose by the daughter of the appellant. 20. Apprehensing of the respondent that after eviction appellant wanted to make money or earn profit by way of letting out the premises for commercial purposes by way afpugri is repelled by the provisions contained in Section 15-A of the Ordinance which provide a remedy to the tenant when the premises got vacated are not used for the purpose for which eviction was sought. In fact section 15-A is an effective deterrent for landlord who after getting the premises vacated for personal use relets same or puts it to use' other than that for personal use. Indeed this provisions has been enacted solely for the protection of a tenant who having regard to lack of adequate accommodation is left at the mercy of the landlord. To my mind it provides safe-guard to a tenant in case a landlord fails to put the premises in his personal use within one year after obtaining possession on the ground of personal requirement. 21. For the aforesaid facts and reasons, impugned order of dismissal cannot be sustained and must be set aside. Accordingly appeal is allowed and order of the Controller is set aside. However, respondent is allowed to vacate the premises within 90 days subject to deposit of rent as before, failing which a writ of possession shall issue without prior notice. (A.P.) Appeal allowed.

PLJ 1996 Karachi 223 PLJ 1996 Karachi 223 [Original Civil Jurisdiction] Present : syed deedar hussain shah, J. MUHAMMAD ASHRAF SOOMRO-Plaintiff versus SINDH LOCAL GOVERNMENT BOARD, through its Chairman, and 4 others-Defendants Suit No. 112 of 1980, dismissed on 16.11.1995. Maintainability- -—Employee of local body-Suit for declaration and permanent injunction by-Whether suit is maintainable-Question of-Held: Plaintiff being employee of a corporation set up under Sindh Local Government Ordinance, 1979, is a civil servant and remedy available to him under law, would be to approach Service Tribunal created under Article 212 of Constitution-Suit dismissed. [P 228] A Mr. Rashid Akhtar, Advocate for Plaintiff. Mr. HimayatAli Pirzada, Advocate for Defendants 1 to 3 (absent). Mr. Manzoor Alt Khan, Advocate for Defendants 4 and 5. Date of hearing: 6.11.1995. 224 Kar .muhammad ashraf soomro v. sindh local Govr. board PLJ (Syed Deedar Hussain Shah, J.) judgment Plaintiff has filed this suit for declaration and permanent injunction against the defendants :- 2. The prayer clause of the plaint is as follows:- "(1) Declare that the appointment of defendant-4 in grade-17 and fixing his seniority in grade-16 with effect from 8.1.1968 is illegal and ultra vires and fixing of defendant-5 in grade-16 with effect from 7.9.1965 is also iHegal and ultra vires. (2) Declare that plaintiff is senior to defendant-4 and 5 as he is holding continuous appointment in grade-16 with effect from 1.5.68 and is confirmed in the same scale of pay prior to defendants 4 and 5. (3) Declare that the orders of defendants 1 & 3 pertaining to defendant-4 and (??) regarding fixing the seniority of defendants-4 and 5 and allowing promotions as such are illegal, malafide, ultra vires and of no legal consequences. (4) Declare that the acts/orders of defendant-1 to 3, doing illegal favours to defendant-4 & 5 are malafide, illegal and of no legal consequences. (5) Grant and issue permanent injunction restraining the defendant-1 & 2 for not denying the plaintiffs legal character rights, status and interest in service as a member of the Sindh Local Council (Engineering Service) for fixing his seniority and promotions." 3. The defendants were served who have filed the written statements. Thereafter issues were framed and evidence was also recorded and matter was fixed for arguments. 4. On 23rd October 1995 matter was fixed for arguments and Court passed the following order:- "Mr. Rasheed Akhtar for plaintiff. Mr. Himayat Ali Pirzada for defendants No. 1 to 3 Mr. Manzoor Ali Khan for defendants No. 4 and 5. According to Mr. Manzoor Ali Khan, the plaintiff has since been retired from service and secondly and amendment is notified by the Government of Sindh whereby suits, appeals or applications relating to the terms and conditions of service of a person holding a post in a corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment) Act 1994 shall abate, for consideration of these legal objections also. By consent the matter is adjourned to 2.11.1995 at 11.00 a.m." 5. On 6.11.1995 arguments of the learned counsel for the parties were heard. Mr. Manzoor All Khan has contended that plaintiff has been retired from services and that since The Sindh Services Tribunals (Amendment) Act, 1994 Sindh Act No. XXXI of 1994 has been notified, therefore, the suit stands abated. He has referred section 3 and the Amendment, so effect is as follows :- "It is hereby enacted as follows :- (1) This Act may be called the Sindh Service Tribunals (Amendment) Act 1994. (2) It shall come into force at once. (3) In the Sind Service Tribunals Act, 1973, hereinafter referred to as the said Act, in section 2, after clause (a) the following new clause shall be inserted : - "(aa) "Corporation" means a Corporation or Institution set up or established by a Provincial enactment." (4) In the said Act, after section 3-D, the following new sections shall be inserted :- "3-E. Employee of a Corporation to be Deemed Civil Servant. Notwithstanding anything contained in any Law, service of Corporation is hereby declared to be the service of the Province and every person holding a post in the Corporation, not being a person who is on deputation to the Corporation shall, for the purpose of this Act, be deemed to be a civil servant." "3-F. Abatement of pending cases of an employee of the Corporation. All suits, appeals or applications relating to terms and conditions of service of a person holding a post in a Corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment) Act, 1994, shall abate." Mr. Manzoor Ali Khan has referred sections 78 (1), 85, 86 and 87 of the Sindh Local Government Ordinance 1979 (Sindh Ordinance No. 12/79) which are reproduced as follows :- "78 (1) There shall be constituted a service known as the Sindh Council Unified Grades comprising such posts in councils in such scales of pay as may, from time to time, be specified. 85. (a) There shall be constituted a Board to be called the Sindh Local Government Board. (2) The Board shall consists of a Chairman, Vice-Chairman and such number of members as may be appointed by Government. (3) The Chairman and Vice-Chairman of the Board shall perform such Junctions and exercise such powers as may be prescribed. 86. (1) The Board shall perform such functions and maintain such funds as may be prescribed. (2) The Board shall with the approval of Government employ such number of employees as may be necessary, on such terms and conditions (and they shall be liable to such disciplinary action and penalties) as may be prescribed. (3) Government may, from time to time, specify that a post in the Board shall be filled by persons belonging to the Sindh Councils Unified Grades or any other service. . 87. The expenditure on the maintenance of the Board shall be borne by the councils by making contribution at such rate as may, from time to time, be fixed by Government." 6. Mr. Rasheed Akhtar for plaintiff has referred section 87 of the Sindh Local Government Ordinance 1979 and has also referred Notification No. SLGB'LCS'CAO/85/81. "NOTIFICATION No. SLGB/L:CS/CAO/85/81--In exercise of the powers conferred by sub-sections (1) and (2) of section 78 and section 103 of the Sind Local Government Ordinance, 1979, the Government of Sindh are pleased to :- (i) constitution a Service known as the Sindh Councils Unified Grades comprising the posts in various Council in the Province and the Sindh Local Government Board mentioned in the Schedule below: (ii) direct that the West Pakistan Local Councils find Municipal Committees Service Rules, 1963 shall as far as possible apply mutatis mutandis to the said service." Mr. Rashid Akhtar has also referred here-to-above Sindh Services Tribunal (Amendment) Act and has stressed that in view of this amendment suit will not abate and he will prefer that suit may be decided on merits. 7. Mr. Manzoor Ali Khan has cited at the bar celebrated reported judgment of the Full Bench of this Court (1) PLD 1981 Karachi 290 Abdul Ban versus Government of Pakistan & 2 others. According to the authority the following questions were referred to the Full Bench by D.B. comprising of learned Chief Justice and Mr. Justice Ajmal Mian (as his Lordship then was):- "(i) Whether the petitions are barred by Article 212 of the Constitution ? (ii) Whether the competent authority can retire a civil servant at any time after his completing 25 years' service or alternately the said power to retire a Civil Servant can be exercised at or about the time when the Civil Servant is due to complete 25 years of service? (iii) Whether the power to retire under section 13 (ii) of the Civil Servants Act (1973) is absolute or is regulated by rules ? 6. After hearing the counsel for the parties the learned Full Bench unanimously felt that intention behind the referring order did not seem to be referred all the petitions for final disposal to the Full Bench but, specified questions of law formulated by the Bench were referred for opinion to them. Accordingly the learned Full Bench refrained the first question so as to read as under :- "(i) Whether petitions under Article 199 of the Constitution seeking to challenge orders of retirement under section 13 (ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution ?" After hearing the learned counsel for the parties the learned Full Bench observed as under :- "17. For the aforesaid reasons, we have come to the conclusion that the answer to the first question referred to us as modified by this Bench is in the affirmative and the petition which'seek, Jf to challenge the orders of retirement under section 13 (ii) of th? Civil Servants Act, 1973 are barred under Article 212 of the Constitution. 18. In view of the aforesaid answer to the first question, it is not necessary to decide the other two questions referred to this Bench. (2) C.P.D. - 1384/95 Syed Tanweer Ahmed Naqvi versus The Administrator, KMC & 2 others. In this matter the learned D.B. of this Court has held as under :- "Even otherwise the petitioner being a civil servant or an employee of a corporation set-up under an Act, the only remedy available to him in law would be to approach the Sindh Services Tribunal as created under the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and thus under the provision of this Article this Court will not exercise jurisdiction in the matter." 9. It would be pertinent to refer the order of appointment of petitioner which reads as follows :- "GOVERNMENT OF WEST PAKISTAN BASIC DEMOCRATIC, SOCIAL WELFARE & LOCAL GOVT. To, The Commissioner, Khairpur Division, Khairpur Memo No. SO (BD-IV) 14/47-66 Dated Lahore the 1st May 1968. SUBJECT:REQUEST FOR MR. MUHAMMAD ASHRAF SOOMRO FOR APPOINTMENT AS ENGINEER IN LOCAL COUNCIL SERVICE Reference your letter No. 5-LCS/68, dated 7.2.1968, dated 7.2.1968 on the subject noted above. Government have approved the appointment of Mr. Muhammad Ashraf Soomro an Engineer in the vacancy that might be available in any local body of your Division. His posting orders may therefore be issued under intimation to the Government and a formal proposal for the relxation of the condition with regard to the qualification prescribed for the post of Engineer if any and the terms and conditions of his appointment may please be sent to the Government for approval. Sd/- K. B. QURESHI Section Officer IX" 10. The Sindh Local Government Board is a creation of Sindh Local Government Ordinance 1979. 11. I have gone through the material placed with the matter and have also minutely considered the provisions of Sindh Local Government Ordinance 1979, Amendment referred here-to-above and the case law cited by Mr. Manzoor Ali Khan. 12. I am of the firm view that petitioner being a civil servant or an employee of a Corporation set up under the Act remedy available to him under the law would be to approach the Sindh Service Tribunal, as created under the Provisions of Article 212 of the Constitution of Islamic Republic of Pakistan 1979. 13. Upshot of the above discussion is that suit stands abated. (Z.B.) Order accordingly

PLJ 1996 Karachi 229 PLJ 1996 Karachi 229 Present: shafi muhammad, J. MUHAMMAD DIN--Appellant versus STATE-Respondent Criminal Appeal No. 257 of 1993 decided on 16th April 1995. (i) Approver-Status of —Status of approver's evidence-Explained [P. 249] K (ii) Criminal Procedure Code, 1898 (V of 1898)— —S. 154-First Information Report-An F.I.R. lodged under section 154 Cr.P.C. containing no details of incident may not be treated as a substantial place of evidence but if it contains name/names of accused and or details of witnesses, then it becomes a substantial piece of evidence-Inspite of its substantiality it does not become a base of conviction although investigation by investigating officer is carried on basis of F.I.R. [P. 237] B (iii) Criminal Procedure Code, 1898 (V of 1898)- —-S. 161~Read with sections 265-C and 265-F and 154 Cr.P.C.-On basis of statement under section 161 Cr.P.C. no accused can be convicted because these statements are not substantive piece of evidence but are (i) to be provided to an accused under section 265-C--Cr.P.C. (ii) so that the JT accused could use those statements for contradicting or testing competency and reliability of witnesses during their examination before — trial court on oath under section 265-F Cr.P.C-- Although information under section 154 Cr.P.C., statement under section 161 Cr.P.C. which are not recorded by police on oath cannot be equated with statements recorded under section 265-F Cr.P.C. by court on oath yet their corroboration with one another possesses great importance. [P. 237] C (iv) Evidence ----Corroboration of Complainant's own statements with F.I.R.—If evidence of complainant against an accused recorded in capacity of a witness by a trial court does not corroborate with his own version, recorded under section 154 Cr.P.C~It may lose sanctity of that witness but it does not necessarily lose sanctity of F.I.R. or prosecution case provided other pieces of evidence prove charges against accused. [P. 238] D (v) Evidence- -—Contradiction in PWs statement—-Appreciation of evidence-—It is imperative that all pieces of evidence should be taken into consideration together with their collective effect. [P. 238] E vi) Interested witness -—Interested witness-meaning in judicial sense-There is no law-to treat every relative to be "an interested witness" if he/she appears as a witness in favour of an accused or against an accused-Term "Interested witness", in its judicial sense have different import than its general sense-If any person appears as witness in favour of an accused or in favour of aggrieved party or in support of state, may be, on account of his/her personal monetary gains, enmity, blood relationship, inducement or for any other interest of his/her own or of anybody else for whom he/she has appeared but witness shall not be called interested witness in judicial sense unless element of interest or favourtism on face of circumstances is evident-If evidence of such witness creates doubts of favourtism in mind of contesting opponents, then such evidence may not be admissible unless corroborated by other pieces of evidence. [P. 239] F (vii) Qanun-e-Shahadat Order, 1984 (10 of 1984) —Art 46(i)--Dying declaration-There is no such law according to which a statement of an injured be recorded in presence of doctor or magistrate or witnesses-Any such statement recorded in absence of any witness may or may not be relied upon by court in light of evidence and circumstances of each case but no illegality takes place if same is recorded by an I.O. in absence of any person because no I.O is supposed to search someone to witness it before recording statement of an injured person who, in his opinion is on death bed. [P. 236] A (viii) Qanun-e-Shahadat Order, 1984 (10 of 1984)- —Evidence-Evidence Act (1 of 1872), Preamble-Subjective and Objective comparison of two enactments—Qanun-e-Shahadat Order, 1984, except with few - exceptions, and the repealed Evidence Act 1872, are subjectively same but objectively they are poles apart-It is an admitted position that all Articles of Order 1984 are substantially and subjectively mere reproductions of all sections of repealed Act-With exceptions of Article 3, Articles 4-6 (with reference to Hadood), addition of Article 44 and addition of a proviso to Article 42 if compared with corresponding sections of the repealed Act-Similarly term "Qanun-e-Shahadat" is only an urdu or Arabic translation of English term "Law of Evidence" thus, replacement of title "The Evidence Act 1972" by a new title "The Qanun-e- Shahadat Order, 1984" was also subjectively same. [P. 239] (3 (ix) Qanuu-e-Shahadat Order, 1984 (10 of 1984)-- —Object of~In preamble, intention or object of introducing Order, was to bring Law of Evidence in conformity with injunction of Islam as laid down in Holy Quran and Sunnah-However, with reference to objects as embodied in preamble it can be said with certainty that interpretation of all articles of Order, after its promulgation, must be done in conformity with injunction of Islam as laid down in Holy Quran and Sunnah instead of adopting old interpretations of repealed Act blindly which had been advanced on basis, of Anglo Saxon principles of Evidence. [P. 240] H (x) Qanun-e-Shahadat Order, 1984 (10 of 1984)- —Article 3—Evidence of relatives against relatives and evidence of relatives in favour of relatives-Explained. [P. 240] I (xi) Qanun-e-Shahadat Order, 1984 (10 of 1984)-- —-Competency of witness in light of Quran-Explained. [Pp. 247 & 248] J Mr. M.A.I. Qarni, Advocate, for Appellant. Mr. Zaheer-ud-din Qureshi, Advocate for State. Date of hearing 13.12.1994. judgment Appellant Muhammad Din son of Abdul Karim was arrested in F.I.R. No. 27/90 registered at P.S. Kalri Karachi (South) on 7.2.1990 at 0230 hours under section 307 PPC (converted into section 302 after the injured died) lodged by Complainant Muhammad Miskeen, tried by learned Vth Additional Sessions Judge Karachi for murdering complainant's brother Abdul Rahim, convicted under Section 302 PPC and sentenced to undergo rigorous imprisonment for life with fine of Rs. 5000/- or R.I. for three years in default of payment of the fine and to pay compensation of Rs. 25.000/- to the legal heirs of the deceased under Section 544-A Cr. P.C. with entitlement of benefit under section 382(B) Cr.P.C. In this appeal, the appellant has assailed the correctness and legality of the conviction and sentence on several grounds to be discussed after the narration of facts. FACTS 2. Prosecution story narrated by complainant Muhammad Miskeen in the FIR and appealing from the evidence reveals that deceased Abdul Rahim son of Imam Din had come from his village Berim Ghali situated in District Abbotabad on 17.1.90 for attending marriage of complainant's daughter. On 6.2.90 he left complainant's house for Machhar Colony to meet his another brother namely, Khalil Muhammad. He was fired upon near Bus Stop at Agra Taj Colony Road Karachi. He immediately came back to complainant's house in injured condition and told the complainant that Muhammad Din son of Abdul Karim had fired upon him. Several other persons were also sitting in the house at that time. The bullet had hit him in his abdomen. Soon after this disclosure injured Abdul Rahim became un-conscious. He was taken to Abbasi Shaheed Hospital in a Taxi by the complainant and his son Shabbir. Charge sheet was submitted under section 307 PPC on 16.2.1990 but on the very next day i.e.. on 17.2.1990, injured succumbed to his injuries. Hence section 302 PPG was also added with section 307 PPC. 3. Before touching the merits of this appeal, I consider it necessary to mention about affidavits of witnesses filed alongwith bail applications because their contents are directly attached with the evidence recorded by the trial Court. (a) One bail application dated 26.6.1990 had been moved alongwith affidavits of Muhammad Miskeen before the trial Court wherein it was stated that "the name of accused Muhammed Din was reported to the police under doubt. (b) Another bail application dated 21.9.1991 was moved alongwith affidavits of Ghulam Shabbir wherein the same thing was repeated. I would like to discuss the main contents of these affidavits at the time of discussing the evidence of witnesses who sworn these affidavits EVIDENCE OF PROSECUTION 4. Seven witnesses examined by the prosecution include I.O., one police constable, one doctor and four relatives closely related to the appellant and the deceased as is clear from the following : P.W. 1 Muhammad Miskeen: Deceased was his younger brother and appellant is the son of his cousin who is son of his phupi. He is son-in-law of P.W. 1. Cousin of the appellant and nephew of deceased. Son of P.W. 1 and son-in-law of deceased. Evidence of these witnesses removed all clouds of doubts which could cover factual aspects of the case as is clear from the following : (a) P.W. 1 namely, Muhammad Miskeen, at the time of lodging FIR narrated that :-' It is thus evident the P.W. 1 had tried to create some doubt at the time of lodging F.I.R. by saying that, (someone had fired upon my brother) but at the same time he also narrated that his injured/deceased brother had disclosed the name of appellant who had fired upon him. Total duration of time taken by the deceased from leaving the house of complainant and coming back to the same house in injured condition was estimated by certain witnesses to be 10/15 minutes. (b) P.W. 4 namely, Ghulam Shabbir is the son of P.W. 1. He was present in the house when the deceased had left their house and came back in injured condition. Relevant portion of his evidence recorded by the trial Court in examination-in-chief runs as under : "When said Abdul Rahim had come to our house he was bleeding from his abdomen and told us tha he had been fired upon by Mohammad Din. Thereafter I nd my father took him in a taxi to Abbasi Shaheed Hospital." vidence of this witness was recorded on 12.10.1992 i.e. after about 32 months but is fully corroborated with the contents of the F.I.R. lodged by his father/complainant Muhammad Miskeen. (c) P.W. 2 namely, Abdul Rashid is son-in-law of complainant. His statement was recorded by the trial Court on 4.8.1992 and on 18.8.1992. He was cross-examined in detail. Relevant portion of his evidence recorded by the trial Court in examination-in-chief runs as under :- "Thereafter he told us that he is going to see his younger brother Muhammad Khalil at Machher Colony and went away. Deceased Abdul Rahim came back after about 15/20 minutes. He had kept his hand on his abdomen and was bleeding. He told us that he has been fired by Muhammad Din. We immediately took him to Abbasi Shaheed Hospital. This evidence was recorded after about 30 months but it fully corroborates with contents of the FIR. It was stated by this witness during his cross-examination, that: "Abdul Rahim became unconscious within few minutes of his arrival after disclosing the name of the assailant as Muhammad Din." (d) P.W. 3 namely, Muhammad Siddique is nephew of the complainant and cousin in appellant Muhammad Din. He reached hospital on hearing about the incident. Relevant evidence of this witness recorded by the trial Court during examination-in-chief reads as under :- "Deceased Abdul Rahim told me that he was fired upon at the hands of accused Muhammad Din." 5. (a) Medico legal officer Dr. Jalil Qadir stated that on 6.2.1990 injured Abdul Rahim was brought by Muhammad Miskeen and oexamination he recorded the following injuries : (1) Fire arm wound left side middle region chest mid axillary line about 1/3 c.m. in Diameter Margins rough inverted, no blackenning singing or tattooing around blood oozing out from wound. (2) Fire arm wound exit right lower region chest anteriorly about half c.m. Margins everted soft tissues bulging out corresponding puncture in shirt seen." According to the report prepared by the doctor, injuries were fresh and inflicted by some fire-arm. Cause of death was stated to be "cardie respiratory failure due to gun shot injury. (b) Thus evidence of the doctor confirmed the act of firing upon the deceased. Report prepared by the doctor shows that only one bullet was fired from the fire-arm used by the assailant. This fact is of great importance because as per prosecution, one revolver and 4 live bullets had also been recovered from the appellant. 6. Evidence of all the witnesses, except of Muhammad Miskeen, during cross-examination remained substantially un-shattered. It is important as well as strange that the defence did not ask any question from the witnesses regarding firing by the appellant. Even, no suggestion was put to the witnesses with reference to disclosure of assailant's name by the deceased. Evidence of P.W. Ghulam Shabbir also proves that so called affidavit of Ghulam Shabbir submitted alongwith first bail application, as referred in para 3 above was a fake document otherwise the defence could put Ghulam Shabbir in hot water with reference to the contents of said affidavits. No question was asked and even no suggestion was put to P.W. Ghulam Shabbir regarding his affidavit during cross-examination. So far as complainant Muhammad Miskeen is concerned, he had avoided to support the prosecution, therefore the defence did not need to ask any question about his affidavit. However, it can be easily estimated that complainant Muhammad Miskeen had intentionally tried to suppress assailant's name by stating in examination-in-chief that: "While going to the house of Khalil, he (means the deceased) was hit by the bullet. He did not tell me that who had fired him. But this lie (as underlined above) was belied by his own version when this witness also stated in his examination in chief that: "My statement was recorded which I had signed. I produce that statement as Ex. 5-A and say it is same correct and bears my signature. I produce the F.I.R. and say its contents are same as those of my statements." It is notable, that Ex. 5-A is a statement under section 154 Cr. P.O. signed by the complainant in English and Ex. 5-B is the F.I.R. lodged by him. No doubt the Complainant stated in cross-examinatioft that his statement and mashirnamas (mean mashirnamas of arrest) were not read over to him but his version that Ex. 5-A is the same, correct and bears his signature fully exposed him that he was not speaking the truth. STATEMENT OF DECEASED 7. The learned counsel for the accused/appellant submitted written arguments before the trial Court which contained reproduction of statements of witnesses under section 161 Cr. P.O. and it made the work of trial Court and appellate Court easier to compare the same with other pieces of evidence on record. These written arguments also contain the statements of deceased which had not been exhibited by the trial Court as well as the contents of FIR which were not legible when the said FJ.R. was produced as Ex. 5-B. The said statement runs as under :- egarding this statement certain points were raised by the defence counsel which can be summarised as under :- (a) Statement was recorded after about 7 days on 13.2.1990. (b) It was not recorded before any doctor, magistrate or witness which is against law and has no legal value. (c) Motive of murder as stated in this statement is different as stated by other witnesses of prosecution. o doubt, this statement was recorded after about seven days and it may not be regarded as dying declaration and certainly it was not treated so even by the trial Court but when the same has not been denied by the defence, then it cannot be easily ignored by any Court especially when its .contents fully corroborate with the contents of F.I.R. and the evidence of otjher witnesses with reference to the appellant's role. It was urged by the learned counsel hat motive of assault, as mentioned by the deceased in his statement is not the same as stated by other witnesses, hence the said statement can be rejected on this ground. I think that it cannot be done so as presumed or urged by the learned counsel because it is an admitted position that no P.W. was present when deceased was fired upon by the appellant. Therefore, no one could say with certainty about the words spoken by or exchanged between the deceased and the appellant accused. It was, thus natural that the(??) motive of the deceased may or may not be the same as presumed by other prosecution witnesses. It was also contended that statement of deceased recorded in absence of doctor or magistrate or witnesses has no legal value in the eyes of law or is against law. This contention is totally misconceived. There is no such law according to which a statement of an injured be recorded in presence of doctor or magistrate or witnesses. Any such statement recorded in absence of any witness may or may not be relied upon by the Court in the light of evidence and circumstances of each case but no illegality takes place if the same is recorded by an 1.0. in absence of any person because no 1.0. is supposed to search someone to witness it before recording statement of an injured person who, in his opinion, is on death bed. Be that as it may, but it was stranger for me to note that no question was asked from the I.O. to shatter his evidence about the deceased's statement regarding disclosure of assailant's name. Even no suggestion was put by the defence to shatter any part of that statement. What may have been asked from the I.O. can be easily estimated from the words spoken by the I.O. and recorded by trial Court as under :- "The statement of deceased when he was injured was recorded by me on 13.2.1990 but I do not remember the time. But it was from 9.00 A.M. to 1.00 P.M.". It is thus evident that defence asked only date and time of recording the statement of deceased. As no question was asked to shatter the existence and the contents of the said statement, hence this part of evidence given by the I.O. i.e. regarding the existence of the statement and its contents, remained totally un-rebutted. The defence could easily shatter this part of evidence, especially when there was none to witness that statement, by suggesting only one question that "no statement was made by the deceased". This suggestion could have shifted the whole burden upon prosecution to prove that statement. Admittedly no question or suggestion was put to the I.O. by the defence, for the reasons best known to the appellant or his counsel, perhaps under an impression that a statement of an injured at death bed has no legal value if it was recorded in absence of a doctor, magistrate or a witness/witnesses. On account of this reason, this part of the evidence, when the same was also not denied by the defence in written arguments, got un-expected importance. SECTIONS 154, 161 & 265-F Cr.P.C. 8. The judgment in question was also assailed by the learned counsel by urging that contents of FIR lodged by the complainant were not supported by him during cross-examination. As much reliance was placed on this point, hence, I consider it necessary to deal the same with some detail. Statement under section 154 Cr. P.C. is nothing but an information by a person in capacity of a complainant. Statement of the same person under section 161 Cr. P.C. is an examination by a police officer who treats the person only a police or prosecution witness. Both these statements are not recorded on oath. But the statement of the witness under section 265-F Cr. P.C. is before the trial Court on oath which is the substantial piece of evidence to prove or reject the case of prosecution. An F.I.R. lodged under section 154 Cr. P.C. containing no details of the incident may not be treated as a substantial piece of evidence but if it contains name of accused and/or details of the incident or/and details of the witnesses, then it becomes a substantial piece of evidence. Inspite of its substantiality it does not become a base of conviction although investigation by Investigating Officer is carried on the basis of the said FIR. All such statements recorded by the I.O./I.Os ' during investigation by examination of witnesses including the complainant are termed statements under section 161 Cr. P.C. On the basis of all these statements and the material collected by the I.O., result of investigation is to be submitted before competent court under section 173 Cr. P.C. provided the accused is not released under section 169 Cr. P.C. Even on the basis of statements under section 161 Cr. P.C. no accused can be convicted because these statements are not the substantive piece of evidence but are (i) to be provided to an accused under section 265-C Cr. P.C. (ii) so that the accused could used those statements for contradicting or testing the competency and reliability of these witnesses during their examination before the trial Court, on oath, under section 265-F Cr. P.C. Although information under section 154 Cr. P.C., statements under section 161 Cr. P.C. which are not recorded by pelice on oath cannot be equated with the statements recorded under section 265-F Cr. P.C. by the Court on oath yet their corroboration with one another possesses great importance. After perusing the persecution evidence before the trial Court on oath minutely and going through the contents of FIR as well as the statements of the witnesses under section 161 Cr. P.C. it is abundantly evident that no substantial contradiction could be brought into light by the defence during cross-examination of P.Ws. Charge against the present appellant regarding firing upon the deceased remained totally un-shattered. So far as the evidence of P.W. 1 namely, Muhammad Miskeen is concerned, he tried to suppress the name of assailant in his examination-inchief unsuccessfully as pointed out in para 4 above. But this aspect could not shatter the foundation of prosecution case. Avoiding to support prosecution case and shaking foundation of prosecution case are two different things. At the most it can be said that complainant in this case did not support the prosecution case or he did not strengthen the foundation of charges against the appellant for the reasons best known to him but, undoubtedly, he had not succeeded to provide any substantial benefit to the appellant on account ^ of this legal position that scope and objects of lodging an FIR under section '% 154 Cr. P.C., recording statement of any witness under section 161 Cr. P.C. and giving evidence before the trial Court under section 265-P Cr. P.C. are totally different from each other. If a person, while appearing as a witness before a trial, does not support the contents of F.I.R. or charge sheet, it cannot become a source to destroy the case of prosecution if the evidence of all other P.Ws, circumstances and other pieces of evidence prove the charges against the accused. In the case of present appellant, the complainant played the same role but unsuccessfully as discussed in the foregoing paragraph because all other pieces of prosecution evidence 1 ft no shadow of doubt about the appellant to be guilty of an offence of murdering his relative Abdul Rahim. I have least hesitation in may mind to hold that if the evidence of ._ complainant against an accused recorded in capacity of a witness by a trial D Court does not corroborate with his own version recorded under section 154 Cr. P.C., it may lose the sanctity of that wit less but it does not necessarily lose the sanctity of the F.I.R. or the prosecution case provided other pieces of evidence prove charges against the accused. contradictions 10 In criminal cases it has become a routine to search out as mary contradictions as possible from the evidence under this presumption and impression that such contradictions can be effective weapons for smashing every prosecution case against an accused. No doubt, certain contradictions can cause fatal blow to the prosecution story but each and every type of contradiction cannot have any such effect or to be treated too sufficient to uproot charges against an accused. For example, in the case of present appellant it was pointed out that according to the prosecution, accused was _ __ arrested in presence of complainant Muhammad Miskeen but the complainant denied this fact in his statement before the Court. No doubt it is a contradiction but it has no significance as it does not have any effect on the reality of firing by the appellant upon the deceased. Similarly it was claimed by the prosecution that revolver used by the appellant was recovered from him in presence of complainant but the complainant stated on oath that nothing was recovered in his presence. This contradiction could be fatal to the case of prosecution if P.W. Muhammad Ashraf, second mashir of recovery, had not been examined. Reality of his being police-constable does __ not necessarily make his evidence doubtfui especfatty when the defence did not ask any question and even did not put a suggestion to this witness that "nothing was recorded from the appellant in his presence or "the appellant had himself appeared at the police station" or he (means the witness) was deposing falsely under the influence of his superior who was working as an I.O. of the case. In absence of any such suggestion the trial Court was fully justified to believe prosecution evidence on recovery of weapon. Same is the position of all other so-called contradictions pointed out by the learned counsel and none of the same could create cleavage in the established reality of firing by the appellant upon the deceased. For the propose of safe administration of criminal justice as well as to secure the ends of justice, it u imperative that all pieces evidence should be taken into consideration ' together with their collective effect. On account of this basic principle, evidence of P.W. Muhammad Miskeen cannot be taken into consideration in isolation from the evidence of other P.Ws. EVIDENCE OF RELATIVES. 11. An impression has deepened its roots in the fields of criminology during the last so many years that evidence of witnesses closely related to aggrieved partly should not relied upon. Such witnesses are usually termed as interested witnesses. In the appeal in hand, the impugned judgment of the trial Court was also assailed on the same ground i.e., witnesses examined by the prosecution were close relative of deceased, hence they were interested witnesses and could not be relied upon. No doubt, out of seven prosecution witnesses examined by the prosecution four were close, rather closest, relatives of the deceased but they had the same blood-relation with the appellant too as stated in para 4 above. Therefore, their evidence cannot be ignored on account of their being close " relatives of the murdered as well as of this murderer. Moreover, there is no law to treat every relative to be "an interested witness" if he/she appears as a witness in favour of an accused or against an accused. The term "Interested witness", in its judicial sense, has different import than its general sense. If any person appears as witness in favour of an accused or in favour of aggrieved party or in support of the State, may be, on account of his/her personal monetary gains, enmity, blood-relationship, inducement or for any 3" other interest of his/her own or of anybody else from whom he/she has appeared but the said witness shall not be called interested witness in judicial sense unless element of interest or favourtism on the face of circumstances is evident. If evidence of such witness creates doubts of favourtism in the mind of contesting opponents, then such evidence may not be admissible unless corroborated by other pieces of evidence. Moreover, I think that concept of interested witnesses as was embodied in the repealed Evidence Act, 1872 (hereinafter referred to as the Act or the repealed Act) appears to have been changed after the promulgation of The Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the Order, 1984 or the said order. It can be said by the learned advocates that apparently there is no difference between the repeal d Act and the Order, 1984 but I have certain reservations regarding such claim and the same are being discussed in the forth coming paragraphs. 12. According to my point of view, the Qanun-e-Shahadat Order 1984, except with few exceptions, and the repealed Evidence Act 1872, r ubjectively the same but objectively they are poles apart. It is an admitted position that all Articles of the Order 1984 are substantially and subjectively mere reproduction of all Sections of the repealed Act with exceptions of Article 3, Articles 4-6 (with reference to Hadood), addition of Article 44 and addition of a provision to Article 42 if compared with corresponding sections of the repealed Act. Similarly the term "Qanun-e-Shahadat" is only an Urdu or Arabic translation of English term "Law of Evidence". Thus replacement of title "The Evidence Act 1872" by a new title "The Qanun-e-Shahadat Order 1984" was also subjectively the same. It can be safely said that Zia's Martial Law's Regime's legislators possessed specific politically influenced sub­ continental or Indian Brand Islamic approach for slogan-dressed Islamization especially to tell people of the sub-continent that they were the real champions of Islam. But the approach of their championship for Islam needs no comments after looking into this reality that they did not like to substitute the words "Pakistan, Arabia Mekkeh orMadina in place of words Europe or London, which are still existing in the Order, 1984 although names of cities such as Peshawar, Karachi, Lahore, Faisalabad and Multan were or had already been substituted in place of Calcutta, Bombay, Agra or Delhi (Reference can be made to illustrations of Articles 23, 46, 61 and 149 of the Order). 13. Notwithstanding to the above-mentioned mental attachment of the legislators of Martial Law Regime with Europe or London, perhaps due to their more than 125 years old slaved mentality or cordial relations with old masters of U.K. the judges of the Superior Courts can deduce something good and appreciable out of the said Order, 1984. As a result of search of such emblem and destination, it was found that the Qanun-e-Shahadat Order 1984 was objectively totally different from the repealed Evidence Act. The object of the Qanun-e-Shahadat Order is evident from its preamble which had never been the object of the repealed Evidence Act. With reference to the preamble intention or object of introducing the said Order, as stated therein, was to bring the Law of Evidence in conformity with the Injunction of Islam as laid down in the Holy Quran and Sunnah. Whether the legislature had worked with cordiality to achieve that aim or not, it can be easily ascertained after going through the Order and the Act which are subjectively the same as pointed out in the above paragraphs. However, with reference to the objects as embodied in the preamble it can be said with certainty that interpretation of ally Articles of the Order, after its promulgation, must be done in conformity with the injunction of Islam as laid down in the Holy Quran and Sunnah instead of adopting old interpretations of the repealed Act blindly which had been advanced on the basis of Anglo Saxon principles of Evidence. 14. It may be interesting to point out that basic principles of "Law of Evidence" seem to be basically similar throughout the world as is clear from the following. (a) The LawsofManu (Sacred Books offlie East) Noh-muslims in India not only consider but also claim that the Laws of Manu include translations of the most important works of the seven nonchristian religions viz. Hinduism, Buddhism, Jainism, Zoroastrianism, Islam and two main indigenous systems of China. The relevant sections from its Chapter VIII (Civil and Criminal Law) run as under:- "Section 62: Householders, men with male issue, and indigenous (Inhabitants of the Country, be they) Kshatriyas, Vaisyas, or Sudras, are competent, when called by a suitor, to give evidence, not any persons whatever (their condition may be) except in cases of urgency. Section 64: Those must not be made (witnesses) who have an interest in the suit, nor familiar (friends), companions, and enemies (of the parties), nor (men) formerly convicted (of perjury), nor (persons) suffering under (severe) illness, nor (those) tainted (by mortal sin). Section 66. Nor one wholly dependent, nor one of bad fame, nor a Dasyu, nor one who follows forbidden occupations, nor an aged (men) nor an infant, nor one (man alone) nor a man of the lowest castes, nor one deficient in organs of sense." Although basic qualifications of witnesses in the above sections appear to be the same as are found in the Holy Quran and Ahadith of the Holy Prophet (Peace be upon him) as would be discussed later on, yet collective effect of chapter VIII of the Laws of Manu shows that influence of caste-system could not- be washed away from that society. Contrary to this aspect Islamic system of Justice has no scope for caste-system in it although several person claiming to be descendant of the Holy Prophet (Peace be upon him) claimer consider themselves to be superior than others. (b) Old Testament and New Testament According to the Old Testament (claimed to be Taurat) God is Himself Witness and is the Supreme Witness (Reference can be made to John 1:6-9 and Job 16:8 & 19). Therefore, it is considered that witness of men, after taking oath should appear as witness to God. However, in every age we find that lilsiy people appeared even against the Prophets at the instance of crual rulers and sectarians to give false statement or evidence „- against the Prophets. Like the Old Testament, the New Testament (claimed to be Injeel) condemns false witness. The trial of Jesus is the best examples to show the character of those witnesses (MATTHEW 26:56-65). Law of Evidence in the Holy Bible is as under. From Old Testament "A truthful witness gives honest testimony but false witness tells lies (Proverb 12:17) "A false witness mil not go unpunished and he who pours out lies will perish (Proverb 19:9) Except the general or universal principles of evidence, as quoted above, I could not find anything specifically on the point of admissibility or inadmissibility of svidence of close relatives appearing against or in favour of relatives. In the light of above mentioned position, it is interesting to point out that in England, Husbands and wives were considered to be incompetent witnesses to give evidence in favour of each other till the middle of 19th century. This concept was totally similar to the views of the "Hanifiss" in Islamic World but it was changed later on. On' 1st Septembers 1872, when the Rulers of Sub-Continent introduced the Evidence Act, it contained Section 120 which runs as under: "Section 120: In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness." Thus, the new concept under section 120 of the repealed Act was similar to the views of the Shias and "Shafiss". On 26th October 1984, when the Evidence Act was repealed and the Qanun-e-Shahadat Order, 1984 was promulgated, Section 120 of the repealed Act was not reproduced in the Order 1984. Omitting Section 120 of the repealed Act in the Order 1984 was not meaningless. It can be presumed that either the drafters of the Order 1984 basically belonged to the Sunnis Sect therefore, they considered it necessary to omit the said section from being introduced in the Order 1984 or they themselves were not definite about the exact scope of evidence of husband in favour of his wife or viceversa. However, second presumption seems to be more closer than the first one and accordingly the same question was left for the Courts to decide the same. (c) Holy Quran and Ahadith of Holy Prophet (Peace be upon him.) The Holy Quran and the Ahadith of the Holy Prophet (Peace upon his) are fully saturated to explain the law of evidence in Islam and it is important to point out, that the basic principles are not disputed by any scholar of any sect. It may not be feasible to give reference of all -verses of the Holy Quran or to reproduce all Ahadith of the Holy Prophet (peace be upon him) in this judgment which are usually quoted by different people while discussing the issue in hand. However I consider the following references may serve the purpose of understanding the real concept of evidence in Islam. Verses of the Holy Quran Verses of the Holy Quran are general on this issue and there is not a single verse which may have prohibited the relatives to stand witnesses in favour of their relatives. It was also claimed by the great scholar of his time that Hazrat Umar-bin-Al-Khatab, Hazrat Umar-bin-Abdul Aziz, Qazi Shurih, Hazrat Abu-Baker-bin-Muhammad-bin-Umar-bin-Hazm have always treated evidence of relatives in favour of relatives admissible. (Contrary view of Qazi Shurih was mentioned by Allama Jalaluddin Sayuti in his book of history known as "Tarikhul-Khulafa"). Ibn-ul-Qayyam was the great scholar of his time who discussed the opposite view in detail by taking into consideration the possibilities of partiality, favourtism, kinship, interest etc. which can .render any testimony untrustworthy. But with profound respect for the great scholar it can be said witch certainty that moral degradation in the present age especially in the sub-continent was not so common during the age of Ibn-ul-Qayyam. Hence it would neither be useful nor feasible to reproduce all what was stated by Ibn-Qayyam in his scholarly work except to say that the views expressed by the great scholar were not without force. However, constitutionally being bound to follow the law of the country, every Judge is bound to deal each and every matter in accordance to the relevant provisions of law prevailing in the countiy i.e the Qanun-e- Shahadat Order, 1984. 18. Unfortunately the Qanun-e-Shahadat Order 1984 promulgated on 26th October 1984, does not remove this difficulty. Article 3 of the Order which is relevant to the above mentioned issue nans as under: 3. Who may testify-All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence. Provided further that the provisions of the first proviso "shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways. Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the injunctions of Islam as laid down in the Holy Quran and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. Explanation.--A. lunatic is not incompetent to testify, unless she is prevented by his lunacy form understanding the questions put to him and giving rational answers to them. Article 3 of the Order 1984 was introduced in place of Section 118 of the repealed Act. Three provisos to Article 3 of the Order were not existing previously with Section 118 of the Act otherwise both are the same. A bare reading of Article 3 of the Order 1984 shows that all persons, no matter they are relatives or not, are competent to give evidence if: (a) (i) they possess physical ability of understanding the questions put to them; and (ii) they give rational answers to these questions. If any witnesses is prevented from understanding the questions put to them or from giving rational answers due to tender years, extreme old age, disease whether of body or mind or anyother cause of same kind or due to lunancy (as per illustration in Article 3 of the Order) then he/she may not be treated to be a competent witness. (b) Second condition of competency, other than the physical ability pertains to moral qualities of a witness. It requires a witness to give evidence which should always be free from fear, favour, hatred, bias, love, lust, affection and enmity, regarding this condition of competency third proviso to Article 3 of the Order makes it imperative for the Court to determine the competence, of a witness in accordance with the qualification prescribed by the injunction of Islam as laid down in the Holy Quran and Sunnah. In case such witness is not forthcoming, the Court may take the evidence of witness who may be available. 19. Although it was mentioned in the 3rd proviso to Article 3 of the Order 1984 that the Court shall determine the competence of a witness in accordance with qualifications prescribed by the Injunction of Islam as laid down in the Holy Quran and Sunnah for a witness yet the details of such qualifications were avoided to be mentioned in the Order 1984. Perhaps it was presumed by the legislators that most of the Presiding Officers of the Court were well conversant with the Holy Quran and the Sunnah on the law of evidence. So far as the Holy Quran is concerned no believer has any dispute on its universalism but this bitter reality cannot be denied that several books of Ahadith which are recognised by one sect are usually not accepted by other sects. Moreover starvation of real scholars in the present age has increased the number of compilers who presented their books or booklet in accordance to the views of any specific Imam. Such kind of compilation has done no service to humanity but has only strengthened sectarianism. So far as the Judges of Courts are concerned they are not supposed to follow any specific Imam, spiritual leader or religious sect, even inspite of their deep attachment with them. Judges belong to an elite of erudites who are expected to work as thinkers and in capacity of Judges of an Islamic State they are bound to judge which view of the muslim scholars is closest to universalism because Islamic principles of justice are universal in their nature and sectariansim or parochialism do not have any scooping it. They are also expected to possess faculties of coitation to harmonize conflicting vies of scholars with the help of juristic deductions including Qisas, Istihsan, Istidlal and Ijtihad. Although it is stressed from certain religious corners that doors of Ijtehad (juristic exposition) had ben closed since long but no one tells: (i) Who closed the door of Ijtehad?; (ii) When they were closed? ; (iii) Is their any verse of the Holy Quran or Hadith of the Holi Prophet (Peace be upon him) according to which ^jtihad had to come to an end at any stage? ; (iv) If doors of Ijtehad are closed, then what source is ft for legislation to meet new problems to be faced by any nation?; I think that doctrine of Imam Shafi'i that "the voice of people is the voice of Allah Al-Mighty" possesses universal characteristics which curbs the sectarian's approach of any sect on the issue of Ijtehad. I am of the view that -v legislation done by chosen representatives of people in legislative assemblies and juristic deduction by the judges of Courts on the bases of juristic equity and public good symbolizes the said concept of Imam Shafi'i. 20. Adopting any of the extreme views and ignoring the other vies of different sects would amount to putting the Judicial seat to legalize and justify sectarism. I am of the view that by taking into consideration the whole discussion of the foregoing paragraphs judicial harmony on this vital issue can be achieved by putting aside the sentiments of sectarianism. The outcome of the above discussion can be summarized in the following few lines but this summary is persuasive in its nature for other Judges of the Hon'ble High Court unless a seal is put by the Honourable Supreme Court to uphold the same: • "Evidence of a witness if for Justice to Allah (8:4:135) or for Allah to Justice (S:5:8). Therefore, combined effect of the two verses of the Holy Quran shows nothing except that evidence in its real sense is neither for favouring nor opposing any party but is to promote Justice for the sake of Allah Al-Mighty. Therefore, at the time of giving evidence a witness should not hesitate to testimony even against his/her own interest or against the interests of his/her close-relatives because protection of interests of any party lies with Allah (8:4:135). As Justice is next to piety, therefore any person, no matter he/she is of any faith, can be symbol of piety if Justice is done by that person. Moreover, Justice is not the fief of any national, therefore, piety also cannot be the fief of any class of believers or atheists. Real Justice can only be done when witnesses give evidence based on truth. If the evidence of a witness reflects enmity, bias, love, lust etc. against or in favour of a person then such evidence is not admissible. If evidence of a witness in favour of a party is not objected by or na doubt is expressed about the evidence of that witness by the opposite party then such evidence be treated admissible provided the Judge of the Court is also satisfied that the evidence of that witness is free from partiality, favourtism and indecent etc. If the evidence of such person created some doubt in the minds of common person about partiality or favourtism, then the same may not be treated admissible unless corroborated by other pieces of evidence. Same is the position of evidence of slaves or servants in favour of their masters, wives in favour of their husbands or children in favour of their parents and vice-versa provided they are dependent upon the house-holders. As the moral degradation in the present age is at its climax, therefore it would be proper not to accept evidence of relatives in favour of relatives when there is no corroboratory evidence to support the same." The above summaiy can be read with the cases quoted in different Books of History as well as from the judgments of the Supreme Court. For example, Tareekhul-Khulafa by Allama Jalaluddin Syuti published by Madina Publishing Company Karachi mentions a case on page 273 with reference to Durraj between Hazrat Ali versus one Jew regarding ownership of one armour tabled before Qazi (means a Judge) namely, Hazrat Shurih. Hazrat Ali (R.A.) had claimed that the armour in dispute which was in possession of the Jew was his lost armour while the Jew claimed that he was the owner of that armour. Witness produced by Hazrat Ali (R.A.) in support of his claim were his slave Qambar as well as his son Hazrat Hassan (R.A.). The opponent was a Jew who had different faith as of Hazrat Ali and he could propagate that a Muslim Judge had favoured the Muslim Caliph of Holy Prophet Hazrat Muhammad (Peace be upon him). The Judge was not ready to accept their evidence because it was evidence of closely related persons in favour of Hazrat Ali without any corroboratory evidence and not against the interest of claimant. There is no doubt and even the Judge had no doubt that the claimant and his witnesses were speaking truth and nothing but truth but it was against the basic principle of Justice regarding the concept of interested witness and the decision in favour of Hazrat Ali could become a precedent for future besides giving a weapon in the hands of enemies to propagate against independence of Judiciary in Islam. It is notable that claimant and his witnesses were among the Sahabies (Companions of the Holy Prophet, peace be upon him) while the Judge namely Qazi Shurih was a "Taubie" (means belonging to the next generation of Sahabies). Another example is the status of "approver's evidence", which can be ascertained from the famous case of State versus Zulfiqar Ali Bhutto (PLD 1978 Lahore 253). Actual murderer in that case had become approver he was interested to save his life by serving the interests of Zia's Martial Law Regime to assassinate Mr. Zulfiqar Ali Bhutto. Before assassination of this great Leader, General Zia introduced Shariat Benches of Superior Courts to show that he was determined to bring Islamic Laws in Pakistan. When status of approver was challenged before the said Shariat Bench at Karachi, the petition was admitted for regular hearing and notices were issued to the Federation of Pakistan. However, when the application for stay of execution was moved before the said Bench it could not be heard because one member of the said (Mr. Justice Dr. I. Mahmud, as he then was) had fallen ill and the Honourable Chief Justice (Mr. Justice Abdul Kadir Shaikh, as he then was) of the Sindh High Court had not agreed to constitute a new bench on the day when the same was fixed for hearing. Resultantiy, the dawn of the next day brought the news of assassination. Shariat Benches of Superior Courts were abolished and replaced by Federal Shaxiat Court. All pending • Shariat Petitions, including the one mentioned above, were heard and disposed of by the Federal Shariat Court vide main judgment written by Mr. Justice Aftab Hussain who had also written the judgment in the case of State vs. Zulfiqar Ali Bhutto (supra). After about 12 years from 1979 the Federal Shariat Court decided the scope of approver in Islam which could be easily decided before the assassination of Mr. Zulfiqar Ali Bhutto. True scope of approver's evidence with reference to the concept of Interested witness can be ascertained from the judgments reported in PLD 1978 Lahore 523, PLD 1979 S.C. 53, PLD 1980 F.S.C. 1, 1983 SCMR 1127, PLD 1989 S.C. 633, PLD { 1991 FSC 139 and 1994 SCMR 932). In the light of weighty observations made by the Honourable Judges of the Superior Courts, I have the least hesitation in my mind to hold that the P.Ws who deposed against the present appellant in this case were not interested witnesses from any angle whatsoever because neither any interest of those witnesses was apparently evident nor the appellant or the defence had brought into light any possible or expected interest of those persons at any stage of the case. 21. After going through the evidence recorded by the trial Court and considering the circumstances and facts which remained un-shattered during cross-examination, no room is left for any sensible person but to believe that it was only Muhammad Din who had fired upon deceased Abdul Rahim. It is notable that no defence theory was advanced on behalf of the appellant during cross-examination of the witnesses except a crippled stand taken at belated stage when statement of appellant was recorded under Section 34(2) Cr. P. C. on 15.4.1993. Relevant portion of the statement runs as under: - "In year 1987 he (means complainant Muhammad Miskeen) requested me to get one house constructed in my supervision situated at sector 9 Nai-Abadi Muhajir Camp. I supervised the construction and completed the same till year 1988 when the said Miskeen levelled allegation of mis­ appropriation of funds against me, the dispute was placed before the Jirga which declared me innocent and one Rahim Chacha (who) was elder of the both, insulted the complainant for levelling false allegation against me on which the complainant was annoyed with me and issued threats for taking revenge. Unfortunately his brother was shot at the hands of some unknown person and he found a good chance for taking revenge from me and thus implicated me in this false case. I am innocent. I have committed no offence." This defence theory is not too convincing to be believed on several grounds which can be summarized as under: (i) Muhammad Miskeen, against whom this story was concocted, did not support the prosecution and tried to save the appellant by suppressing his name while deposing in the Court. (ii) This defence did not disclose anything why other P.Ws deposed against the appellant (iii) No question was asked or suggestion was put to any P.W. at any stage in support of this defence story Theory. (iv) No member of Jirga was examined in support of this defence and to corroborate the version of the appellant. 22. Persuant to the above discussion, I hold that conclusion of guilt regarding factual aspect of firing By the appellant upon the deceased as arrived at by the learned trial Judge against the appellant is so well founded that it needs no interference. But, with reference to other factual aspects such as close-blood relationship of the appellant with the deceased, doubtful motive, no proof of previous enmity, firing only one bullet from a revolver which contained other bullets too and peculiar circumstances of the case as reflected from the evidence do not leave any doubt for me to believe that the appellant injured the deceased with the knowledge that his act of firing was likely to cause death although he had no intention to cause his death. If he had any such intention, he could have fired the remaining bullets contained in his revolver. 23. The accumulative effect of all what has been discussed above, in the light of roles played by each character of prosecution story, brings the conclusive episode of this appeal to an end with the following conclusions and decisive order: (a) (i) Lesser penally of imprisonment of ten (10) years would better serve the ends of justice, in peculiar circumstances of the case. Hence the same is imposed instead of upholding the sentence of Imprisonment of life on account of my view that act of the appellant attracts section 304 PPC and not section 302 PPC (as they were prior to the promulgation of Qisas and Diyat Ordinance). (ii) Fine of Rs. 5.000/- (Five thousand) is enhanced to Rs. 20,OOQ/- (Twenty Thousand only) and in case of non­ payment, the appellant shall suffer three years R.I.; But (iii) The appellant is ordered, in term of section 644-ACr. P. C. to pay compensation of Rs. 2,00,OGO/- (Rupees two lac only) instead of Rs. 25,OOQ/- to the legal heirs of the deceased or to suffer five years R.I. Except the sentence of non-payment of compensation to the legal heirs, the remaining two substantive sentences as mentioned in paras a(i) & a(ii) above shall run concurrently. In case the amount of fine and compensation is paid by the appellant, the entire amount should be paid to the legal heirs of deceased Abdul Rahim after their proper verification by the District & Sessions Judge in whose jurisdiction they are residing; (b) The appellant is entitled to the benefit of section 382(1) Or. P. C. (c) Although Offence, in this case, was committed prior to the promulgation of Qisas & Diyat Ordinance but proceedings were completed after the said Order came into fore. Hence the right of compromise would be available to the parties. (d) If any of the legal heirs pardons the appellant, then only the sentence of compensation mentioned in para a(iii) above would be reduced to the extent of his/her share. With the above modification in the sentences, the appal is dismissed. Order accordingly. (M.G.B.) Appeal partly accepted.

PLJ 1996 Karachi 252 PLJ 1996 Karachi 252 Present: hamid ali mirza, J. TANVEER AHMED-Appellant versus Mst. ABIDA YASMIN BUTT--Respondents F.R.A. No. 254 of 1995 dismissed on 24.9.1995 Cantonment Rent Restriction Act, 1963 (XI of 1963)- —S. 24 read with S. 17 (8) and (9)-Appellant failed to deposit rent in accordance with rent order-Defence struck off-Appeal to-Attorney of Appellant did not receive notice brought to him by process server-He failed to deposit future rent in terms of rent order-There was clear noncompliance of tentative rent order-No evidence available to him which could be adduced in support of his contentions-Appeal has no merits, dismissed in limine. [P. 259] A PLD 1994 SC 52 ref. Mr. Habibur-Rehman, Advocate for Appellant. Mr. Iftikhar Jawaid Qazi, Advocate for Respondent. Date of hearing: 24-9-1995. order This is an appeal under section 24 of the Cantonment Rent Restriction Act, 1963 (hereinafter called Rent Act) directed against an order dated 29.3.1995 passed by Additional Controller of Rents, Clifton Cantonment, Karachi, in Rent Case No. 48/94, Mst. Abida Yasmin vs. Tanveer Ahmad, whereby the learned Additional Controller of rents struck off the defence of the appellant for non-compliance of order dated 4.2.1995 passed under section 17 clause 8 of the Rent Act, hence the present appeal. Brief facts of the case are that the appellant/tenant was directed as per order dated 4.2.1995 to deposit arrears of rent (inclusive of hiring charges) at the rate of Rs. 3,200/- per month from 7.10.1993 to January, 1995 on or before 1.3.1995 and future rent at the rate of Rs. 3,200/- per month from February, 1995 and thereafter to continue to deposit rent before 5th of each succeeding month subject to condition that respondent/landlady would not withdraw the rent for the period from 7.10.1993 to December, 1993 till the disposal of the case, however, the respondent/landlady was allowed to withdraw the rent from January, 1994 onwards. The respondent/landlady moved an application on 18.3.1995 under subsection 9 of section 17 of the Rent Act stating therein that appellant/tenant has failed to deposit rent for the month of February, 1995 in accordance with rent rder dated 4.2.1995, therefore, defence of the opponent be struck off. The learned Additional Controller of rents ordered notice to the other side on 18.3.1995 on the application moved by the respondent/landlady and also in the diary sheet it was ordered that the accountant to submit his report on the said application and the matter was adjourned to 29.3.1995 for filing affidavit-in-evidence by the applicant/further action/order. The matter was put up on 29.3.1995 when impugned order was passed when the appellant's attorney was not present, hence this appeal has been preferred. I have heard Mr. Habibur Rehman, learned counsel for appellant's attorney and Mr. Iftikhar Javed Qazi, learned counsel for respondent and perused the record and proceedings of the case and the case law cited by the parties' counsel. Learned counsel Mr. Habibur Rehman, for appellants attorney has argued that impugned order has been passed without affording opportunity to the appellant/tenant and further the tentative rent order dated 4.2.1995 passed under subsection 8 of section 17 of the Rent Act was illegal as the same was passed without determining the amount of total arrears to be deposited by the appellant/tenant. He has referred to diaiy sheet dated 18.3.1995 and also impugned order dated 29.3.1995 and the bailiffs endorsement at page 11 of the second part of the R & P and has also placed reliance upon Muhammad Nasir Farooqi, v. Mst. Zubaida and two others (1992 CLC 1086), Habib Bank Ltd. v. Noor Ahmad (1990 CLC 1170) Ali Jan u. Shujauddin (PLD 1985 Kar. 698, D.B.) Syed Ahsan Ali v. Jaffar Mi and four others (PLD 1964 (W.P.) Kar. 418) (D.B.) and Syed Tahir Hassan Gardezi v. Abid Hussain Qureshi (1986 MLD 2980) in support of his contentions. Mr. Iftikhar Javed Qazi, learned counsel for respondent has argued that the order dated 4.2.1995 is legal and proper considering that it consisted of two parts one part dealing with the deposit of arrears of rent from 7.10.1993 to January, 1995 to be deposited before 1.3.1995 and the second part consisted of the directions for the deposit of future rent from February, 1995 before 5th of each calendar month. He has argued that so far the arrears of rent of first part of order is concerned, the appellant/tenant has made compliance of the same by making deposit of rent for the sum of Rs. 40,800/- on 22.2.1995 and sum of Rs. 6,400/- on 28.2.1995 but so far the second part of the order, i.e. rent for the months of February and March, 1995 which was to be deposited before 5th of March and 5th of April, 1995 respectively was deposited on 19.4.1995 therefore there was non-compliance of the order dated 4.2.1995 as per certified copy of statement of the payments made in the office the Additional Controller of the rent, Clifton Cantonment, filed with the memo of appeal. He has further argued that Raja Nasir Mehmood is the legally constituted attorney of the appellant and he has been pursuing the proceedings before the Rent Controller as well as has filed the present appeal in this Court who did not receive the notice in respect of application moved under section 17(9) of the Rent Act by the respondent/landlady from the process-server (bailiff) who made endorsement on oath that he went to the address of the opponent who was not there but his brother Nasir Mehmood was present who told him that appellant/tenant was not present therefore the notice could not be served. Learned counsel in view of the endorsement of the bailiff contended that Mr. Nasir Mehmood should have accepted the notice of the appellant being his attorney therefore it could not be said that appellant's attorney had no notice of the application or that he was not given opportunity of hearing. He has further argued that the amount in terms of subsection 8 of section 17 is to be determined in respect of arrears of rent but in the instant case the appellant/tenant has made non-compliance of deposit of the future rent, of which there has been no justification for the appellant/tenant's attorney not to make deposit the same and to make non-compliance of the order, therefore, the impugned order striking off the defence of the appellant was legal and proper. He has placed reliance upon Ramz Alt Sangi v. Kamal Ahmed Nomani (1987 CLC 563); Abdul Malik Shamsi v. Muhammad Shamim (1986 CLC 54G); Sheikh Ghulam Irfan v. Raheda Fayyaz (1994 MLD 789); Asad Ahmad Siddiqui v. Mst. Wilayati Begum (1990 MLD 2247); Maqbool Elahi v. S. Anwer Tauheed (1984 CLC 626); M/s. Crescent Publicity Service v. S.M. Younus and others (1980 SCMR 779) and Begum Fehmeeda Khalifa v. Salma Hameed Qureshi (NLR 1993 AC (Civil) 403) in support of his contentions. Contention of the learned counsel for appellant's attorney that impugned order was passed without notice to him has no merit in view of following reason. Application dated 18.3.1995 under section 17(8) of the Rent Act bears the order of notice to other side passed by the Rent Controller and in pursuance of that order, notice was issued to the appellant/tenant but it was not received by Mr. Nasir Mehmood, the attorney of the appellant/tenant, and the process server was told that the appellant/tenant was not there. Mr. Nasir Mehmood being attorney should have received the notice but he avoided to receive the same. The statement of the process server is on oath and no reason has been assigned by Mr. Nasir Mehmood as to why he did not receive notice being attorney of the appellant from the process serve. In case the notice is sent but it is not received or avoided by a party then he could not say that he was not given notice or that he was condemned unheard. The appellant's attorney knew that the said application was field and the process server had brought the notice to him but he avoided to receive the same by saying that the appellant was not there. In the circumstances, it cannot be said that the appellant had no notice or was not given opportunity of hearing. Next contention of the learned counsel for appellant is that the order dated 4.2.1995 is illegal as the Rent Controller failed to determine the total amount of arrears by calculation, therefore, in view of the case law cited, the non-compliance of the order would not entail the penalty of eviction upon the appellant, however, learned counsel has failed to say anything as to why future rent for the months of February and March, 1995 was not deposited in terms of order dated 4-2-1995. In fact, there is no default in respect of arrears of rent but the default has occurred for the future rent for the months of February and March, 1995 which is evident from the statement of deposit made in the office of the Additional Controller of rent, the certified copy of which has been filed alongwith the counter-objections in this appeal, the copy of which was supplied to the learned counsel for appellant's attorney and in the rejoinder the attorney of the appellant stated that the rent for the months of February and March, 1995 was deposited on 28.2.95 but the said amount deposited would appear from the certified copy of statement of deposit of rent to be rent for the months of December and January, 1995, the receipts of which were given to the appellant/tenant's attorney as stated by the learned counsel for respondent but the same have not been deliberately filed to cover up the lapse on his part. As regards the decision relied upon by the learned counsel for the appellant's attorney in Muhammad Nasir Farooqi v. Mst Zubaida and two others (1992 CLC 1086) case, the appellant/tenant was directed to withdraw the rent already deposited by him with the Rent Controller, Karachi-Sought and to deposit the same before the Controller Cantonment Board before 5.9.90 and further to deposit rent for the month of September, 1990 and for subsequent months on 5th of each succeeding month but the appellant/tenant could not withdraw rent from the Rent Controller, Karachi-South, and deposit the same with the Rent Controller, Cantonment Board, therefore, on the application of the respondent/landlady after getting the report from the accountant about the deposit of rent defence of the appellant/tenant was struck off and in the said circumstances plea was taken that the appellant/tenant was not given notice of the said application. The instant case is distinguishable to the facts of the reported case as in that case no notice of application under section 17(9) of Rent Act was given whereas in the instant case notice was issued but it was not received by the attorney of the appellant and secondly the default pertained to non-compliance of arrears of rent not in respect of future rent as would appear from the reported judgment. In Habib Bank Ltd. v. Noor Ahmad (1990 CLC 1170) case, the appellant/tenant was directed to deposit rent from March, 1984 to June, 1986 at the rate of Rs. 1,000/- amounting to Rs. 28,000/- in all, subject to adjustment of rent lying deposited in the Court, however, the appellant/tenant made a statement on 11.8.86 that he could not deposit the rent in the pending ejectment ease due to certain difficulties and he continued to deposit in Misc. Rent Case therefore the respondent/landlord made an application for striking off the defence of the appellant/tenant which application was dismissed against which FRA No. 75/88 was filed before this Court which too was dismissed in limine on 18.2.1988 holding that the Rent Controller could only direct deposit of rent as such, and since the direction for adjustment of the deposited rent in the Misc. Rent Case involved vagueness and an irregularity, defence of the appellant could not be struck off and direction was made for fresh order of deposit and thereafter fresh order was passed but the appellant/tenant did not make deposit in compliance of the order therefore his defence was again struck off on 13.4.1989, therefore, appeal was preferred before this Court wherein it was observed that the Rent Controller had committed the same error directing that amount deposited be adjusted but had not quantified and had directed amount deposited be transferred to the ejectment case. It was further held that where calculations are left to the tenant to make or for him to confirm from another set of proceedings, such order involves departure from statutory requirements and fails to qualify the prescribed test for invocation of penal consequences. The said reported case in distinguishable to the facts of the instant case as there was a question of adjustment of rent earlier deposited in the Court but in the instant case there was no such question but the question was that the appellant/tenant failed to deposit future rent for the months of February and March, 1995 in terms of the order dated 4.2.1995. The case of All Jan v. Shujauddin (PLD 1985 Kar. 698, D:B.) cited by the learned counsel for the appellant's attorney supports the case of the respondent. In the said case the appellant was directed to deposit arrears of rent from July, 1977 to August, 1979 at the rate of Rs. 1QP per month amounting to Rs. 2,600/- in the 'Court before 12th of OctobeX 1979 and future rent from September, 1979 at the rate of Rs. 100 per moraM§ till the disposal of the case before the 15th of each calendar month and fur%ef that amount of rent deposited in any Misc. Application in the name of the respondent till the date of order be adjusted against the amount of arrears of Rs. 2,600/- but the appellant failed to comply with the above order therefore his defence was struck off. In the said case it was pleaded that the order under section 13(6) of the Sindh Urban Rent Restriction Ordinance, 1959 was not in accordance with the provisions under which it was passed and therefore its non-compliance would not result in the striking off the defence of the appellant as instead of determining the amount of arrears of rent, the Controller left it to be determined by the appellant/tenant though under the law Rent Controller was required to determine it. In the said circumstances, it was observed: "The rule laid down by the learned Judges of the Supreme Court in the afore.said case is in our opinion not applicable to the order passed by the Controller for the direction given by the Controller for deposit of future rent is not based on the earlier order as to deposit of arrears of rent. The Controller, in our opinion, gave two separate and independent directions one of which was illegal as already held by us but the other, in our opinion, is legal. It is only when the Controller has no jurisdiction to pass an order at all that his order as a whole would be illegal. It is not disputed that the Controller had jurisdiction to pass the second direction as to deposit of future rent as contained in the order, dated 23.9.1979. We have no doubt that the directions for deposit of arrears of rent and for deposit of future rent are independent of each other and are two separate directions though that may be contained in one order for the reason that there may be cases where there may not be any arrears of rent to be paid. In such cases there will not be any order by the Controller for deposit of arrears of rent. There will be an order only for deposit of future rent and in such case there could be a default in respect of future rent only. We may consider the question from another angle. Assuming the Controller had passed the order of deposit of arrears of rent according to law and also the order of deposit of future rent against in accordance with law and the appellant had complied with the order of deposit of future rent, still, the tenant would have been liable to be evicted from the premises. Thus, we are clear in our mind that the two directions which are required to be given by the Controller are independent of each other." In Syed Tahir Hassan Gardezi . Abid Hussain Qureshi, (1986 MLD 2980) case, the appellant/tenant was directed to deposit arrears of rent as well as future rent subject to adjustment of the rent already deposited in Misc. Rent Case till the date of order and future rent to be deposited before 10th of each calender month. The respondent/landlord filed application for striking off the defence on the ground that balance of arrears of rent as well as future rent was not deposited in time. This Court after hearing the counsel for parties observed that statement of account including Nazir's report as well as amount of rent due against the appellant would show that appellant had deposited much more than the amount of rent which was due to him, therefore, there was no default in deposit of future rent as well. The instant case in the circumstances is distinguishable to the facts of the said reported case. In Syed Ahsan Ali v. Jaffar Ali and four others (PLD 1964 (W.P.) Kar. 418) case, the appellant/tenant was directed to clear off Rs. 1200/- as arrears of rent till January, 1963 in two equal installments payable before 5th February and 5th March, 1963 and continue paying the rent at th-e rate of Rs. 100 per month till decision of the case. It was contended in the said case that "if orders in respect of the arrears and future rents are not passed in strict conformity with its provisions, the tenant is not liable to be evicted for not complying with a defective order." In the instant case nothing has been said as to how the tentative rent order with regards to the deposit of future rent was not in conformity with the provisions of law or that how the appellant was justified from not making compliance of future rent for the months of February and March, 1995. Accordingly, the said case cited is distinguishable to the instant case. Now remains the case law cited by the learned counsel for the respondent. (In Ramz Ali Sangi v. Kamal Ahmed Nomani (1987 CLC 563) case, the appellant was directed to deposit arrears of rent from April, 1985 to June, 1986 at the rate of Rs. 1100/- per month and Rs. 400/- being arrears of rent of March, 1985, amounts to Rs. 16.900/- after deducting Rs. 4.800/- if he had paid the decretal amount, and the said amount was to be paid within 30 days of the order and the appellant was, however, directed to pay future monthly rent of Rs. 1100/- per month from July, 1985. The respondent filed an application that the appellant/tenant has not deposited rent since March and has failed to deposit arrears of rent by 13.8.1986 as required to pay rent of July before the 10th of August and has failed to deposit two decretal amounts of Small Causes Court, therefore, his salary has been attached. The Rent Controller struck off the defence and the appeal before this Court also failed. In Sheikh Ghulam Irfan v. Raheela Fayyaz (1994 MLD 789) case, the appellant was directed to deposit a sum of Rs. 29.133/- as rent arrears till 24.11.1993 and future monthly rent at the rate of Rs. 3,200/- per month before 5th of each calendar month. The rent for the month of October, 1993 was payable before 5th of November, 1993. The respondent submitted an application under section 17(8) of the Rent Act 31.11.1993 for striking off the defence of the appellant/tenant on the ground that neither arrears of rent were paid nor rent for the month of November, 1993 was deposited before the 5th of next month. The Rent Controller struck off the defence against which appeal was filed before this Court which also failed. In Asad Ahmed Siddiqui v. Mst. Wilayati Begum (1990 MLD 2247) case, the appellant/ tenant was directed to deposit arrears of rent from July to November, 1989 and to continue to deposit future rent w.e.f. 1st December, 1989 before 10th of the following months. The appellant-did not comply with the order and on 20th January, 1990, the respondent applied under section 16 (2) of the Ordinance for striking off the defence against which appeal was preferred wherein it was pleaded that the Rent Controller should have first determined the relationship of landlord and tenant between the parties, hence, the tentative rent order passed was not legal and this Court held that the tentative rent order to be perfectly valid and dismissed the appeal filed by the appellant/tenant. In Maqbool Eiahi v. S. Anwer Tauheed (1984 SC 626) case, the Rent Controller directed the tenants to deposit arrears of rent at the rates claimed by the respondent with the condition that disputed portions of rents shall not be withdrawn by the respondent till the final disposal of the case. The respondent filed application under section 16 (2) of the Rent Ordinance to which objections were filed by the tenants and Rent Controller struck off the defence of the tenant and ordered ejectment. The plea was raised by the counsel for the tenant that enquiry was required to be made by Rent Controller before passing tentative rent orders as it was not made therefore the orders passed were illegal. It was held by this Court that it was not necessary to record evidence by the Rent Controller and the tentative rent orders were legal. In M/S. Crescent Publicity Service v. S.M. Younus and others (1980 SCMR. 779) case, their Lordship upheld the decision of High Court holding thfct even single default would be sufficient to bring the case within the mischief of section 13 (6) of Rent Ordinance. I Begum Fehmeeda Khalifa v. Salma Hameed Qureshi, (NLR 1993 AC (Civil) 403) case, it was held at page 408 tiiat: "This is apart from the fact that according to the definition of the building given in the Cantonment Rent Restriction Act, 1963, the fittings and fixtures in the building also fall within the definition of building and has been treated to be part of building. This being so even if the rent was fixed separately for the main building and the fixtures and fittings through different agreements, the total amount payable through these two agreements for both building and fixtures could safely be construed to be trfe rent for the building." In Abdul Malik Sharnsi v. Muhammad Shamim (1986 CLC 540) case, it was held by this Court that failure of tenant to comply with the tentative rent order would attract the provisions of section 17(9) of the Rent Act, therefore, defence was liable to be struck off. From the perusal of the facts and the case law, it would appear that first part of order dated 4.2.95 is defective to the extent that approximate amount in respect of arrears of rent was not mentioned though the same could have been easily calculated and, in fact,' it was complied with by the appellant/tenant's attorney by making deposit on two different dates and, thus, there was no default so far the arrears of rent was concerned. So far the future rent, it is clear from the record and the certified true copy of statement obtained from the register of the Cantonment Board that the appellant/tenant failed to deposit rent in time towards the future rent for the months of February and March, 1995 and was, in fact, deposited on 19.4.1995 and thus there was clear non-compliance of the tentative rent order. I have heard at length the learned counsel for appellant/tenant's attorney but he could not convince me that the rent for the months of February and March, 1995 was deposited. I do not find in the circumstances to remand the case to the Court below for further enquiry only on the ground that total amount of arrears was not determined by the Rent Controller whereas appeal would also fail as appellant has failed to deposit future rent for the months of February and March, 1995 in terms of order as no evidence would be available to the appellant which could be adduced in support of his contentions made before this Court considering that it would be mere wastage of time and energy of the parties. Reference is made to Syed Abdul Hakim & others v. Ghulam Mohiuddin (PLD 1994 SC 52). I do not find any substance in the contentions of the appellant's counsel hence the appeal has no merits which is hereby dismissed in limine. Consequently, C.M.A. No. 792/95 is also dismissed. The appellant is given thirty days' period to vacate the premises. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 260 PLJ 1996 Karachi 260 Present: NAZIM HusSAIN SlDDIQUl, J. MUHAMMAD IBRAHIM-Appellant versus RAB NAWAZ-Respondent First Rent Appeal No. 594 of 1992, dismissed on 21.1.1996 (.) Cantonment Rent Restriction Act, 1963 (XI of 1963)- —S. 17 (4)~Tenant--Ejectment of-Order of-Challenge to—Contention that since premises is being used as a hotel, eviction application was not maintainable-Tenancy agreement does not show that premises was rented out to appellant for running a hotel therein-There is nothing on record indicating that hotel business was started by appellant with consent of respondent-Held: Eviction application before Rent Controller was maintainable. [P. 264] C (ii) Default-- —Tenant-Ejectment of-Order of-Challenge to-In written statement and affidavit-in-evidenee, appellant stated that rent for month of September 1991 was paid to respondent, but in cross-examination he stated that it was paid to son of respondent-He also alleged that rent of October and November, 1991 was sent to respondent by money order but it was not proved-There is nothing on record to show that money order sent to respondent-Held : Default for month of September 1991 as well as for months of October and November 1991 is proved as a wilful default. [P. 263] A (iii) Personal need-- —Tenant-Ejectment of-Order of-Challenge to-Appellant, in his crossexamination, has admitted that respondent is suffering from heart ailment and back-ache-Under advice of doctor to do light work, respondent's demand to use premises for running general store therein for himself, is justified-Nothing material has been brought on record to prove that respondent is owner of property where he is carrying on his business-Held: Respondent requires premises for his personal bona fide use-Appeal dismissed. [Pp. 264 & 265] D & E (iy) Security-- —Tenant-Ejectment of-Order of--Challenge to-Whether amount of security could be adjusted against default-Question of-Amount of Rs. 24,000/- which was deposited as security, was to be refunded to appellant at time of handing over of possession of premises after deducting dues and charges if any-Held : Security amount could not be adjusted towards payment of rent for which default was committed. [P. 264] B PLJ 1984 Karachi 106 distinguished. . PLD1990SC389re/. Mr. M.M. Aqil Awan, Advocate for Appellant. Mr. M. Ilyas Khan, Advocate for Respondent. Date of hearing: 19.4.1995. judgment This appeal, under Section 24 of the Cantonment Rent Restriction Act 1963, is directed against the order dated 24-11-1992, passed by learned Additional Controller of Rent Clifton Cantonment, whereby the appellant was directed to hand over vacant possession of the premises in question to the respondent within 45 days from the date of said order. The facts relevant for decision of this appeal are as follows : 2. Respondent Rab Nawaz on 16-11-1991 had failed the eviction application against appellant Muhammad Ibrahim for his eviction from the Shop No. 5, Plot No. DC-3, Kulsoom Court, Block 10 Clifton, Karachi, hereinafter referred to as the premises, on the grounds of default in payment of rent, impairing the value/utility of the premises by making addition and alteration in it, and personal bonafide use. The case of the respondent is that the appellant is his tenant in the premises at monthly rent of Rs. 4250/- and did not pay rent for the months of September, October, and November, 1991. It is alleged that in contravention of the terms of the agreement, the appellant is running a hotel in the premises and has constructed a "TANDOOR", which has caused damage to the premises. The respondent has claimed that, though the appellant had agreed to demolish said Tandoor and to repair the damages so caused by its construction, but he did not keep his words and continued with his hotel business. On the point of personal bonafide use, the case of the respondent is that he is a heart patient and the doctor has advised him not to carry on hard mechanical work, which he had been doing as a mechanic in the past. 3. The appellant in Written Statement denied the case of the respondent According to him, he had paid rent for the month of September 1991, but rent receipt was not issued to him. He claimed that the rent for the months of October and November, 1991 was sent through money order to the respondent, but the latter declined to accept it. He denied to have caused any damage to the premises. He also stated that respondent is already doing his own business as a mechanic and being the owner of a workshop does not require the premises for his personal use. 4. Respondent Rab Nawaz filed his affidavit-in-evidence and that of his witness Suleman. Both were cross-examined. Appellant filed his own affidavit and was cross examined. 5. The respondent in his affidavit-in-evidence reiterated that the rent for the months of September, October and November, 1991, inspite of repeated demands, was not paid to him. He also stated that he is suffering from heart diseases and back-ache. According to him, he is a mechanic and was running his workshop at PIB Colony, Karachi, and in view of his ailment, was not in a position to continue the said business. He now wants to start a business in the premises requiring less physical exertion. Respondent's witness Suleman in his affidavit-in-evidence stated that the respondent is a heart patient. 6. The appellant in his affidavit-in-evidence. repeated the same pleas, which he has raised in the Written Statement. According to learned counsel for the appellant, the application for depositing rent in court was filed on 4-1-1992, order on it was passed on 25-1-1992, and the rent was deposited in court on 4-2-1992. 7. From the pleadings of the parties, the learned Rent Controller had settled the following Issues : 1. Whether the opponent has carried out addition and alteration in the demised premises ? 2. Whether the opponent has committed default in payment of rent ? 3. " Whether the applicant requires the demised premises for his personal bonafide need ? 4. What should the order be ? 8. On assessment of the evidence learned Controller decided Issu No. 1 in favour of the appellant and Issues Isos. 2 and 3 in favour of the respondent. Consequently, he allowed the eviction application by order, which has been impugned in this appeal. In this appeal only the points of default in payment of rent and personal bonafide use are to be considered. •The respondent has not challenged the findings recorded on Issue No. 1. 9. Mr. M.M. Aqil Awan, learned counsel for the appellant first attempted to argue that no default in payment of rent was committed by the appellant, but when he was asked to explain that what was the evidence to substantiate this plea, he conceded that the appellant had committed default in payment of rent for the months of September and October, 1991. He however, contended that said default was not wilful and at the most could be termed as 'technical default'. Elaborating it, he submitted that the appellant had deposited with the respondent on amount of Rs. 24,000/- as security deposit and the rent of the above mentioned two months could be adjusted from the said amount. Clause 3 of the tenancy agreement dated 17-6-1991 between the parties is as follows :-- "3. That the tenant has deposited with the landlord a sum of Rs. 24,000/- (Rupees Twenty four thousand only) which will remain with the landlord as Security Deposit and shall be refundable at the time of vacating and handing over the possession of the said shop after deducting dues, and charges if any, found at that time. This amount of security deposit shall not bear any interest or profit etc." 10. The evidence on record indicates that the default was wilful. In the written statement and affidavit-in-evidence the appellant stated that the rent for the month of September, 1991 was paid to the respondent, but in cross examination, he stated that, in fact, it was paid to the son of the ?C" respondent. He, however, admitted that he has not mentioned in the writtenstatement and affidavit-in-evidence that the rent was paid to the son of the respondent. The evidence of the appellant on this point is inconsistent and also contradictory. Admittedly, usual practice between the parties was that the appellant used to himself draw the receipt and it was signed by the respondent when the payment was made. Had the appellant paid rent for the month of September, 1991, he would have been in possession of the rent receipt. The appellant attempted to justify that he had paid rent for the month of September, 1991, although he had not done so. The default was wilful. The appellant also alleged that the rent of October and November, 1991 was sent to the respondent by money order. This again is not proved. On record there is only a photo copy of postal receipt No. 3150, showing the amount of Rs. 4250/-. Date on this receipt is not dear. Form this receipt it is not established that the rent for the months of October and November, 1991 was actually sent to the respondent by money order. Also, it is not proved that said money order was refused by the respondent. In fact, there is nothing on record to show that the money order, as is being claimed now, was sent to the respondent. The default for the months of October and November, 1991 is also proved and it was also a wilful default. 11. Mr. Awan, however, laid much stress on the point that the amount of security could be adjusted towards the rent. In this connection, he has relied upon the case ofM/s. Adam Ltd., Karachi vs. M/s. General Rubber Trading Co. Karachi PLD 1984 Kar. 106. In this case, tenant had paid three -yrmonths rent as security deposit and he committed default which was of less than three months. It was held that amount deposited as security deposit could beadjusted towards rent. This point, was also examined by the Hon'ble Supreme Court in the case of Mst. Saeeda Khatoon vs. Muhammad Ahmad Lateefi PLD 1990 S.C. 389 and at page 393 the following was observed : "In the case in hand the term under which the security deposit was made specifically states that it cannot be adjusted against the future rent and it could be returned only after the premises is vacated in good condition. Therefore, the High Court was not right when it held that the amount of security could he adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises is held by the tenant." 12. Coming back to the facts of the instant case, it is noted that the amount of Rs. 24,000/- which was deposited as security, was to be refunded to the appellant at the time of handing over the possession of the premises after deducting the dues and charges if any. It is evident that the amount of security deposit was not to be adjusted towards rent. It being so, the appellant, now cannot ask for adjustment from said amount towards the rent. This would simply amount to change the terms of the agreement. Relying upon the dictum laid down by the Supreme Court, I hold that the security amount could not be adjusted towards the payment of rent for which the default was committed. 13. Mr. Awan learned counsel for the appellant also contended that, in view of Sub-section 4 of Section 17 of the Cantonment Rent Restriction Act, 1963, the rent application before the Controller was not maintainable. The third proviso of sub-section 4 of Section 17 of the Act states that sub­ section 4, which deals with both residential and commercial buildings, would not apply in case of sarai, hotel, dock bungalow, lodging houses, boarding house, residential clubs, restaurants, eating house, cafe, refreshment room and places of public recreation etc. Precisely stated the contention is that since the premises is being used as hotel, the eviction application was not maintainable. The tenancy agreement does not show that the premises was rented out to the appellant for running a hotel therein. There is nothing on record to indicate that hotel business was started in the premises with the consent of the respondent. Under these circumstances, the eviction application before the Rent Controller was maintainable. 14. The next ground is of personal bonafide use. The appellant, in his cross examination, has admitted that the respondent is suffering from heart ailment and back-ache. Admittedly, the respondent is a motor mechanic, which requires hard physical work. The doctor, however, has advised him to do light work. Under these circumstances, the demand of the respondent to use the premises for running general store therein for himself is justified. Although the appellant stated that the respondent is the owner of the property, where he is carrying on his business, but nothing material has been brought on record to substantiate this plea. Accordingly, I hold that the respondent requires the premises for his personal bonafide use. 15. In consequence, I do not find any merit in this Appeal and the same is dismissed with no order as to cost. Three months time, however, is granted to the appellant for handing over vacant possession of the premises in question to the respondent. (ZB) Appeal dismissed.

PLJ 1996 Karachi 265 PLJ 1996 Karachi 265 Present: dr. ghous muhammad, J. ATTAUR REHMAN-Applicant versus Mst. AISHA JABEEN-Respondent Civil Revision No. 283 of 1994, accepted on 24.12.1995 Succession Act, 1925 (XXXIX of 1925)-- —-S. 295-Letter of administration-Issuance of--Challenge to—Proceedings became contentious when caveat supported by affidavit was filed by applicant and it was not open to court of District judge to decide matter in a summary manner-In such a situation, proceedings will not become a regular suit but petitioner will become plaintiff and caveator will be __ defendant and as nearly as may be, it will take form of a regular suit- ' Held : Keeping in view provisions of Section 295 of Act, and facts of case, District Judge has erred in not following provisions of law and impugned order is legally unsustainable-Petition accepted and case remanded. [Pp. 266 & 267] A Mr. Abdul Khalil, Advocate for Applicant. Mr. Shakeel Ahmed, Advocate for Respondent (absent). Date of hearing: 17.12,1995 judgment The Civil Revision is directed against the order dated 12.7.1994 passed by the learned District Judge Karachi East in S.M.A. No. 352/93 whereby petition of the respondent was allowed and the application submitted by the .present applicant under Section 295 of the Succession Act, (hereinafter referred to as the Act) was dismissed. The respondent filed petition under Section 278 of the Act for grant of Letter of administration in respect of House No. 5/2144 situate in Shah Faisal Colony Karachi. This house was in the name of Mst. Sairah Bi who was mother of the parties. She died intestate at Karachi on 22.12.1985 leaving behind two sons and two daughters. According to the respondent after her death a joint meeting of the legal heirs was held wherein the applicant being one of the legal heirs had agreed to relinquish his right from the properly after receiving his share which valued at Rs. 60,000/- out of which he was paid Rs. 10,000/-. Therefore she prayed for grant of Letter of administration. However the applicant after receipt of notice of Petition No. S.M.A. 352/93 submitted his own application under Section 295 of the Act wherein he alleged that true facts were concealed by the respondent. He stated inter alia that the deceased had gifted the said house to him. He denied that at a joint meeting of the legal heirs he had relinquished his rights or accepted any amount. The applicant filed affidavit in support of application under Section 295 of the Act and the parlies filed their respective counter affidavit and affidavit in rejoinder. The learned District Judge in the impugned order observed that the question raised by the caveator has to be decided by the Civil Courts as the same required detailed evidence due to the fact that gift deed and relinquishment deed had been denied and disputed by the parties. Accordingly he rejected the application of the caveator and allowed the petition. He further ordered that Letter of administration be issued in favour of the respondent subject to her furnishing security in the sum of Rs. 1,50,000/- (one lac fifty thousand). I have heard Mr. Abdul Khalil learned counsel for the applicant and perused the record. The respondent and her learned counsel were called absent. Learned counsel for the applicant submitted that since the applicant/caveator had raised the contention and dispute regarding the grant of Letter of administration therefore the learned Distinct Judge ought to have treated the petition of the respondent as a regular suit as required under the provision of section 295 of the Act. He further submitted that the impugned order which is based on lack of application of judicial mind is liable to be set aside. In support of his submission the learned counsel cited Ahmed Sadiq Chughtai vs. Badar Bukhat Chughtai (1992 MLD 695). In this judgment the application for grant of Letter of administration was registered as a suit when the matter became contentious between the heirs of the deceased and ultimately on the basis of evidence led by the parties on the issues settled by this Court decree was passed. There is considerable force in the submission of the learned counsel for the applicant. The proceedings becomes contentious when caveat supported by affidavit is filed as had happened in this matter and once the proceedings become contentious it is not open to the Court to decide the matter in a summary manner as was done by the District Judge Karachi East. In that situation the proceedings will not become a regular suit but the petitioner will become the plaintiff and the caveator will be the defendant and as nearly as may be it will take the form of a regular suit and all the incidents of a suit will fasten to such proceedings. Thus keeping in view the provision contained in Section 295 of the Act and the fact and circumstances of the present case I am of the view that the learned District Judge has erred in not following the provisions of Law and the impugned order is legally unsustainable. Accordingly this revision is allowed and the learned District Judge Karachi East is directed to decide the matter afresh according to law. (ZB) Revision accepted.

PL J 1996 Karachi 267 PL J 1996 Karachi 267 Present: abdul hameed dogar, J NOOR KHAN-Appellant versus STATE-Respondent • ?>'' «• ' ""' Crl. Appeal No. 245 of 1993 admitted on 1-8-1995 (i) Delay in FIR- —Murder-Offence of~Conviction for-Challenge to--Delay in lodging FIR-- Effect of-Admittedly by incident took place at 8-00 P.M. and statement of complainant recorded at 11-30 P.M.--Version of appellant that FIR has been lodged with consultation and deliberations and after start of investigation get support from it. [P. 271] A (ii) Divergent Statements- —Murder-Offence of-Conviction for-Challenge to-Complainant has given divergent statements in his examination-in-chief and cross-examination. As such which statement is correct, creates reasonable doubt about sanctity to be attached to FIR. - [P. 271] B (iii) Pakistan Penal Code, 1860 (Act XLV of I860)-- —Ss. 302, 307 and 34--Murder-Offence of-Conviction for-Challenge to- Appreciation of Evidence-Appellant being awarded imprisonment for life and fine whereas two remaining accused were simply punished under sections, 323 PPC-Held: Appellant cannot be convicted on same evidence believing against him and disbelieving against rest of accused. [P.27SF (iv) Right of Private Defence- -—Murder-Offence of-Conviction for-Challenge to-Right of private defence-It is fact that appellant and his father received serious injuries- Incident took place at door of their house-Appellant had genuine apprehension of loss of his life-Held: Presence of four injuries on body of appellant, admission of complainant, finding appellant injured in Hospital and counter case in form of direct complaint, clearly indicate that appellant had acted under right of private defence-Appeal allowed. [P.272]D,E&G PLD 1985 SC 25, NLR 1992 Criminal 576 ref. (v) Two Versions- —-Murder-Offence of-Conviction for-Challenge to-There are two versions of incident-One by prosecution and other by appellant of self defence—It is by now well established that in such a situation, both versions have to be kept in juxta position and one favourable to defence is to be preferred, if it gives some support from admitted facts and circumstances. [P. 271] C Mr. Shaukat Hussain Zubedi, Advocate for Appellant. Mr. SyedAmjadAli Shah, AAG for Respondent. Date of hearing: 1-8-1995. judgment Appellant Noor Khan has through this appeal called in question the judgment dated 7.8.1993, passed by the learned District Judge, Karachi (West), whereby he was convicted and sentenced to suffer RI for life and a fine of Rs. 10,000 in default to suffer further RI for six months under section 302, PPG. He was also directed to pay an amount of Rs. 25.000/- to the heirs of the deceased under the provisions of section 544-A, Cr.P.C. The compensation was ordered to be recovered as an arrear of land revenue and in default of payment or recovery, the appellant shall suffer further imprisonment for six months more. The appellant was provided the benefit of provisions of section 382-B, Cr.P.C. in the computation of his sentence. Gleaning facts of prosecution case are that complainant Sultan lodged FIR No. 56/1990 at PS Pirabad, Karachi on 19.3.1990 under sections 302, 307 & 34, PPC, stating therein that he was residing in the house of his maternal uncle deceased Hajat Khan. His mother Mst. Dil Feroz came to Karachi two months before the incident for attending the marriage of appellant Noor Khan, which was solemnised on 12.1.1990. The complainant's mother sometimes lived in the house of appellant complainant's mother sometimes lived in the house of appellant Noor Khan and sometime in the house of uncle Hajat Khan. Some days prior to the incident, there had occurred a quarrel in between the wife of appellant and mother of complainant. It was alleged that on this account appellant turned out the mother of the complainant on 18.3.1990 and thereafter she started living in the house of Hajat Khan. Deceased Hajat Khan protested to appellant about this shameful conduct and thinking appellant a child, deceased gave him a slap. Mohalla people pacified the matter. Story continues disclosing that on 19.3.1990, while complainant was inside the house and deceased Hajat Khan was coming towards the house from the mosque at 8 p.m. and when he reached near the house of appellant, Noor Khan, the co-accused Mir Samad Khan, Sher Bahadur and appellant Noor Khan were found standing with dandas and chhuri. When they attacked on the person of Hajat Khan, the complainant came out of his house on hearing cries and so also the mother of the complainant. The complainant noticed that appellant Noor Khan was armed with chhuri and rest with dandas were causing injuries to Hajat Khan. On the intervention of complainant and his mother, they were also caused danda blows. In this sequence Hajat Khan fell down. Mohalla people intervened. The complainant also received injuries. Thereafter the complainant removed Hajat Khan in a Suzuki in an injured condition, who succumbed to injuries on the way. The investigation was taken up by SHO Muhammad Younus who taken down the report of the complainant and on the basis of the written report lodged the FIR. SHO prepared mashirnama of the dead-body and an inquest report and obtained the cause of death. After completion or investigation appellant Noor Khan and co-accused Mir Samad Khan and Sher Bahadur were sent up for trial. All the three pleaded no guilty for the charge framed against them under sections 302, 307 & 34, PPC and contested the case. Prosecution examined PW-1 Muhammad Salman, the complainant and nephew of deceased, PW-2 Mst. Dil Feroz, the mother of complainant, PW-3 Muhammad Bashir, the nephew of deceased, PW-4 Sher Ali Khan, the brother of deceased, PW-5 Dr. Jalil Qadir, who issued post-mortem report, PW-6 Dr. Shafi Muhammad Nizamani, who examined injured complainant Muhammad Sultan and his mother PW Mst. Dil Feroz and also appellant Noor Khan and co-accused Mir Samad Khan, PW-7 Qazi Muhammad, the mashir of deadbody and inquest report and PW- ASI Alam Shah, who identified ihe signature of SHO Muhammad Younus (now dead). In a statement under section 342, Cr.P.C. before the trial Court, appellant Noor Khan and co-accused Mir Samad Khan and Sher Bahadur denied the prosecution allegations. According to the statement of appellant Noor Khan, it was deceased Hajat Khan, Sultan, Bashir, Mst. Dil Feroz and Sher Ali who came duly armed with churri, iron bars and wooden patti at their house and caused injuries to him and his father Mir Samad Khan. He and his father were removed to Abbasi Shaheed Hospital where they remained for the night but were not admitted and on the following morning they were taken to Police Station. They insisted for the registration of their case but the same was refused by the police. Subsequently they filed direct complaint No. 128/1990 against the complainant and others which was pending before ACM No. V, Karachi (West). Co-accused Mir Samad Khan and Sher Bahadur gave the same statements as that of appellant Noor Khan before the trial Court. In defence Shahabuddin and Gul Ahmed were examined to support the defence plea. The learned trial Court assessing the evidence recorded at trial, found appellant Noor Khan guilty, convicted and sentenced him as mentioned above, whereas the remaining two co-accused Mir Saniad Khan and Sher Bahadur were found guilty of the charge under section 323, PPC and were fined Rs. 1,000/- each or in default to suffer HI for a period of three months. They both were released after the payment of fine. Mr. Shaukat Hussain Zubedi contended that the trial Court has not appreciated the evidence properly and has relied on the prosecution evidence ignoring without taking into consideration the defence plea of self defence raised by the appellant at the earliest opportunity. There are two versions of this occurrence, one raised by the prosecution and another by the appellant before the trial Court/The version raised by the prosecution was taken into consideration, whereas that of appellant was disbelieved. According to learned counsel the appellant, his father Mir Samad Khan received serious injuries in the same incident at the hands of complainant party who rushed to Abbasi Shaheed Hospital for treatment, from where they were taken by police to police station. Their FIR was not registered and thereafter a direct complaint No. 128/1990 was filed by the appellant's party showing that they had acted in the right of their self defence, mentioning their version of incident. Learned counsel further submits that it was the complainant Sultan, deceased Hajat Khan, Bashir, Mst. Dil Feroz and Sher Ali, who came armed with chhuris and dandas at the house of the appellant and attacked the appellant and his father, causing them serious injuries. As such the appellant, if any, has acted upon in the right of his self defence. According to learned counsel, the appellant and his father were inflicted injuries on their head (vital part) of body, therefore, there was sufficient apprehension of their being killed. Injuries sustained by appellant Noor Khan : 1. Lacerated wound 12cm x 1 cm x skin deep right forehead. 2. Lacerated wound llcm x 1 cm x bone deep ? Left side frontoral region. 3. Contusion 3cm'x 2 cm left upper arm. 4. Contusion 4 cm x 1 cm right fore arm. Mir Samad Khan: 1. L/W l/2cm x l/2cm x skull deep, right little finger. 2. L/W l/2cm x 1 cm bone deep? Right side fore-head. 3. L/W 12cm x 1 cm x bone deep? Right side occipital region. 4. Contusion 2cm x 1cm, left fore arm. Mr. Shaukat Hussain Zubedi argues that the entire evidence led by the prosecution consisted of interested, related inter se and inimical witnesses, lacking any independent corroboration from persons of locality. The FIR admittedly has been lodged on a written report after the investigation had commenced, so it has lost its sanctity. The complainant has not come with clean hands as the fact of receiving injuries by the appellant and his father Mir Samad Khan is suppressed in the FIR. On the point of plea of self defence, learned counsel has cited 1973 SCMR page 26 (C), 1987 SCMR page 1043, NLR 1992 (Criminal) page 576 and 1992 P.Cr.L.J. 1219 (E) and prayed for acquittal of the appellant on the basis of benefit of doubt. Mr. Syed Amjad Ali Shah, the learned AAG submitted that the judgment does not deserve interference as all the witnesses have fully supported the case of prosecution and the learned trial Court has based its findings after the proper appraisal of evidence. In support he has cited 1992 SCMR pages 309 and 1625. Admittedly the incident took place at 8.00 p.m. and the statement of the complainant was recorded by the police in the hospital at 11.30 p.m. The version of the appellant that FIR has been lodged with consultation and deliberations and after the start of investigation, gets support from the above fact. Complainant has given divergent statements in his examination-in-chief and cross-examination before the trial Court regarding the fact of lodging of FIR. In examination-in-chief he says that police came at the hospital and recorded his statement at 11.30 p.m. which was exhibited as Ex.10. In crossexamination he deposes that his first statement was recorded at PS Pirabad at about 11 or 11.30 p.m. in the night. The time in both coincides. As such which statement is correct creates reasonable doubt about the sanctity to be attached to the FIR. The learned trial Court not consider the plea of right of self defence raised by the appellant during the trial mainly because DW failed to support that plea. It is fact that the appellant and his father Mir Samad Khan received serious injuries and too in each case were caused on their fore-heads.' This is supported by PW-6 Dr. Shafi Muhammad Nizamani. Though complainant has suppressed this fact in FIR but he has admitted in his cross-examination that when the complainant party reached Abbasi Shaheed Hospital, they found Noor Khan and Mir Samad Khan with injuries. The complainant and all the other PWs have admitted the fact of counter case lodged by the appellant against them in the form of a direct complaint which also confirms the version of appellant that they were also attacked in the same incident. There are two versions of the incident, one by the prosecution and the other advanced by the appellant raising the plea of right of self defence. It is by now well established that in incident like the one in hand, both the versions have to be kept in juxtaposition and the one favourable to the defence is to be preferred to, if it gives some support from the admitted facts and circumstances of the case and appeals to common sense. The incident admittedly took place at the door of house of appellant and his father, therefore, the version that it was the complainant party which had aggressed and attacked the appellant and his father by coming to their house and appellant had simply retaliated in the exercise of the right of private defence as he was under the state of panic having received serious injuries on the vital part, seems to be somewhat correct. Sections 96 to 100, PPC deal with the right of private defence. "Section 96 : Nothing is an offence which is done in the exercise of the right of private defence." "Section 100 : The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: (i) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (ii) Such an assault as my reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault." Keeping in view the above proposition of law, it is to be seen as to any indication on the record that appellant had genuine apprehension of loss of his life. The presence of four injuries on the body of the appellant supported by the evidence of Dr. Shafi Muhammad Nizamani, the admission of the complainant finding the appellant injured in the hospital and counter case in the form of direct complaint and the fact of complainant admitting in crossexamination that he, Sultan, Bashir, Mst. Dil Feroz and Sher Ali are the accused in the counter case, clearly indicate that the appellant had acted under the right of his private defence of his body felling an apprehension regarding the safely of his person. In the case of Marshal Khan vs. The State (PLD 1985 SC 25), it was observed that in a state of panic where the right of self defence is being exercised, the action on the part of person cannot be measured in golden scale. NLR 1992 (Criminal) 576 fully supports the contentions raised by the appellant. The learned trial Judge in the concluding para of his judgment came to the conclusion that since the murder committed is not premeditated and is result of losing of tamper, the accused is being awarded imprisonment for life and fine. The two remaining accused Mir Samad Khan and Sher Bahadur were not found guilty of the charge of murder and were simply awarded punishment under section 323, PPC. So the appellant cannot be convicted on the same evidence believing against him and disbelieving against the rest of accused. This shows that the learned trial Court had not properly appreciated the evidence while convicting the appellant. In my opinion, the appellant having been attacked by the complainant party, is fully entitled to the benefit of provision of self defence as defined under section 96, PPC and is entitled to acquittal. Consequently his appeal is allowed. The above are the reasons for short order dated 3.8.1995 whereby the appeal was allowed and conviction and sentence against the appellant was set aside. (MYFK) Appeal accepted.

PLJ 1996 Karachi 273 PLJ 1996 Karachi 273 Present: HUSSAIN ADIL KHATRI, J. Mat. SYEDAH FARAH SHAH-Appellant Versus MUHAMMAD SHARIFUDIN aoother-Respondents F.R.A. No. 452 of 1995 dismissed on 7.9.1995. Sind Rented Premises Ordinance, 1979- —S. 16 (2)--Tenant-Ejectnient of-Appeal against-Struck off defence of appellant-Appellant has failed to deposit arrears of rent and also other dues payable by her in terms of order passed u/S. 16 (1), no exception can ~ be taken to order impugned in appeal-Appeal is therefore dismissed in litnine. [P. 274] A Mr. Atta Ullah Khan Advocate for Appellant. Mr. Yousuflqbal Advocate for Respondents. Date of hearing: 7.9.1995. order This appeal is directed against order dated 7.8.1994 passed in Rent Case No. 830/92, whereby the defence of the appellant was struck off by the learned Trial Court under section 16 (2) of the Sindh Rented Premises Ordinance 1979, because of non-compliance of the order dated 1.12.1993, whereby the appellant was directed to deposit the arrears of rent w.e.f. July 1992 to December 1993 at the rate of Rs. 2,000/- per month, within 60 days from the date of the said order and to clear the electricity bills, KMC taxes and Sui Gas bills upto December 1993 within the same period and to deposit future monthly rent w.e.f. July 1994 and on wards on or before 5th of each calendar month at the rate of Rs. 2,000/- per month. It is admitted by the learned counsel for the appellant that the appellant has not deposited the aforesaid arrears of rent or even the future rent and other charges or any part thereof. He submits the agreement executed between the parties not being in consonance with Section 5 (2) of Sindh Rented Premises Ordinance 1979, no relationship of landlord and tenant came to exist between the parties and, therefore, the rent proceeding commenced by respondent No. 1 were corum non judice. The learned counsel has placed reliance on Habib Ahmad v. Liaguat Hussain (PLD 1985 K 741) in which a learned Judge of this Court (as he then was) while interpreting section 5 (1) had observed that under the said such section any agreement by which any premises is to be let out is to be reduced to writing and has further observed that in other words the oral agreement in respect of such transaction would have no legal force and hence would not be permitted to be used as basis for any litigation in respect of any matter including ejectment of the tenant under the ordinance. In the instant case respondent No. 1 had filed the ejectment case pleading that the appellant was her tenant at the aforesaid rate of rent payable in advance before 5th of each English calendar month and that he had failed to pay rent and other charges since July 1992. The appellant in her written statement admitted the tenancy between the parties including quantum of rent and the other charges payable, but took the plea that the rent and other charges were being paid by her regularly and respondent No. 1 having received such payments due upto November 1993 had refused to accept the rent that become due arid payable thereafter with malafide intention. Thus in the pleadings relationship of landlord and tenant and rent and other charges payable were admitted by the appellant unlike the reported case. The authority relied upon by the learned counsel for the appellant in the facts and circumstances of this case is distinguishable. It being an admitted fact that the appellant has failed to deposit I arrear of rent and so also other dues payable by her in terms of the order passed u/s. 16 (1) of the Sindh Rented Premises Ordinance 1979, no exception can be taken to the order impugned in this appeal. The appeal is ! therefore dismissed 'in limine. 1 (2) In view of dismissal of the appeal, this application is dismissed having become infructuous. (A.P.) Appeal dismissed.

PLJ 1996 Karachi 274 PLJ 1996 Karachi 274 Present: HlJSSAIN ADIL KHATRI, J S.M. YOUNUS RIZVI (Late) THROUGH HIS LEGAL HEIRS-- Appellant/tenant versus AFZAL QURESHI-Respondent/Landlord F.R.A. No. 225 of 1994 accepted 7.9.1995, Cantonment Rent Restriction Act, 1963 (XI of 1963)-- —-S. 17(9><8)--Tenant"Ejectnieni of-Appeal against-Strike off defence as tenant had failed to deposit rent-No notice of application under section 17 (9) was ordered to be issued to tenant and application was granted without hearing tenant, in derogation of fundamental principle of law that none is to be condemned unheard-Appeal allowed. [P. 275] A Mr. Nooruddin Sarki, Advocate for Appellant. Respondent in Person. Date of hearing: 7.9.1995. judgment This appeal has been filed under section 24 of the Karachi Cantonment Act 1963 against order dated 2.3.1994 passed by the Addl. Controller of Rent, Clifton Cantonment, Karachi, u,nder section 17 (9) of the Act, whereby the defence of the appellant was struck off and he was ordered to put the respondent in possession of the premises, as the Appellant had failed to deposit the rent in compliance of the order passed by the learned Controller u/S. 17 (8) of the said Act. Briefly the facts are that late S.M. Younus Rizvi was tenant of the house situated on plot No. 10-B, 7th Central Street, Phase II, Defence Housing Authority, Karachi on the monthly rent of Rs. 3,000/-. The respondent filed the rent case against the said tenant on the ground of requirement of the above premises for his personal use. The respondent filed application under the aforesaid section 17 (8) for direction to the tenant to deposit rent in Court. The learned Rent Controller having found that the said tenant had already deposited the rent till December, 1993, in Misc. Rent Case No.' 52/93, directed the said tenant to deposit the rent for the month of January 1994 before 5.2.1994 and continued to deposit future rent before 5th of each succeeding month. When the matter was taken up on 23.2.1994 the respondent filed the application under section 17 (9) of Act, requesting the court of strike off the defence as the tenant had failed to deposit the rent. The learned Rent Controller called for the report from -the Accountant in respect of deposit made by the said tenant and adjourned the case to 2.3.1994 and on that date passed impugned order. It is admitted position that no notice of the application under section 17 (9) was ordered to be issued to the tenant and the above application was granted accordingly without hearing the tenant, in derogation of the fundamental principle of law that none is to be condemned unheard. The respondent who is appearing in person and is an Advocate of this Court, however, has contended that the order under section 17 (.8) directing the tenant to deposit the rent was passed in his presence on 15.1.1994, and, therefore, no further notice was necessaiy to the tenant, when he failed to comply with the order and committed default in payment of rent. Suffice it to say that the above submission of the respondent, overlooks the fact that the learned Rent Controller before exercising jurisdiction under section 17 (9), had to give notice to the tenant to show cause as to why his defence should not be struck off. If the tenant in response to the above notice offers, a valid explanation for non-compliance of the order, in consonance with the principles that have been laid down in judicial pronouncements, the learned Rent Controller has ample power to condone such default in deposit of rent. It is pointed out by the learned counsel for the appellant that the said tenant has expired on 13.3.1994 after prolonged illness. It is further stated that he was hospitalized for a long time before his death. The present appeal therefore has been filed by his'legal representatives. In view of the above this appeal is allowed and impugned order dated 2.3.1994 passed by the learned Rent Controller on the respondent's application under section 17 (9) Cantonment Rent Restriction Act 1963 is hereby recalled. Learned Rent Controller shall decide the above application afresh after notice to the other side. (A.P.) Appeal allowed

PLJ 1996 Karachi 276 (DB) PLJ 1996 Karachi 276 (DB) Present: amanullah abbasi and dr. ghous muhammad, JJ M/s THARPARKAR SUGAR MILLS LTD.--Petitioner versus FEDERATION OF PAKISTAN THROUGH SECRETARY REVENUE DIVISION AND CHAIRMAN CBR, GOVERNMENT OF PAKISTAN, ISLAMABAD and another-Respondentb Constitutional Petition No. D 2269 of 1995, accepted on 7.3.1996 . Per: Amanullah Abbasi, J

' (!) Constitution of Pakistan, 1973-- —-Art. 199-Customs duty and Sales Tax-Exemption from-Contention that SRO No. 484 (D/92 cannot be made applicable to goods which arrived after 30.6.1995-Goods of petitioner arrived on 30.6.1995 and manifest was filed after 30.6.1995 after expiiy of SRO No. 484 (D/92--According to petitioner delay was caused because of political victimization otherwise he was entitled to benefit of SRO 484 (I)/92-Petitioner has submitted that vested rights were created because all contracts were prior to 30.6.1995- Held : Following order of Supreme Court in Petitioner No. 695-L/1996 dated 11.2.1996 High Court orders that machinery in question be released to petitioner on furnishing of indemnity bond to the satisfaction of Collector of Customs-Held Further : Petition may be fixed for regular hearing within three months-Petition partly accepted. [Pp. 280&281] A Per: Dr. Ghous Muhammad, J (ii) Constitution of Pakistan, 1973- —Art. 199-Writ under article 199--Scope of-Contention that petition is pre-mature and warrants dismissal since no Bill of Entry has been filed and no assessment or evaluation thereon has been made by respondents to examine whether in first place petitioner is not entitled to sought exemption-This objection is not tenable-Article 199 of Constitution clearly spells out that High Court in a writ jurisdiction has not only power to pass corrective order by curing a defect in an existing order but it has power to prohibit a functionary from passing an illegal order-In other words High Court under Article 199 has squarely power to pass a " prohibitory "order of restrain" against a threatened action as well-Such interpretation is quite apparent from language employed in Article 199 (1) (a) (i)-Held : Petition is not pre-mature. [P. 287] B Mr. Farogh Naseem, Advocate for Petitioner. Mr. Farooq H. Naek D.A.G. Date of hearing: 7.3.1996 order Amanuilah Abbasi, J.--The petitioner has requested for relief as under :-- "(i) Direct the respondent No. 2 to clear all the goods of the petitioner which are covered by proforma invoices finalised prior to 30.6.1995 and attached as annexures F-3 and F-4 under the notification SRO 484 (I)/92 dated 14.5.1992 and without raising and demand for any duties, taxes or charges. (ii) Strike down the SRO dated 4.10.1995 which has imposed concessionary rate of duty and taxes as also SRO dated 29.10.1995." It is the case of the petitioner that he secured permission from the Govt. of Sindh Department of Industries and Mineral Development vide letter dated 14.12.89 to establish a new Sugar Mill in the District of Tharparkar. The sanction was accorded to establish a Sugar Mill within the territorial limits of Samaro, Kot Ghulam Muhammad and Umar Kot in District Tharparkar with an instal capacity of 4,000/00 tons of Sugar cane crushing per day. The National Development Finance Corporation agreed to finance the project and accorded its acceptance vide letter dated 14.1.1990. It is the case of the petitioner that he was a victim of administrative inefficiencies and development financial institutions. The Govt. of Sindh also revised petitioner's location in a manner to restrict the operation in Kot Ghulam Muhammad vide unilaterially vide letters dated 9.1.1990 and 15.3.1990. The petitioner filed constitutional Petition No. D-343/1991. However, Govt. of Sindh restored the availability of the territorial limit of Kot Ghulam Muhammad vide letter dated 2.6.1990. The investment Corporation of Pakistan another financial institution also conveyed its consent to Finance the petitioner's Project vide letter dated 25.4.1990. Petitioner has further stated that the process of political .victimization increased and without any show cause notice and with intention to withdraw the permission accorded to petitioner to establish Sugar Mill, the establishment of New Sugar Mill was placed in the negative list in Sinch vide letter dated 9.2.1991. In this manner the entire investment in terms of money, time, energy and efforts put by the petitioner into the proposed project was reduced to a naught It is the case of petitioner that despite the ban on establishing Sugar Mill in the Province of Sindh, the department of industries accorded a sanction to establish a fresh Sugar Mill to one Hameer Soomro which confirmed the malafide action to government. The petitioner once again approach .the government in late 1993. The Govt. of Sindh revived its earlier sanctioned dated 14.12.1989 to establish a Sugar Mill vide letter dated 15.12.1993. The petitioner has also mentioned other facts which delayed his project and he wanted to avail the benefit of incentives assured under SRO 484(1) of 1992 dated 14.5.1992 whereunder a complete exemption was granted from all duties and taxes. Relying upon this SRO the petitioner finalized contracts with Foreign Exporters prior to 30.6.1995. However, the delay in opening letters of credit is due to the malafide intention of the National Development Finance Corporation. The respondent No. 1 without a show cause notice withdrew illegally the concession available under SRO 484 (I) of 1992 by another SRO dated 4.10.1995. In terms of this new SRO a limited concession has been made available only for those consignments which have been imported through letters of credit establish prior, to 30.6.1995. It is the case of petitioner that the machinery is lying in bond whereon heavy demurrage has been levied. The respondent No. 1 has imposed a regulatory duty dated 29.10.95 on imports of machinery. According to the petitioner he had acquired vested rights in terms of SRO 484 (I.)/1992 which cannot be withdrawn and Federal Govt. had no power to take away vested rights which" are protacted by the "Protection of economic reforms Act 1992". The present application under Section 39 Rule 1 and 2 R/W Section 151 CPC has been submitted by petitioner requesting that the respondents be directed to release the goods of petitioner in terms.of SRO 484(I)/1992 dated 14.5.1992 as being exempt from all duties and taxes. The respondents have give a different version through counter affidavit of Mr. Ahmed Mujtaba Assistant Collector of Customs Appraisement (Law). In paragraph 11 of the counter affidavit it is stated that SRO 484 (D/92 allows exemption from custom duty and sales tax to machinery imported during the period commencing on 1st December, 1990 and ending on 30.6.1995. This SRO is subject to Section 30 of the Customs Act, 1969 therefore, the value and rate of duty shall be applicable as on the date the manifest is delivered and the bill of entry is filed. It is further staled in paragraph 12 of the counter affidavit that the crucial date for the determination of the value and the rate of duty are the dates when the manifest is delivered or the date when the bill of entiy is filed. All other dates are irrelevant as was evident from the provisions of Section 18. 30 and 31-A of the Customs Act, 1969. In this case the manifest was filed after the expiiy date of SRO 484 (D/92 due to which the petitioner is no more entitled for the benefit of SRO as the conditions thereof were 'iot duly fulfilled. Furthermore no benefit is to be granted to the party as 30.6.95 was declared by the government as working days and normal functions were carried out on the said date. The SRO 484 (D/92 applies to machinery imported during the period commencing from 1st December, 1990 and ending on the 30.6.1995. This SRO is subject to Section 30 of Customs Act, 1969. The value and rate of duty shall be applicable as on the date the manifest is delivered and the bill of entry is filed. The petitioner's machinery for which bill of entry was filed does not qualify for exemption as the relevant conditions in terms of SRO 484 (D/92 were not fulfilled by the petitioner/Importer. The petitioner was entitled to take benefit of SRO 484 (D/92 provided the manifest was delivered and the bill of entry was based upon the manifest was filed on or before 30.6.1995. It is further stated that the vessel arrived on 30.6.1995 and accordingly Import General Manifest was filed after 30.6.1995. Reluctantly, the goods impelled are liable to be released against payment of standard rate of duty/taxes leviable thereon. SRO dated 4.10.1995 allows exemption from Customs duty and sales tax in excess of 25% leviable thereon read with SRO 484 (D/92 dated 14.5.1992. This was the relief allowed by the Govt. for machinery consignments arrived after 30.6.1995. If the goods do not qualify the conditions mentioned in SRO 484 (D/92, the same are liable to be released against payment of leviable duty/taxes and standard rate. Full exemption in terms of SRO 484 (D/92 dated 14.5.1992 cannot be granted as the goods in question arrived after 30.6.1995 (If not being manufactured locally). The learned advocate for the petitioner has submitted that the petitioner had acquired vested rights on the SRO 484 (D/92 dated 14.5.1992 and this concession cannot be withdrawn because petitioner had acted under assurance mentioned in this SRO. Mr. Farogh Naseem, advocate for the petitioner has cited number of decisions wherein in identical circumstances the goods were released subject to furnishing of indemnity bonds to the satisfaction of the Customs Authorities. He has referred to order of Hon'ble Supreme Court in Civil Petition No. 695-L of 1996 dated 11.2.1996 which is as under:-- "The learned counsel states that in a number of similarly placed cases and of identical facts the High Court had directed the release of goods on furnishing of indemnity bond. That being so the goods of the petitioner may also be released on the furnishing of indemnity bond to the satisfaction of the Collector of Customs." He has also referred to order in W.P. No. 1221/95 and W.P. No. 1174/95 the relevant portion of the order dated 8.10.1995 in W.P. No. 1221/95 is as under :-- "In view of the above, ad-interim relief is granted to the petitioner with the direction that machinery be released to the petitioner on furnishing of indemnity bond in terms of SRO No. 484(I)/92 dated 14.5.1992 to the satisfaction of the Collector of Customs Karachi." Similar is the order in W.P. No. 1174/95. The learned advocate for the petitioner has also referred the decisions reported in PLD 1987 Karachi page 63. He has also relied on decision reported in 1993 SCMR page 69. He has also placed reliance on decisions reported in 1986 SCMR page 1917 on point of creation of vested rights. The arguments and contentions of the petitioner and respondents have been examined. According to respondents SRO 484 (D/92 allows exemption from Customs duty and Sales Tax to machinery imported during the period commencing from 1st December 1990 and ending on 30.6.95. The value and rate is determined as on the date the manifest is delivered and bill of entry is filed. This SRO cannot be made applicable to the goods which arrived after 30.6.1995. The goods of petitioner arrived on 30.6.1995 and manifest was filed after 30.6.1995 after the expiiy of SRO 484 (D/92. Accordingly it can be said that benefits of SRO 484 (D/92 were available in all cases where Import General Manifest was filed prior to 30.6.1995 and bill of entry was also submitted before this date. There is a dispute of few days only and according to petitioner delay was caused because of political victimization otherwise he was entitled to benefits of SRO 484(I)/92. The counter affidavit filed by Mr. Ahmed Mujtaba Memon Asstt. Collector Customs mentions that duty is chargeable on standard rate of duty/taxes. It is stated that vessel arrived on 30.6.1995 but it has not been clarified in the affidavit as to how much amount is payable by petitioner. The petitioner wants the machinery for installation as allowed and the respondents want duty/taxes. The amount is not mentioned. The learned advocate for the petitioner has submitted that vested rights were created because all contracts were prior to 30.6.1995. In similar cases to Hon'ble Supreme Court and Lahore High Court. Following the order of Supreme Court in Petition No. 695-L/1995 dated 11.2.1996 we order that the machinery in question be released to the petitioner on furnishing of indemnity bond to the satisfaction of Collector of Customs, Karachi. The petition may be fixed for regular hearing within three months. Dr. Ghous Muhammad, J.--I have gone through the order proposed to be delivered by my learned brother i.e. Amanullah Abbasi J, on the application for interim relief. I quite agree with the conclusion arrived at by my learned brother, however, I would venture to record my own reasons for arriving at the said conclusion because the listed application was argued at some length. 2. The relevant facts for a just disposal of the matter are that the petitioner secured a sanction to set up a sugar mill from the Government of Sindh through letter dated 14.12.1989. It is alleged by the petitioner that the sanction was withdrawn through letter dated 9.2.1991 on the pretext that sugar mills in Sindh were on the negative list. Despite the same the sanction of the petitioner was awarded to some one else. In this respect the petitioner has attached documents marked annexures A-2, B-l and B-3. On these alleged facts the petitioner has tried to forward the case that right from inception the project has been subject to political harassment and victimization. Thereafter the sanction earlier accorded to the petitioner stood revived vide Government of Sindh's letter dated 15.12.1993, while it is also alleged that the financial institutions responsible for according loans to the project of the petitioner's on malafide reasons further delayed the project. 3. It is alleged by the Petitioner that while relying upon S.R.O. 484 (D/92 dated 14.5.1992 (hereafter referred to as "SRO 484"), the petitioner finalised contracts with foreign exporters all prior to 30.6.1995 (as per list enclosed annexure F-3 and F-4) to import plant and machinery which were not locally manufactured, for the purposes of installing the same in the petitioner's sugar mill proposed to be set up in a rural district i.e. Tharparkar. 4. It is alleged by the petitioner that it submitted documents to the concerned financial institutions to establish letters of credit for the purposes of import while moving 29 applications, out of which 25 were submitted to the financial institutions prior to 30.6.1995 and the remaining four were part and parcel of the earlier applications. It is alleged by the petitioner that the financial institutions established letters of credit of 13 applications prior to 30.6.1995, while the remaining letters of credit were opened after the said date. It is alleged by the petition that the delay has been caused due to the harassment caused by the Government as also the mala fide stance of the financial institutions to thwart the petitioner's project. 5. .It is the case of the petitioner that the government through 2 other notifications i.e. S.R.O.--(I)/95 dated 4.10.1995 and S.R.O.--(I)/95 dated 29.10.1995 imposed customs duty and sales tax including regulatory duty to the detriment of the petitioner thus undermining the petitioner's exemption under S.R.O. 484. 6. Mr. Muhammad Farogh Naseem, the learned counsel for the petitioner has contended that the petitioner has acquired a vested right to seek clearance of its imported plant and machinery in issue under S.R.O. 484 since while relying upon the said S.R.O. 484 :-- (i) the petitioner had finalized all the contracts of import of the plant and machinery with the foreign exporters during the pendency of the said S.R.O. 484 i.e. prior to 30.6.1995 and it was immaterial that the goods arrived thereafter ; (ii) the petitioner had established the letters of credit of major portion of the total value of the plant and machinery prior to 30.6.1995, while the subsequent letters of credit which were established after that day were essentially part and parcel of the earlier letters of credit; (iii) delay, if any, was not attributable to the petitioner and the same was due to harassment by the Government and the malafide stance of the financial institutions. In support of this the learned counsel for the petitioners has placed as annexure CM and E-3, which are essentially letters dated 7.12.1993 and 3.5.1994 issued by the Government of Pakistan Finance Division (Investment Wing), confirming that the petitioner's project had been politically victimized and that delay, if any, had been occasioned due to no fault of the sponsor's/petitioner's. 7. Mr. Muhammad Farogh Naseem, the learned counsel for the petitioner in support of his contention that vested rights in the facts of the case have accrued to the petitioner which could not be destroyed or taken away, has relied upon the following :— (i) Associated Trading Co. Ltd. v. C.B.R., (PLD 1987 Karachi 63); (ii) Al Samrez Enterprise v. Federation of Pakistan, (1986 SCMR 1917); (iii) W.P. No. 1174/95 recently filed in the Lahore High Court, Rawalpindi Bench in which interim orders had been passed; (iv) W.P. No. 1221/1995 recently filed in the Lahore High Court, Rawalpindi Bench in which interim orders had been passed; (v) Civil Petition No. 695-L/96 recently filed in the Supreme Court in which also interim orders have been passed ; 8. In further support of his above contention Mr. Muhammad Farogh Naseem has forwarded the proposition that in a fiscal/tax matter once a petition is admitted the courts as a matter of course ought to grant interim relief, since the very fact that the petition has been admitted confirms that the petitioner has made out a prima facie case. In this respect the learned counsel has placed reliance upon :— (i) Inayat Hussain v. Union of India, (1980) 122 ITR 227); (ii) Gulistan Textile Mills v. Federation of Pakistan (1994 P.T.D. 581); (iii) Kamran Industries v. Collector of Customs, (PLD 1996 Karachi 68 at p. 100 M); 9. The learned counsel for the petitioner has further placed reliance upon a number of orders/decisions to state that while granting interim relief in a tax matter the court ought also to consider the convenience of both parties. The court in this regard ought not to put the petitioner on terms which are extremely onerous or which would amount to directly or indirectly making available funds which are part of the disputed amount. The learned counsel stated that if such onerous terms are given the same would be completely against the concept of writ jurisdiction. In regard to this proposition as also by way of illustration as to how in some other tax matters superior courts have granted interim relief, reliance has been placet' upon :— (i) M/s Usman Class Sheet Factories Ltd. v. Assistant Collector Customs, (PLD 196 Dacca 276); (ii) M/s Inter Ocean Cargo Services, Karachi v. Federation of Pakistan, (1992 PTD 1411); (iii) M/s Nasir Flour Mills (Put) Ltd., Karachi v. Federation of Pakistan (1994 PTD 1421); (iv) M/s International Tea traders v. Federation of Pakistan, (1994 PTD 1422); (v) Pakistan Paper Products v. Income Tax Officer, C.P. No. B-1584/92;. (vi) Mansoor Ali v. Federation of Pakistan, C.P No. D- 1044/93; (vii) Abdul Cadir Adam Saedat v. Federation of Pakistan, c.p.no. D-122/93. In the end Mr. Farogh Naseem has pressed that the idea of any interim injunction is to protect the weaker against the stronger (1987 CLC 1322) while in this case the petitioner, as assessee, a tax payer, who has placed reliance upon the Government's exemption has imported plant and machinery for its proposed project while in this case if an interim relief is not accorded great hardship would ensue, millions would be lost, feasibility of the project will be -disturbed, and it is in the interest of all concerned that the interim relief be granted. 10. Mr. Farooq H. Naek, the learned Deputy Attorney General appearing for the Respondents has vehemently opposed the listed application while propounding the following objections :-- (a) the petition is pre-mature as the bills of entry have neither been filed nor any assessment made thereon, while in default whereof it is no possible to determine as to whether the petitioner is entitled to the exemption under S.R.O. 484 and whether the petitioner is able to meet the conditions of the said S.R.O. 484. In this regard he has cited Section 30 of the Customs Act, 1969; (b) Mr. Farooq H. Naek, the learned D.A.G. has further stressed that a person can only be entitled to the benefit of S.R.O. 484 if, inter alia, three important conditions stated therein are fulfilled :-- (i) the proposed plant and machinery to be imported is not locally manufactured; (ii) the imports are made before the cut off dated (i.e. 30.6.1995) spelt out in the S.R.O. 484; (iii) the proposed unit is to be set up in some rural area as stated in Table 1 of S.R.O. 484 ; After spelling out the above conditions the learned D.A.G. has emphatically stressed that the petitioner has not been able to meet any of the conditions listed above in view whereof it is not entitled to the exemption under S.R.O. 484. 11. Mr. Farogh Naseem the learned counsel for the petitioner in his reply to the objections of the learned D.A.G. has stated that the same are not tenable at all in that :-- (a) Article 199 of the Constitution not only envisages an impugned action which has already taken place but also a 'threatened action'. Furthermore, once the C.B.R. has already taken a stance by issuing 2 subsequent notifications in suppression to S.R.O. 484, it would be a complete exercise in futlity to wait for any assessment/order by the Collectorate who would not go against tr e orders of the C.B.R. In this respect reliance has been placed on :-- (i) S. Abdullah & Co. v. Collector of Customs, (PLD 1992 Karachi 258); (ii) Balochistan Textile Mills Ltd. v. C.B.R., (1984 CLC 2192). (b) Also the very fact that the Respondents have filed a counter - affidavit to the main petition in which at various places it had been ategorically stated that the petitioners are not entitled to the benefit under S.R.O. 484, the contention of the D.A.G. that the petition is premature since the department has ^ot taken a decision as to whether or not the petitioner is in fact entitled to the benefit under S.R.O. 484, is completely misplaced; (c) the listed application has to be allowed since although a counter-affidavit to the main petition has been filed, no counter affidavit to the interim application/affidavit has been moved; (d) as regards the objection of the learned D.A.G. that the conditions spelt out in S.R.O. 484 have not been met by the petitioner, Mr. Farogh Naseem stated that this is only an attempt to entangle the court with facts that are neither in issue nor the same can possibly be in dispute in that:-- (i) there is no dispute that the plaint and machinery in issue are not locally manufactured as the same have been confirmed by the letter of C.B.R. dated 14.9.1995 attached as Annexure I. Also in this regard there is no specific denial in the counter affidavit; (ii) there is little doubt that the petitioner's unit is proposed to be set up in a rural area i.e. District Tharparkar. In this respect the petitioner has attached letter of Government of Sindh dated 14.12.1989 and 15.12.1993 attached as Annexures A-2 and C-2 confirming the location, while there is no denial to that extent in the counter-affidavit; (iii) As regards the cut off date argument put forward by the learned D.A.G. the counsel for the petitioner reiterated his argument on the front of vested rights, as summerized in paragraph 6 above. 12. I have gone through the record and analyzed the arguments of both sides. I am of the view that the contention of the learned counsel for the petitioner carries force that once a petition in a tax matter is admitted that ipso facto shows that the petitioner has made out a prima facie case in view whereof interim relief may be granted. As regards as to what would constitute a prima facie case many decisions can be cited for the point that a prima facie case would not necessarily mean something that would definitely succeed but for which something could be said in favour by the petitioner; On this score the case of Inayat Hussain cited above and relied by the counsel for the petitioner is quite relevant. Furthermore, while examining the merits I also feel that there is a prima facie case since in the decision of Associated Trading Company Limited v. C.B.R., cited above it has clearly held that if during the pendency of an exemption notification contracts with foreign exporters are finalized the petitioner acquire a vested right to seek clearance of goods in terms of the said notification. In this respect the 2 orders from the Lahore High Court, Rawalpindi Bench, in W.P. Nos. 1174/95 and 1221/95 relied upon by the counsel for the petitioner are quite relevant as in both cases tin Lahore High Court while construing the same S.R.O. 484 on more, or less iu; > ncal facts has admitted the petition and granted interim relief while pku .».g reliance upon the case of Associated Trading Company. Furthermore 1 have also perused the recent order and Memo of the petition filed in the Supreme Court in Civil Petition No. 695-L/96 touching upon the same S.R.O. 484 where once again on more or less similar facts (i.e. that the contracts of imports have been finalized with the foreign exporters before 30.6.1995 and that some letters of credit have been established before that date and the remaining letters of credit established thereafter are to be construed as part and parcel of the earlier letters of credit), interim relief has been granted by the Hon'ble Supreme Court, despite the judgment in Molasses Trading v. Federation of Pakistan (1993 SCMR 1905), the import of S. 31-A of the Customs Act and that S.R.O. 484 itself spells out that the machinery has to be imported between 1.12.1990 and 30.6.1995. 1 have further been able to place my hands on M/s M. Y. Electronics Industries (Put) Ltd. v. Government of Pakistan, (1994 SCMR 2123) where a full bench of the Honourable Supreme Court while continuing the interim relief has granted leave to examine inter alia, the question as to hether in comparable circumstances the doctrine of legitimate expectations can be invoked. In view of these facts as also because of the reason that the Government of Pakistan, Finance Division (Investment Wing) in 2 letters attached as annexures C-] and E-3 has confirmed that any delay is not attributable to the sponsors/petitioners and that the petitioner's project has been politically victimized, I have come to the conclusion that the petitioner has a prima facie case which warrants further probe and analysis and it would be very unreasonable to deny interim relief in the form of release of goods till disposal of the petition, especially because the petition already stands admitted on this score vide admission orders of another bench dated 17.12.1995. 13. I would now like to deal with the objection of the learned D.A.G. that the petition is pre-mature and warrants dismissal since no bill of entry has been filed and no assessment or evaluation thereon has been made by the Respondents to examine whether in the first place the petitioner is or not entitled to the sought exemption. I am of the view that this objection is not tenable. Article 199 of the Constitution clearly spells out that the High Court in a writ jurisdiction has not only the power to pass a corrective order by curing a defect in an existing order but it also has the power to prohibit a functionary from passing an illegal order. In other words the High Court under Article 199 has squarely the power to pass a prohibitory order of restrain against a threatened action as well. Such interpretation is quite apparent from the language employed in Article 199 (1) (a) (i). Also the Decision reported as «S. Abdullah & Co. and Baluchistan Textiles (cited above) are also quite relevant to build and extend the proposition that once the C.B.R. through a subsequent notification clearly supersedes and over­ rides the exemption so claimed, an attempt to get an assessment on the bill of entry or thereafter pursue the matter in the departmental hierarchy would be an exercise in futility. Furthermore, even in the counter-affidavit the Respondents have clearly taken the stance that the petitioner is not entitled to relief under S.R.O. 484. Accordingly, to say as suggested by the learned D.A.G. that the respondents have yet to decide as to whether the petitioner is entitled to the benefit under S.R.O. 484 is quite unconvincing. To wait for the department to process the bill of entiy and then frame an assessment either on the bill of entiy or in a separate speaking order would unnecessarily delay relief. Even if the petitioner is able to secure a finalisation of the assessment of the bill of entiy it can hardly be envisaged that there will be a real or any chance for petitioner to expect a relief in the departmental hierarchy. The learned D.A.G. has in this regard vehemently relied upon Section 30 of the Customs Act for the proposition that till such time the petitioner is able to seek an assessment on his bill of entry he cannot come to this Court under Article 199. Once again I cannot subscribe to this view as no such interpretation can be borne out from the provisions of the said Section 30. In the present case the petitioner has no doubt filed the bill of entiy containing the requisite declarations in terms of S.R.O. 484 and attached copies to the present petition, but has not secured an assessment on of the said bill of entry. That learned counsel for the petitioner has contended that there is nothing wrong with this course since admittedly through the departmental hierarchy no relief on this score can be sought by the petitioner and getting an assessment on the bill of entry is only a mere formality. To a question from the bench as to what ought to be the amount or value of interim relief in the absence of an assessment on the bill of entry, the learned counsel has pleaded that the same can be determined to the satisfaction of the Collector as the calculation of the duty is not in issue. It is only the applicability or otherwise of S.R.O. 484 that this Court has to decide and knocking the doors of other functionaries in this regard is only an illusory exercise. I am of the view that there is nothing wrong with the course adopted by the petitioner who became aggrieved the moment the subsequent notifications dated 4.10.1995 and 29.10.1995 were issued by the C.B.R. There is every indication that assessment on the bill of entry is a mere formality as is also apparent by the stance taken in the counter affidavit. I accordingly hold that the petition is not pre-mature while in doing so I may also point out that nowhere in the counter affidavit has this objection been taken. The stance taken by the learned D.A.G. in this regard is quite at variance with the stance taken in the counter-affidavit wherein it had been categorically stated that the petitioner is not entitled to relief under S.R.O. 484. 14. The next objection by the learned D.A.G. that it is also a matter of dispute as to whether the plant and machineiy imported by the petitioner are/are not locally manufactured, the same is also prima facie untenable. The petitioner in this regard has attached as Annoxure 1 a copy of a letter by the C.B.R. dated 14.9.1995 confirming that the machineries except diesel generating sets (1,000 KVA) are not locally manufactured and they are to be treated as such. In this regard it may also be stated that this fact has been averred by the petitioner as ground 1 (a) while there is no specific denial in the corresponding contents of the counter affidavit. 15. The last objection of the learned D.A.G. that it is disputed as to whether the proposed site of the unit is in a rural area and not falling under Table 1 of the said S.R.O. 484 is also misplaced. The petitioner has attached as annexure B-l letter by Government of Sindh dated 14.12.1989 confirming location of the preposed sugar mill to be at Samaro/Kot Ghulam Muhammad/Umer Kot in District Tharparkar. At paragraph 2 of the Memo . of the petition this fact has been alleged which has been admitted in the corresponding paragraph 4 of the counter affidavit. Prima facie the fact that the proposed unit of the petitioner falls in a rural area and does not fall in any of the areas mentioned in Table 1 of S.R.O. 484 is quite apparent. 16. The question which warrants consideration is as to what should be the terms given to the petitioner while granting them interim relief. The learned counsel for the petitioner has submitted that the court ought to take judicial notice of the fact that it is very onerous for the assessee to arrange a bank guarantee since the same can only be arranged by coming up with a 100% cash margin or collateral. This argument of the learned counsel for the petitioner carries force since there are decisions of our owner superior courts (including PLD 1968 Dacca 276) wherein it has been held that any appeal to a departmental hierarchy conditional upon deposit of the outstanding amount is not an efficacious remedy and the assessee can directly approach the High Court in a Writ Petition. Applying the same analogy I feel that the courts while granting interim relief in a tax matter ought to .consider that it would be completely against the concept of writ jurisdiction to give such terms to the assessee which would amount to directly or indirectly depositing the demand amount. If the assessee is an identificable person and also holds assets it can be asked not to sell or dispose of that property whereon some lien or charge can be created or otherwise the assessee can be asked to arrange an insurance guarantee to the satisfaction of Nazir of the Court according to the directions given by the Hon'ble Supreme Court in Trustees of Port of Karachi v. Manzoor Sons Corporation (1993 SCMR 69). I have al-so noticed that in income tax matters since the assessees are associated with the exchequar not only in a one-off transaction the courts have been willing to grant unconditional stays. In the end a lot would depend upon the facts and nature of each individual case and the above are only some guidelines. Although I was inclined to direct release of goods upon submission of an insurance guarantpe to the satisfaction of Nazir and/or upon an undertaking of the petitioners that till disposal of the petition the factoiy shall not be sold, however, in identical petitions the Lahore High Court in W.P. No. 1174/95 and W.P. No. 1221/95 has granted an interim relief by directing the Respondents to release goods in terms of S.R.O. 484 bject to the petitioner furnishing an idemnity bond for the disputed amount. Interestingly, in another identical matter the Lahore High Court directed the petitioner to submit a bank guarantee instead of indemnity bond while on appeal in that matter the Supreme Court through order dated 11.2.1996 in Civil Petition No. 695-L/96 modified the order of the Lahore High Court and directed release of goods on furnishing of indemnity bond to the satisfaction of Collector of Customs. 17. As the Honourable Supreme Court has already taken the view on a similar matter we feel bound to offer the petitioner the same terms. It would not be out of point to cite Ashique Hussain v. The State (PLD 1994 SC 879) wherein a full bench of the Supreme Court has sternly admonished the courts below the follow the decisions of the Supreme Court. Accordingly the respondents are directed to release the goods of the petitioners as per list 'nclosed as annexure F-3 and F-4 (i.e. for goods where contracts are finalized prior to 30.6.1995) of the petition in terms of S.R.O 484 (D/92 dated 14.5.1992 upon the petitioner submitting an idemnity bond to the satisfaction of the Collector of Customs. In view of the delay occasioned in disposing of the listed interim application we direct the Collector of Customs to comply with the instant order as expeditiously as possible without any further delay. 18. Before parting, it is needless to mention that the observation herein above are tentative. ORDER OF THE COURT. Application under Order 39 rule 1 & 2 r/w Section 151 CPC (C.M.A. No. 5039/95) is allowed in the terms and to the extent indicated below. (a) The respondents are directed to release the goods of the petitioners as per list enclosed as annexure F-3 and F-4 (i.e. for goods where contracts are finalized prior to 30.6.1995) of the petition in terms of S.R.O. 484 (I)/92 dated 14.5.1992 upon the petitioner submitting an indemnity bond to the satisfaction of the Collector of Customs. In view of the delay occasioned in disposing of the list interim application we direct the Collector of Customs to comply with the instant order as expeditiously as possible without any further delay. (b) The office is directed to fix the matter for regular hearing within three months hereof. (K.K.F). Petition partly accepted

PLJ 1996 Karachi 290 PLJ 1996 Karachi 290 Present: rasheed ahmed rizvi, J. NASIM NAJMI-Plaintiff versus PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI, and 2 others-Defendants C.M.A. No. 210 of 1994, in Suit No. 274 of 1994, accepted oh (Date not given). Civil Procedure Code, 1908 (Act V of 1908)-- —-O.XXXIX Rr. 1 & 2-Demolition of construction-Notice of~Challenge to- Temporary injunction-Grant of-Prayer for~Executive Board of Defence Housing Authority is authorised under Article 18 of Pakistan Defence Officers Housing Authority Order, 1980 (P.O 7 of 1980) to cancel any allotment, transfer, licence or lease of plot or house etc. if licensee or lessee fails to pay dues or instalments and development charges but is not authorised for determination of lease or resumption of land in case of violation of building plan for construction-Held: Impugned notices issued by defendants are not in accordance with law and plaintiff has fulfilled condition of establishing a prima facie case-Held further: If interim injunction is not granted to plaintiff, he will suffer irreparable loss and balance of convenience also lies in his favour-Injunction granted. [Pp. 292,293 & 294] A, B & C PLD 1987 SC 545 re/. Mr. Abid S. Zuberi, Advocate, for Plaintiff. Mr. Nazar Hussain Dhoon, Advocate, for Defendants. Date of hearing: Nil. order This is an application filed by the plaintiff under Order XXXIX Rules 1 & 2 CPC read with section 151 CPC (CMA No. 2108/94) praying for interim injunction against the defendant No. 1 restraining them from cancelling the "C" lease, resuming the plot and from demolishing the construction raised on the plat bearing No. 8-C, Stadium Lane No. 4, Defence Housing Authority, Phase-V, Karachi and measuring 200 sq. yds. (hereinafter referred to as the property in question). In this application, the plaintiff has further prayed for interim injunction restraining defendants Nos. 1 and 2, namely, Defence Housing Authority and Clifton Cantonment Board from demolishing the construction or from dispossessing the plaintiff from the property in question. 2. The relevant facts for the disposal of this application are that the plaintiff is the owner of the property in question which is commercial in its character and holds registered lease deed dated 1.1.1987 ("C" lease). The plaintiff has raised construction of commercial nature on the property in question after obtaining approved building plan from the defendants Nos. 1 and 2 which consisted of ground plus mezzanine floor plus three storeys. 3. The controversy as alleged in this suit, for the first time arose in the month of June, 1992 when the defendant No. 1 wrote to the defendant No. 2 point out unauthorised construction allegedly raised by the plaintiff on the property in question. Again in January, 1993 the defendant No. 1 pointed out the alleged unauthorised construction of he plaintiff to the "defendant No. 2. However, the defendant No. 1 on or about 27.4.1993 issued a show cause notice to the plaintiff (Annexure "H" to the plaint) directing him to stop the unauthorised work on the site and to rectify the violation carried out till then and as indicated in the said letter. The unauthorised construction as pointed out in the said letter was mentioned as "constructed excessive projections and excessive covered area which is not approved in building plan." Therefore, on or about 4th July, 1993 the defendant No. 2 also issued notice to the plaintiff under section 256 of the Cantonment Act, 1924 calling upon the plaintiff to demolish and remove the unauthorised construction, otherwise the same would be demolished within 15 days by the Cantonments Board. In these circumstances, the plaintiff has filed this suit for declaration and permanent injunction. 4. I have heard Mr. Abid Zuberi, advocate on behalf of the plaintiff and Mr. Nazar Hussain Dhoon, Advocate for the defendant No. 1. The defendant No. 2, namely, Cantonment Board despite service has chosen not to file any counter affidavit or written statement. Accordingly, on 12.9.19^4 learned Additional Registrar (O.S.) debarred the defendant No. 2 from appearing and defending the above suit. Mr. Abid Zuberi has contended that ' he letter dated 27,4.1993 issued by the defendant is illegal, unauthorised as well as mala fide inasmuch as the defendant No. 1 has no authority to determine and resume "C" lease by taking over the physical possession of the plot in land. This proposition has been vehemently disputed by Mr. Nazar Hussain Dhoon. 5. The "C" lease under reference was executed on 1st January, 1987 by the Military Estate Office, Karachi Circle, on behalf of the President of Pakistan in favour of the plaintiff which will expire on 14.7.2055. This document has not been denied by either of the defendants. According to the covenants the lessee (plaintiff) is required to pay all municipal taxes, dues and charges from time to time and is also required to pay all the development charges and other dues as may be demanded from time to time by the Authority. The Authority has been defined in this lease agreement as Pakistan Defence Officers Housing Authority, Karachi. According to clause 5(,b), the lessee is also required to "comply with and observe all the rules and bye-laws of the local authority incharge of the area." The conditions for determination or resuming the lease property is mentioned in clause 7 which authorises the lessor, namely, the President of Pakistan to determine the lease and to enter upon the suit plot irrespective whether any building, erection, building materials or the like is standing thereon if the lessee commits any breach of the conditions of the lease. The covenants of this "C" lease clearly indicate that the only authority entitled in law to determine the lease or to resume the land is the lessor who is the President of Pakistan or his delegat.ee which in the instant case is Military Estate Office. Therefore, in my view the defendant No. 1 is neither authorised nor competent to take any ction for the determination of the "C" lease or for resumption of plot as threatened by/them/i/icfe their letter dated 27.4.1993. 6. In somewhat similar circumstances, a learned Division Bench of this Court in the case of Muhammad Arshad Jalil vs. Pakistan Officers Housing Authority and others (PLD 1992 Karachi 304) considered the implication of Article 17 Of Order 7 of 1980 and held that this Article does not extend any power to the defendant No. 1 for the cancellation of lease or grant of lands which are deemed to have been executed or granted by the Authority under clause "C" to the Article 17 of the said Order. The same principle was again reiterated by the same Bench in the case of Mustafa iMkhani Advocate vs, Pakistan Defence Officers Housing Authority (1994 MLD777). 7. It is pertinent to note that Article 18 of the President's Order 7 of 1980 empowers the Executive Board to run the affairs of P.D.O.H.A. The said Executive Board is consisted of Corps Commander posted at Karachi as its President and one Naval Officer of Air Force not below the rank of Commodore, a serving Officer of Air Force not below the rank of Air Commodore and a serving Army Officer not below the rank of Protector, the Administrator and co-opted members to be appointed by the Executive Board. Any allotment, transfer, licence or lease issued in respect of any plot is to be cancelled by this Executive Board, in case if the allottee, transferee, licensee or lessee fails to pay the dues or instalment including the -—. development charges. The Executive Board is further authorised under this Article to resume the land in special case, if the dues are not paid within six months from the date of demand in writing. 8. Mr. Abid Zuberi, Advocate for the plaintiff in support of his contention, that the defendants are not entitled in law to finally determine the lease and for resumption of land, has relied upon the case of Af. Ghani v, M.A. Mullick & Brothers and 3 others (1973 SCMR 90j wherein the Honable Supreme Court of Pakistan refused to grant leave to the petitioner who was a landlord against the tenant, who was respondent No. 1, on the grounds that "until and unless the tenant was rejected in due process of law he had right to be on premises and he could not be evicted by the Assistant Registrar." Their lordships observed that the arguments of the learned Counsel of the petitioner, in the reported case, that the tenant/respondent was a defaulter, therefore, such tenant had no legal or moral right to be on property, as "untenable". Mr. Abid Zuberi has also referred to the case of Hqji Yaqoob Khan v. Murree Cantonment Board, Murree (1987 CLC 108) in support of his contention that the defendants are not entitled to resume the land and to cancel the "C" lease. 9. The Executive Board of the Defence Housing Authority is authorised vide Article 18 of the Pakistan Defence Officers ousing Authority Order, 1980 to cancel any allotment, transfer, licence or lease in respect of any plot, house, project or scheme inc case, if such allottee, transferee, licensee or lessee fails to pay the dues or instalments and development charges within six months from the date of receipt of the demand in writing from the Authority. The Executive Board is further authorised to extend the time for payment of such dues. There is no other condition provided in this Order, 1980 authorising the D.H.A. to determine the lease except in case of non-payment of dues. The powers, duties and functions of the Executive Board have been defined in Article 9(2) (viii) of the Order, 1980 which authorises the Executive Board to cancel any housing unit in a plan, housing project or ir the scheme, in case of default of payment of instalment or on violation of such condition of project or scheme, The terms "project" and "scheme" have been defined in Article 2 (f) and (in) of the Order, 1980 respectively. If Article 9 (viii) is read with the two definition clauses as mentioned earlier it would indicate that sub-clause (viii) to Article 9 of the Order 1980 empowers the Executive Board to cancel allotment of a housing unit in case of default in payment of instalments only and not for determination of lease or resumption of land in case of violation of the building plan for construction. 10. Mr. Nazar Hussain Dhoon has referred to the case of Pakistan International Airlines Corporation vs. Messrs Hazir (Pvt.) Limited and another (PLD 1993 Karachi 190) to support his contention that the working of statutory corporation should not ordinarily be interfered with lightly unless it is shown that some illegality, mala fides or fraud was committed. He has also contended that an injunction is to be granted when all the three ingredients are fulfilled and not merely on the basis of existence of a prima facie case. There is no cavil to the proposition of law that a plaintiff must show that all the three ingredients exist before obtaining an interim injunction against the defendants. (For further reference, see the cases of Marghub Siddiqi vs. Hamid Ahmad Khan (1974 SCMR 519), Zeenat Begum and another v. Jan Mir Khan and 8 others (1986 CLC 2923) and Hqji Khan and another v. Government ofSindh and others (1990 MLD 155). 11. Mr. Abid Zuberi has also contended that the powers to approve building plans for construction and to revoke or cancel the same is with the Clifton Cantonment Board and not with the D.H.A. He has referred to Chapter IX of the Cantonment Act, 1924. Section 178-A of the Cantonment Act, 1924 prohibits all persons from erecting or re-erecting on any land in a Cantonment except with the previous sanction of the Cantonment Board. Section 184 of the Act, 1924 provides for punishment of fine extending to Rs. 500/- in case if any one begins, continues or completes erection or reerection of a building without complying sections 179 and 180 or section 181(1) of the Cantonment Act, 1924,, or in case sanction of the building plan is refused or ceased to exist. In section 185 of the Act 1924, the Board is further authorised to direct the demolition or to direct alteration of any building, part thereof so erected or erected after issuing notice to the owner, lessee or occupier. In reply to this argument of the learned Counsel for the plaintiff, Mr. Nazar Hussain Dhoon, learned Counsel for the D.HA. has referred to Article 24(2) of the Order 1980, to canvas that the Clifton Cantonment Board is subject to the provisions of the President's Order 7 of 1980. No doubt, sub-clause (2) to Article 24 of the Order 1980 shows that the two cantonment boards bifurcated under this provision, the provisions of Cantonment Act, 1924, shall apply to them subject to the provisions of the Order, 1980. But interestingly there is no provision in the President's Order 7 of 1980 which empowers the D.H.A. to approve, grant or cancel the building construction plan as provided in Chapter XI of the Cantonment Act, 1924. Mr. Nazar Hussain Dhoon has also referred to the case of Hawa Bai v. Haji Ahmad and another (1987 CLC 558) to support his contention that where the construction plan was duly approved by the authority concerned the injunction as prayed in the suit cannot be granted. The facts of this reported case are quite different room the facts of the present case. In the present suit, the plaintiff has challenged the authority of the defendant No. 1 to issue impugned notices. In the reported case, the plaintiff has relied upon the regulations of Karachi Building Control Authority while in the present case provisions of President's Order, 1980 and Cantonment Act, 1924 are involved. 12. The result of the above discussion is that I am of the tentative view that the ,two itmpugned notices issued by the D.HA. and Clifton Cantonment Board are not in accordance with law and therefore, the plaintiff has fulfilled the condition of establishing a prima facie case. I am also of the tentative view that iin case if an interim injunction is not granted to the plaintiff and if the defendants are allowed to act upon the impugned notices it would be the plaintiff who will suffer irreparable loss and injury. The balance of convenience is also in favour of granting this application. (Please see the case of Ismail Brothers vs. Kaval Ram (PLD 1987 SC 545). 13. ie view of the above cited law and facts, I hereby grant interim injunction in the following manners: - (i) The Pakistan Defence Officers Housing Authority is restrained from cancelling, determining the "C" lease existing in favour of the plaintiff in respect of property in question till disposal of the suit. (ii) The defendants No. 1 and 2 are restrained form demolishing the construction raised by the plaintiff on the property in question and from dispossessing the plaintiff till disposal of the suit. 14. However, the above interim order in the nature of prohibitory injunction, in no manner shall restrain the defendant No. 2, namely, Clifton Cantonment Board from proceeding in a lawful manner against the plaintiff. 15. C.M.A. No. 2108/94 stands disposed of i-n view of the above observations. (ZB) Application accepted.

PLJ 1996 Karachi 295 PLJ 1996 Karachi 295 Present : rana bhagwan das, J. MUHAMMAD ARIFUDDIN-Petitioner versus Mst. MUJEEBUN NISA and 3 others-Respondents Const. Petition No. S-108 of 1994, dismissed on 29.1.1996. (i) Family Courts Act, 1964- —S. 14-Maintenance-Suit for~Order closing defendant's evidence- Challenge to-Whether order closing evidence is a decision appealable under section 14 of Act-Question of-On perusal of impugned order it seems that it does not determine rights of parties inter se and is incidental and ancillary in its nature regulating procedure of court for trial of suit for maintenance-Held: Since suit for maintenance is still pending decision, it cannot be held that impugned order is final and appealable before District Court or subject to judicial scrutiny in constitutional jurisdiction. [P. 296] A (ii) Interlocutory Order- -—Maintenance-Suit for—Order closing defendant's side-Challenge to-­ Large number of opportunities was provided to petitioner-He was given a last chance subject to payment of costs-Trial Court cannot be said to • have acted without jurisdiction, in excess of authority pr in contravention - of settled principles of law-Held: Having held that order passed was interlocutory in nature and did not decide rights and obligations of parties finally, view taken by District Judge that appeal was incompetent, cannot be held to be arbitrary or against provision of law as suit is pending decision for last about five years and no decree has been passed- Petition dismissed. [Pp. 296,298 & 300] A, B & C S. Muhammad Akhtar, Advocate, for Petitioner. Mr. Attaullah Khan, Advocate, for Respondents. Date of hearing: 29.1.1996. judgment By this petition, 'the petitioner, defendant in Family Suit No. 915/1991, for maintenance of respondent No. 1 and her minor child respondent No. 2 seeks remedy against interlocutory order dated 7.8.1994 passed by Family Court No. VIII Karachi-East and order dated 22.9.1994 passed in appeal by District Judge, Karachi-East declining to set-aside the order dated 20.4.1994 closing the side of the petitioner on his failure to appear for evidence and to produce any witness in support of his defence in the aforesaid suit pending decision. 16 days after the order as aforesaid petitioner/defendant moved an application under section 11(3) of the Family Courts Act, 1964 (hereinafter referred to as Act 1964) for recalling the said order which was strenuously contested by both the respondents. By order dated 27.8.1994 his application for recalling the earlier order was dismissed which was challenged in Family Appeal No. Nil of 1994 before the District Judge Karachi-East but without any success vide order dated 22.9.1994, hence this petition. 2. First question for consideration in this petition is whether the order dated 27.8.1994 is a decision within the meaning of the term and thus appealable under section 14 of the Act, 1964. On perusal of the impugned order it seems that the order does not determine the rights of the parties inter se and is incidental and ancillary in its nature regulating the procedure of the court for trial of the suit for maintenance. Since the suit brought by respondents No.. 1 and 2 in 1991 is still pending decision, it cannot be held that the order has attained finality so as to render it appealable before the District Court or subject to judicial scrutiny by this Court in the exercise of constitutional jurisdiction. 3. Section 14 of the Act, 1964 providing for appeal permits appeal only against the "decision given' or "decree passed" by a Family Court. While a decree finally adjudicates rights of the parties inter se word "decision" used in the Act 1964 has not been judicially defined in the Act itself. Its dictionary meaning my therefore be taken into consideration for determination of the question involved. 4. According to-Chambers 20th Century Dictionary New edition 1983 "decision" means "the act or product of deciding: settlement: judgment; the quality of being decided in character." 5. According to Black's Law Dictionary, sixth edition 1891-1991 decision means "a determination arrived at after consideration of facts, and in legal context, law. A popular rather than technical or legal word; a comprehensive term having not fixed, legal meaning. It may be employed as referring to ministerial acts as well as to those that are judicial or of a judicial character. A determination of a judicial or quasi judicial nature. A judgment, decree, or order pronounced by a court in settlement of controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. And though some times limited to the sense of judgment, the terms is at other times understood as meaning simply the first step leading to a judgment; or as an order for judgment. The word may also include various rulings, as well as orders, including agency and commission orders. The findings of fact and conclusions of law which must be in writing and filed with the clerk. 6. According to Black's Law Dictionary "Final Decision" means . One which leaves nothing open to further dispute and which sets at rest cause of action between parties. One which settles rights of parties respecting the subject matter of the suit and which concludes them until it is reversed or set aside." 7. As per Aiyar's Judicial Dictionaiy, 10th edition 1988 the word "Decision" has been defined as under: "The expression "decision" has a wide connotation. Whenever a question is determined, or a judgment is rended, or a conclusion is arrived at, after weighing the reasons for and against the proposition, it is a decision. In the civil law generally it means the determination of a question, the final order which disposes of a suit or cause; also that portion of a statute which orders or directs the performance of a duty Under some circumstances "decision" has been held equivalent to, or synonymous with "ascertainment". (See 6 CJS 788 Note 35; "award", see 7 CJS 1311, Note 57 ; and "order" See Gangadhar Lalliram vs. riruachan Mhihari (AIR 1971 M.P. 16 (28)D.B.--The word "decision" means the determination of a question or controversy and not the reasons or grounds which weigh with the Court in arriving at such decision." 8. With reference to the essence of decision and in the light of Estate of Orissa v. Sudhansu Sekhar Misra (1968 2 SCJ 236), the author says what is essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract the sentence here and there from a judgment and to build upon it 9. From the definition given in different dictionaries it follows that each and every order passed by a court of law would not amount to a decision. At any rate orders regulating the mode of proceedings before the court and not deciding the rights and obligations of the parties finally cannot be treated as "decision given" amenable to an appeal. For instance an order adjourning the hearing of a suit, an order to refuse to adjourn a suit, an order refusing to summon a witness or an order admitting a document beyond the period fixed by the court may not fall within the ambit of word 'decision given." On the other hand an interim order transferring custody of a minor making a provision for interim maintenance for the wife or a child may be tre ted as decision for the purpose of scrutiny by a court of appeal. In the present case a large number of opportunities was provided to the petitioner, he being given a last chance and having contemptuous disregard for payment of costs of Rs. 100/- subject to which on earlier occasion adjournment was granted prima facie the trial court cannot be said to have acted without jurisdiction, in excess of authority or in contravention of the settled principles of law. Having however held that the order passed was - interlocutory an nature and did not decide the rights and obligations of the parties finally the view taken by the learned District Judge that the appeal from the impugned order was incompetent cannot be held to be arbitrary or against the provision of law as the suit is pending decision for the last about five years and no decree has been passed. It would therefore be open to the appellant to agitate this issue in the appeal from the final decree, if still aggrieved. 10. Preamble of Act 1964 tends to show that Family Courts were established in order to achieve the object of expeditious settlement and disposal of disputes relativity to marriage and family affairs or matters connected therewith. Very purpose of enactment of Act shall be frustrated if each and every order passed by a family court is allowed to be appealed from and the order called into question in writ jurisdiction before the High Court. Observation of the trial Court that the petitioner had been adopting delaying tactics, in • my view cannot be completely overlooked and if the purpose behind appealing from the impugned order and invoking writ jurisdiction of this court from the original as well appellate courts order is to create harassment for the wife and her minor child, the course adopted can only be depreciated by discouraging such uncalled for litigation. 11. I am fortified in this view by a Division Bench judgment of the Lahore High Court authorised by Muhammad Afzal Zullah, J. (as his Lordship then was) in the case reported asAmanullah vs. Mukhtar Ahmed Khokhar (1979 CLC 199). Explaining the object of West Pakistan Urban Rent Restriction Ordinance, it was held that the objection behind the legislation contained in the Ordinance was to ensure quick disposal of cases relating to disputes between the landlord and tenant. If every order passed by a Rent Controller, during hearing of the case, is allowed to be challenged by .means of a writ petition, it might not only amount to abuse of constitutional jurisdiction but would also defeat the purpose for which the Ordinance was enacted. 12. In the case reported as Mqjor All Hussain Sirqj vt. Mst. Shahzadi Bukht Shams (PLD 1977 Karachi 764) a Division Bench of this court dealing with constitutional petition from an order passed by the Family Court allowing procedural amendment of plaint in a suit for recovery of dower took the view that the scheme of Act showed that it is not the ntention of the Legislature to non-suit the parties on technical grounds for neither CPC (except Sections 10 & 11) nor Evidence Act apply to proceedings efore it Speaking for the Division Bench Mr. Fakhruddin G. Ebrahim, J. (as he then was) expressed the view that the court was left ith the impression that the purpose of the petition was to harass the respondent lady and to delay her suit and directed against the innocuous interlocutory order, which was dismissed with special costs of Rs. 200/-. 13. There is yet another case decided by a learned Single Judge of this Court reported as Maqsood All vs. Soofia Noushaba (1986 CLC 620) in which the purpose and scope of Act 1964 was explained at length with reference to various provisions. Dealing with the order relating to execution of a decree passed by a Family Court it was observed as under- "A perusal of the various provisions of the Act shows, that sub section (1) of section 14 the Act provides only for one appeal against a decision or decree of the Family Court Sub­ section (2) of that section even goes to make certain decree? passed by the said Court non-appealable. The intention of the legislature, therefore, clearly seems to be to reduce further litigation in matters triable by the Family Court specially in case of orders of interlocutory nature. Further, according to section 17 of the Act the application of the C.P.C. to the proceedings under the Act is completely barred except sections 10 and 11 of the CPC. The intention of Legislature, therefore, clearly seems to be that every decision given or decree passed by the Family Court should ••• not be made appealable and also liable to be carried to the High Court under section 115 of the C.P.C." 14. Even in section 115 CPC which provides for a revision before the High Court in respect of a "case decided" by a subordinate court and in which no appeal lies, the view taken by superior courts from time to time manifests that each and every order passed by a subordinate court cannot be termed "case decided". 15. In Habibullah us. Pak Cement Industries Ltd. (1968 SMCR 864) where the subordinate court had permitted the admission of document not included in the list of documents relied upon before framing of issues, Honourable Supreme Court upheld the view taken by the High Court that the order permitting the respondents to place certain documents did not constitute a "case decided" within section 115 CPC. In Ahmed Din vs. Australia Bank Limited (1971 SCMR 507) order allowing amendment of plaint was held as not a "case decided" and not amenable to revisional jurisdiction of the High Court. In Amtul Rasool vs. Ghulam Rasool (1974 SCMR 532) an order rejecting an application under Order XIX rule 1 & 2 C.P.C. by executing Court was held as not "a case decided" and thus not revisable by the High Court under section 115 C.P.C. 16. In S.H.M. Rizvi 's. Maqsood Ahmed (PLD 1981 S.C. 612) dealing with the word "final order" in the context of Service Tribunal Act, 1973, Hon'ble Supreme Court ruled that a final order has the distinction of determining the rights of the parties. Where any further step is necessaiy to perfect order, the order cannot be taken to be final. Their Lordships went on observing that an order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal, etc. 17. Learned counsel for the petitioner realising the weakness of his case relied upon a Lahore judgment reported as Muhammad Javed Khan vs. Mst. Noshin Bhatti & another (1991 CLC 1262) but this case does not improve the case of the petitioner and is of no assistance to him in view of entirely distinguishable of features. 18. For the aforesaid discussion, there is no merit in this petition which is without any substance. It is accordingly dismissed. Since the proceedings in the trial court were stayed by this Court on the stay pplication moved by the petitioner, trial Court shall take steps for early decision of this suit strictly in accordance with law and without unreasonable delay. (ZB) Petition dismissed,

PLJ 1996 Karachi 301 PLJ 1996 Karachi 301 Present: hamid ALI mirza, J. SPECTRUM COMMUNICATIONS LTD.-Appellant versus Mrs. NASIM BASHIR-Respondent F.R.A. No. 110 of 1988, dismissed on 25.9.1995. (I) Civil Procedure Code, 1908 (Act V of 1908)-- -"-O.XLI R. 27 read with Sindh Rented Premises Ordinance, 1979, section 21 ; -Tenant--Ejectment of--Order of--Challenge to--Application for permission to produce additional evidence-After disposal of ejectment application, appellant's Managing Director made enquiries in respect of whereabouts of respondent's husband at Dubai—There is no reason shown as to why such attempt was not made earlier-Said trip and discovery of new evidence after disposal of ejectment case, would not fall within purview of substantial cause or would not be in interest of justice no one could be permitted to fill up lacuna left by one party to disadvantage of other party-Held: Discovery of fresh evidence at later stage is no ground for permitting additional evidence at appellate stage as such evidence was not refused by Rent Controller-Held further: High Court would not require said photostat copies of documents to be brought as additional evidence for pronouncement of judgment as it would not come within purview of Rule 27 of Order XLI C.P.C.-Application for additional evidence dismissed. [Pp. 306,307,308 & 309 ] A, B & C (ii> Personal Need- —Tenant-Ejectment of-Order of-Challenge to-Mere fact that espondent's husband got temporary employment in Dubai, would not, itself, disentitle her from seeking eviction of appellant under law-­ Landlady cannot be deprived of her own property when she has proved her bonafide neetl-If she uses said premises other than for her personal bonaftde heed, appellant could resort to remedy provided under section 15(a) of Sindh Rented Premises Ordinance, 1979-Held: On appraisal of evidence on record and case law, it could be said that respondent/landlady has proved bonafide requirement in respect of premises in dispute-Appeal dismissed. [Pp. 309 & 312 ] D, E & F Mr. Khalid Anwar, Advocate, for Appellant. Mr. Mumtaz Ahmad Shaikh, Advocate, for Respondent. Date of hearing: 25.9.1995. Judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance (hereinafter called Rent Ordinance) directed against an order ailed 6.1.1988 in Rent Case No. 1053/85 Mrs. Nasim Bashir vs. Spectrum Communication Limited whereby eviction application filed by the respondent/landlady was allowed on the ground of personal bona fide need and the appellant/tenant was directed to vacate the premises within 60 days from the date of impugned judgment, hence the present appeal. Brief facts of the case are that the respondent/landlady filed ejectment application against the appellant/tenant in respect of properly bearing No. 42/1-S/6, PECHS, Karachi, on the ground that appellant/tenant has carried out certain alterations in the tenement and thereby has damaged her property and that she required the said property for her use and for the use of her family in good faith as the contract of the respondent's husband in respect of his employment at Dubai has expired therefore the respondent with her family has shifted to Pakistan for permanent settlement. It was also stated that the respondent with her family was temporary residing in the flat owned by the brother of respondent's husband where they have been provided only one room. The appellant/tenant filed written statement stating therein that the structural alterations were carried out in the premises with the valid permission of the respondent and that the respondent's husband has got other better houses to live and the requirement was not bona fide and the object of the ejectment application was to get enhancement of rent. On the pleadings of parties the learned Rent Controller settled the following issues: - (1) Whether the opponents have carried out structural changes which has impaired the value and utility of the disputed premises (2) Whether the applicant requires the premises in dispute for her personal bona fide use? And (3) What should the order be? The respondent/landlady filed her affidavit as Ex. 4 and produced in cross-examination the photostat copy of No Objection Certificate as Ex. 4/A and photostat copy of tenancy agreement dated 20.8.1978 as Ex. A/1, photostat copy of certificate dated 1.7.1985 as Ex. A/2, Photostat copy of passport of applicant as Ex. A/3, photostat copy of passport of Shermeen as Ex.A/8, Photostat copy of passport of Sardar Salman Bashir as,Ex. A/13, photostat copy of passport of Rehan Bashir as Ex. A/18, photostat copy of passport of Sardar Bashir as Ex. A/22, Photostat copy of notice dated 21.8.1984 sent by the Advocate of the respondent to the appellant/tenant as Ex. A/28, photostat copy of letter dated 28th July 1984 in respect of contract of service as Ex. A/29, photostat copy of letter dated ,3.8.1985 of the respondent's husband to the Chief Executive of the appellant/tenant as Ex. A/30. Respondent also filed affidavit-in-evidence of Sardar Bashir Ashraf as Ex. 5, affidavit-in-evidence of Mujtaba Ashraf as Ex. 6. The appellant/tenant filed affidavit-in-evidence of Shah Noor Ahmad, Director of appellant/tenant who produced photostat copy of agreement dated 21.8.1980, photostat copy of general power of attorney. All the witnesses who filed their affidavits-in-evidence were cross-examined by the respect learned counsel of the parties. After recording the above said evidence and hearing the learned counsel, Rent Controller passed the impugned judgment whereby the appellant/tenant was visited on the ground of personal bona fide need of the respondent, hence the present appeal. I have heard Mr. Khalid Anwar, learned counsel for the appellant/tenant, and Mr. Mumtaz Ahmad Shaikh, learned counsel for the respondent/landlady, and perused the R & P of the case and the case law cited by the respective counsel for parties. Learned counsel Mr. Khalid Anwar for the appellant has referred to para-4 of ejectment application which was filed on 14.9.1985 and para 4 of the affidavit-in-evidence of Sardar Bashir Ahmad and para-6 of the affidavitin-evidence of Mst. Nasim Bashir and has taken me through the impugned judgment in order to show that the respondent/landlady has based her case for personal bona fide need on the ground that the contract of employment of her husband has expired in July, 1985 in Dubai therefore she has returned with her family to Pakistan to settle permanently hence needed the premises in dispute in good faith. He has further contended that in view of the negative finding on issue No. 1 the respondent/landlady's statement on that point has been found to incorrect and her testimony on another issue was , false in view of the photostat copies of the documents proposed to be produced as additional evidence as the same would show that the husband of the respondent continued to serve at Dubai and lived there with his family therefore respondent's need was not based on good faith. He has contended that the respondent in the said circumstances cannot be believed as she has been found to have made false statement. Learned counsel for the appellant has referred to the affidavit of Shah Noor Ahmad, the Director appellant's Co., and has also referred to documents proposed to be produced as additional evidence in this appeal and has also referred to para 3 of objection filed to the appellant's CMA No. 731/89. He has argued that his C.M. Application No. 731/89 moved under Order 41 Rule 27 CPC be read with sub-clause (3) of Section 21 of the Rent Ordinance for the purpose of admitting the documents as additional evidence. Learned counsel has placed reliance upon Syed Abdul Hakim & others vs. Ghulam Mohiuddin (PLD 1994 SC 52), Fazal Hussain vs. Mahmood Hussain (1993 MLD 1726), Punjab Province vs. Rent Controller and others (1988 MLD 641), Attiya Eadar vs. Haji Munshi Khan (1994 CLC 1875) and Muhammad Ikramullah and another vs. M/s. Asian Packers (1987 MLD 3241) in support of his contentions. He has further argued that either this Court may record the additional evidence itself or after setting aside the impugned judgment, the case be remanded to the learned Rent Controller for conducting the further enquiry in the matter in view of the contentions raised by him. Learned counsel for the appellant in the end urged that the respondent and her family be asked to produce their passports before this Court in order to confirm the fact that the respondent with her family was still residing in Dubai. Learned counsel Mr. Mumtaz Ahmad Shaikh for respondent has argued that the respondent filed the ejectment application in the month of September, 1985 as she bonafide required the premises in good faith as she had come with her family from Dubai to Pakistan because the contract of employment of respondent's husband had expired in July 1985 and respondent's husband remained in Pakistan till 1988 but could not get any suitable job therefore he went back to Dubai where he got temporary employment therefore it could not be said that the respondent had falsely deposed in respect of her bona fide need. He has further argued that the application moved under Order 41 Rule 27 CPC in the year 1989 is belated one as the photostat copies of documents proposed to be produced as additional evidence is made after the disposal of the ejectment case and the said copies were not necessary for the pronouncement of judgment by this Court. He has further argued that protection has been provided under Section 15-A of the Rent Ordinance to the tenant where in case, the landlord has put the premises obtained under Clause (vii) of Section 15 of the Rent Ordinance to a use other than personal use within one year of such possession landlord could be punished as provided in Sub-Clauses (i) and (ii) of Section 15-A of the Rent Ordinance therefore there would no question of bad faith for seeking eviction of the appellant/tenant from the premises in question. He further contends that the respondent/landlady has no other house in Pakistan. He concluded his arguments saying that satisfactoiy evidence has been brought on record by the respondent/landlady whereby her requirement in good faith has been proved and the said evidence being consistent with the pleadings was rightly appreciated by the learned Rent Controller hence the impugned judgment was legal and proper and called for no interference in this appeal. He has placed reliance upon Fazal Azim and another vs. Tariq Mahmood and another (PLD 1982 SC 218) and Amanullah Khan vs. Hafiz Abdul Ghaffar (PLD 1985 Karachi 7) in support of his contentions. Contention of the learned counsel for appellant is that as the respondent in the first instance denied that the alterations and additions were carried out with her permission but when she was confronted to No Objection Certificate Ex. 4/A of her husband she had to admit the signature of her husband on Ex. 4/A therefore she was unreliable and should not be believed so far her evidence on the point of personal bona fide need is concerned. Mere fact that the respondent/landlady denied to have given any permission for additions and alterations in the premises but when confronted to Ex. 4/A, the respondent admitted the signature of her husband on it would not make her entire evidence to be not reliable considering that Ex. 4/A was not signed by the respondent but it was signed by her husband. Mere admitting the signature of her husband on Ex. 4/A would not mean that she had consented to such permission. It is also possible that the respondent's husband might not have informed or intimated about the said No Objection Certificate dated 30.9.1978 to the respondent considering also the fact that she was cross-examined on 27.7.1986 after about eight years from the date of Ex. 4/A. Learned counsel for appellant/tenant did not care to put any suggestion in the cross to Sardar Bashir Ashraf husband of respondent the author of Ex. 4/A as to whether he had intimated or informed the respondent his wife about No Objection Certificate given to the appellant, therefore it could not be presumed that she had knowledge of this No Objection Certificate and she had falsely denied the grant of such permission. Learned counsel for appellant did not say anything about the evidence already on record but his arguments'were that in case his application for additional evide.nct is allowed and the evidence of the respondent is disbelieved in view of her denial of grant of permission then the personal bonafide requirement of the respondent/landlady would stand disproved. Before I proceed to examine the evidence on record in respect of bonafide requirement it would be necessaiy to determine as -to whether the Application CMA No. 731/89 has any merit so as to allow the additional evidence to be admitted. Mr. Khalid Anwar, learned counsel for the appellants, has contended that the said application would fall under Rule 27 Order 41 CPC read with Sub-Clause (3) of Section 21 of Rent Ordinance for Rule 27 of Order 41 CPC runs:- "27. Production of additional evidence in Appellant Court .... (\

The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document, to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an 'Appellate Court, the Court shall record'the reason for its admission." •Sub-clause (3) of Section 21 of the Rent Ordinance reads:- • "(3) The appellate authority shall, after perusing the record of the case and giving the parties an opportunity of being heard and, if necessary, after making such further enquiry either by himself or by the Controller, make an appropriate order, which shall be final." In para 8 of CMA No. 731/89 it has been stated that: "It is necessary in the interest of justice and since substantial cause has been adduced that additional evidence in terms of the above be brought on record. The additional evidence was originally not available." It para 3 of the above said application it has been stated that: "The Managing Director of the appellant Mr. Shah Noor Ahmad has recently made a trip to Dubai on 23.4.1989. While there he had made enquiries at the office of a firm known as Fair trade and was informed that the Respondent's husband Mr. Ashraf was still working as General Manager at the said firm. Mr. Ashrafs telephone number also appears in the 1989 telephone directory of Dubai, UAE as well as in the earlier editions, photostat copies of which have already been filed. In this connection, a . photostat copy of the name card of Mr. Ashruf and of the relevant page, namely, page 5(5 of the telephone directory are being attached herewith marked A-l and A-2 respectively." From the above averment, it would appear that the appellant/tenant's Managing Director made a trip to Dubai on 23.4.1989 after the disposal of the ejectment application on 6.1.1988 and there he made enquiries in respect of whereabouts of respondent's husband when he came to know that he was still working as General Manager at the said firm. There is no reason shown as to why appellant/tenant did not make such attempt prior to the filing of his affidavit-iii-evidence when specifically the bonafide requirement of the respondent was denied. The said trip and discover)' of new evidence after 'disposal of the ejectment case would not fall within the purview of substantial cause or would t ut be in the interest of justice as no one could be permitted to fill up the lacuna Kit by one party to the disadvantage of an oilier party so as to enable one of the party to the litigation to fill in gaps in the evidence. Discovery of fresh evidence at the later stage is no ground for permit ling the additional evidence at this appellate evidence sought to be produced was not refused by the learned Rent Controller and no substantial cau.se lias In en made out as held by me above. Now there remains the 'mound wlu'iher the Appellate Court itself would require such additional. "udeiice for the pronouncement of judgment. This Court would not require - ht said photostat copies of documents to be brought as additional evidenceidi t!>e pronouncement of judgment as the same Would not come within the a of Rule 27 of Order 41 CPC. I may also point out that al! documents which are submitted to be admitted as additional evidence are photostat copies and not original. First document is the photostat copy of visiting card in the name of respondent's husband designated as General Manager. Second document is the photostat copy of front title page of telephone directory of UAE. Third document is the photostat copy of page 75 of the telephone directory where telephone numbers of Fair-trade Box 6426 have been given. Fourth photostat copy is page 56 of the telephone directory where the name Bashir Ashraf Box No. 6226 is printed. Fifth is the photostat copy of letter dated 13.4.1989 addressed to Shahuoor Ahmad of the appellants from Joint Secretary, Ministry of Labour, Manpower and "Overseas Pakistanis, Manpower Division, wherein it has been stated that Sardar Bashir Ahmad Ashraf was living in Dubai alongwith his wife and children and working with local sponsor Mr. Yousuf Al Hamar, General Manager Fair-trade. Sixth is the photostat copy of telex message from PAREP to Manpower Division Islamabad. The photostat copies of documents sought to be produced as additional evidence even on merits would not disprove the case of respondent about for bona fide requirement and also as the originals of the same have not been filed with the application considering that photostat copies would not be admissible in evidence unless the case is made out under Article 74 of Qanoon-e-Shahadat and such pennissidn to lead secondary evidence is granted. I may also stale that after perusing the record and proceedings of tin- ca.se and hearing the learned counsel for parties 1 do not deem it necessary to allow the said photostat of documents as additional evidence as well under Sub-clause <;5> of Section 21 of the Rent Ordinance considering that the said documents are neither admissible in evidence nor necessary for the disposal of this'appeal. 1 may also point out that no authenticity'as to its genuiuene.9s ixuld be attached to the said photostat copies filed with the application when the application under Order 41 Rule 27 is not even supported by an affuiavi; of Mr. Shah "Noor Ahmad who is said to have made a trip to Dubai, TL-se d-iciiment.s are uf I lie dates after disposal of the ca.se. theij'ore. also nn.-ievant foi the decision of case. Reference is made t<> Dr. .M. Mu,':<;.\t hksngih .".s , MuhiiiiuiiLid Mustafa < 1988 SCMR 7411 wherein ii was ubser\ed:- "1 he provisions of Order Xl.I. Rule 21. production of additional evidence m the aj pc-Hale Court are,' substantially worded differeiiilv 'fn>m subsection' «.'>i of' section 21 of the Ordinance of 197!) (.'onseijtieuHy'.-liie. .limitations provided in the former j'rovisi.inS' cannot be. , technically and literally, imported i'.i the latter, proyi.siiins. Section 2li;>) of the Ordinaiuv vesis a disci vt.ionai\ power in the appellate Authority wiierever found necessary to-make a fin [her inquiry. Of course the diiicivtion uuisl be-exeivised judicially and not arbitrarily. There is no limitation Uv the '. exercise of the power, namely, that, such further, inquiry cannot be made to permit evidcin-cor•cireninxtMices tu i-oiik on record which hure-vaincmto existences to conic un ncon which have come into existence after the decision of the Rent Controller. Subsequent events may have such a bearing on the dispute of the parties as to go to its very root and change the very course of litigation or the ends of justice require it. to examine the same. Therefore, it Would be Wrong to say that in no case the appellate authority Would be competent to hold further inquiry in the tight of the subsequent events or facts which have come into existence after the decision of the case in the Court of first instance. The only limitation oh the power of the appellate authority to make a further inquiry at the appellate stage is that after perusing the record of the case and heart ig the parties, such further inquiry should be deemed to be necessary. . In order to make Up his mind whether further inquiry is necessary or not, the appellate authority has to see the nature of the evidence proposed to be produced by the applicant. If such evidence, whether oral or documentary, is upon a matter irrelevant to the controversy before the Court, it cannot be deemed necessary to reopen the Case for additional evidence Under section 21(3). View that the application for additional evidence Was not maintainable and was liable to be rejected on the ground that the evidence sought to be produced had come into existence subsequent to the decision of the case by the Rent Controller cannot be subscribed. To allow the roving inquiry into the faifetched suggestions that, the attempt made to rent out other pails of the building is indicative of the mala fide of the landlord would be wholly unjustified and improper exercise of the power available to the appellate authority under section 21(3) of the Ordinance." I may also state that the said documents are hot relevant as the respondent's husband could not be made to remain in Karachi for indefinite period till decision of ejectment application filed by his Wife as every body Would tike to have some job to earn his livelihood and in the instant case if husband of the ivoj,. mdent left for Dubai after remaining herein Karachi from 1985 till 1988 is stated by learned counsel for respondent it would not negate the bonafide .fuij .irement of the respondent. Reference is made to Fazil Azim and another (vs. Tariq Mahmood and another (PLU 1982 SC 2l8> wherein it was observed:- The admitted fact that respondent No. 1 went abroad cannot by itself be considered as showing lack ofbona fides. It has been observed in a number of cases that the landlord seeking eviction-on the ground of personal requirement would not sit idle for period of tinie during the pendency of eviction proceedings. If during such a period he employs himself • in a gainful occupation, that as a general proposition, would not negate the assertion of bong fide on his part. In the circumstances in view of the reasons discussed above and the case law perused the application under Order 41 Rule 27 read Sub-clause (3) of Section 21 of the Rent Act has no merits and is hereby dismissed. Now reverting to the main appeal, the respondent in paras 4 to 7 of ejectment application has stated about her bona fidt requirement and same was reiterated by her in her a$idavjt-in-ey)dei>ce Ex. 4 and her testimony could not be shaken in the cross-examination. 1 have already discussed about the contention of the learned counsel for appellants that the respondent should not be believed in view of her evidence where she.denied to have granted permission to the appellants but when confronted to ex. 4/4 she had to admit it were the signature of her husband therefore it would not necessary to reproduce the reasonings given above for believing her evidence. She has produced the relevant documents showing that her husband was no longer working in the company of Fair-trade. In response to 'that, she also served the appellant with 9 notice about her requirement in Ex. A/28. Respondent is supported by her husband Sardar Bashir Ahmad in his affidavit-in-evidence and his testimony also could not be shaken so far the requirement of the respondent is concerned. Respondent is also supported by Mujtaba Ashraf and his testimony was also not shattered in the cross-examination. There is only denial on behalf of the appellant/tenant's Managing Director Shah Noor Ahmad about the bona fide need of the respondent/landlady. Nothing has been brought in the cross-examination which could dis-entitle the respondent from getting possession of the premises under the law. There is even no suggestion from the appellants that the respondent alongwith her husband and children were still iq Dubai. Mere fact that the respondent's husband got temporary employment in Dubai would not, itself, disentitle the respondent from seeking eviction of the appellant under the law though there is no such evidence on record except the photo stat copies of documents which have not been admitted in evidence. The respondent/landlady cannot be deprived of her own property when she has proved her bong fide need in the instant case. In case the respondent/landlady uses the said premises other than (ot­ her personal bona fide need the appellant could report to the remedy provided under Section 15(a) of the Rent Ordinance. Accordingly, I do not find substance in the contentions of the learned counsel for appellant. In Syed Abdul Hakim and others vs. Gliulam Mohiuddin case, the appellants filed ejectment Case No. 822/88 against the respondent seeking ejectment on the ground of personal requirement and default, whereas ejectment Case No. 824/88 was filed against Mst. Amatul Qayyum in respect of Shop No. 5 on the ground of personal requirement of the appellants No. 4 and 5 and the both cases were resisted by the tenants and the cases proceeded separately and- in case No. 822/88 the appellants and Mst. Amatul Qayyum tenant of Shop No. 5 entered into compromise on 11.12.1989 whereby possession of shop No. 5 was given by her to the appellants. Before the respondent could bring the above fact to the notice of Rent Controller, order in the rent case was announced on 18.12.1989 granting ejectment of personal requirement on the ground of personal requirement alone thereafter respondent filed FRA which was allowed by this Court by the learned Single Judge of this Court against which the appeal was preferred to the Hon'ble Supreme Court wherein it was contended by the learned counsel for appellant that personal requirement of the appellant No. 1 for Shop No. 4. was distinct and independent of the boner fide requirement of Appellants No. 4 and 5 in respect of Shop No. 5 and the learned Judge in Chambers was not justified in setting aside the order of the learned Rent Controlled and remanding the case and in any case it could not be remanded for decision on the said point to the learned Rent Controller, but either it should have recorded the further evidence itself or it should have remitted the" case to the learned Rent Controller for recording evidence and thereafter resubmitting the same to the High Court for decision. Whereupon the Hon'ble Supreme Court held that: "The words "make an appropriate order' employed in subsection (3) of Section 21 of the Ordinance are of significant, they empower the appellate Court to pass a remand order. However, we may also observe that the appellate Authority under Section 21 of the Ordinance should not remand the case as a matter of course but should address itself to the question, whether the remand of the case in particular case is warranted by the facts thereof. " In the instant case no such point is involved and there v is no cavil to the proposition that appellate authority under Section 21 can pass an order of remand if warranted by facts thereof. In the instant case I have already held that further enquiry is not necessary in the instant case considering that the application for producing additional evidence in view of .reasons above has no merits on the basis of which remand of case was prayed, for. Next case relied upon in Dr. M. Murtaza Hussain vs. Muhammad Mustafa (1988 SCMR 741> ; -I have reproduced the case, above and there is no cavil about the proposition that appellate authority can not make further enquiry at the appellate stage after perusing the record of the case and hearing the parties in case further enquiry is deemed to be necessary but in the instant case I have already held that, no further enquiry is necessary. In Fazal Hussain vs. Mali mood Hussain 11993 MLI) 172tii case, .this Court allowed the application of landlord for additional evidence'observing: "Now, appellate powers are exercisable under Section 21 of the Sfndh Rented Premises Ordinance, 1979, by this Court without any express restrictions or limitations. There is no room for technicalities in the exercise of such jurisdiction except the rule that where without saying more jurisdiction is conferred on an already established Court, particularly when jurisdiction is so conferred on a superior Court, such Court may take recourse to the procedure it normally follows provided that the larger principle of advancing the remedy and suppressing the mischief is not lost sight of and if justice of cause sold desired." I have held above that it was not neither in the interest of justice nor there was any substantial cause to allow the appellant/tenant to produce photostat copies of documents as additional evidence and the principle laid down in 1988 SCMR 741 have been followed in the instant case. In Punjab Province vs. Rent Controller and others (1988 MLD 641 > case, permission to produce lease deed and sanctioned plan of the premises to establish absence of relationship of landlord and tenant was sought to be produced by the tenant which documents were considered though not relevant but essential for just decision of point in controversy between the parties and were not within his knowledge during proceedings before the Rent Controller. The facts of the instant case are distinguishable to the facts of the case cili'd. In the said repotted case documents sought to be produced there was no question of doubt about the authenticity of the same and the same were considered to be essential for just decision of the case whereas in the instant case it has been held by me above that production of the said photostat copies of documents was not necessary for the just decision of the case. In Attiya Hadar vs. llaji Munshi Khan (1994 CLC 1975) case, learned Judge in Chambers held that: "Mere statement of landlord that he required premises in question in good faith for his use, was not sufficient to establish his requirement, but it must be supported by valid reasons as to how his requirement was genuine." There is no dispute about the above proposition land down in the cited case. In the instant case, the respondent/landlady is supported by her husband Sanlar Uasliir Ashraf and Mujtaba Asliraf and by documents produced in respect of herbona fide need therefore it could not be said that there is oi.ly word or desire of the respondent/landlady in the instance case. In Muhammad Ikramullah and another vs. M/s. Asian Packers ( 1987 Ml.I) 3241) case learned Judge in Chambers held that: "The burden to establish the requirement ia> of the West Pakistan Urban Rent Uc.stridu;ii "Ordinance is squarely on the landlords to establish that he required the premises in good faith for his own occupation or u.->e >f liis spouse or any of his children." In the noted case the respondent/landlady has discharged the burden of proof by filing her own affidavit and subject herself to the cross-examination where he testimony could not be shaken so also she has been corroborated by her husband and Mujtaba Ashraf besides other documentary evidence therefore it could not be s said that the respondent/landlady has not discharged the burden of proof in respect of her bona fide requirement. The last case cited in M/s. Paramount Hosiery Mills Ltd. vs. Syed Mustafa Hyder (PLD 1984 Karachi 143) wherein learned Judge in Chambers observed: "The provision noted above envisages further enquiiy by the Appellate Authority or by the Controller. In the instant case it would be more appropriate and in the interest of parties that both parties should be given equal opportunities to produce evidence for or against the proposition. I, therefore, set aside the impugned order and remand the case to the learned VIII-Rent Controller to record further evidence of the parties on the question whether the need is bona fide or mala fide." In the instant case it is held by me that it would not be appropriate to allow the photostat copies as additional evidence under Section 21 Rule 3 of Rent Ordinance in view of the reasons given above: On appraisal of the evidence on record and the ease law cited by the respective counsel for parties it could be said that the respondent/landlady has proved bona fide requirement in respect of the premises in dispute and the same could not be rebutted by the appellant/tenant and in view of the case law cited, the respondent/landlady would be entitled to the possession by evicting the appellant/tenant from the premises. Accordingly, in view of the reasons given above the appeal is dismissed and the appellant is directed to hand over the vacant possession of the premises within sixty days to the respondent/landlady. (ZB) Appeal dismissed.

PLJ 1996 Karachi 312 PLJ 1996 Karachi 312 Present: HAMID ALI MIRZA, J. MUHAMMAD SHARIF-Appellant versus IFTIKHAR HUSSAIN KHAN-Respondent F.R.A. No. 57 of 1994, dismissed on 14.2.1996. Personal Need- -—Tenant-Ejectment of-Order of-Challenge to-Main points for consideration are (i) whether alleged payment of Pagri ui) shops No. 3 and 4 which fell vacant and were re-let by respondent, and (iii) filing of ejectment application under section 14 of Sindh Rented Premises Ordinance, 1979 would negate bonafide need of respondent's son-^-There is nothing in law to bar ejectment for personal bonafide need on account of payment of Pagri- There is no sufficient evidence to show that shops No. 3 and 4 fell vacant during pendency of proceedings-Filing of eviction application under section 14 of Ordinance against another tenant would not negate personal bonafide need in good faith of respondent for his son- -Held: Considering evidence on record and case law, appeal has no merits-Appeal dismissed. [Pp. 315 & 317] A, B & C 1987 SCMR 307, 1992 SCMR 1300, 1988 SCMR 1587, 1980 SCMR 593,1981 CLC 1091 and 1985 SCMR 1769 rel Mr. Faisal Arab, Advocate, for Appellant. Mr. Javed Raja, Advocate, for Respondent. Date of hearing: 5.10.1995. judgment This is an appeal under Section 21 of Sindh Rent Premises Ordinance 1979, hereinafter referred to as "rent Ordinance", directed against an order dated 22.12.93 passed in Rent Case No. 340/1992 (Iftikhar Hussain versus Muhammad Sharif) by Illrd Senior Civil Judge and Rent Controller Karachi Central whereby an application under Section' 15 of the Ordinance filed by the Respondent/landlord was allowed and the Appellant/tenant was directed to hand over the possession to the Respondent/landlord within sixty days, hence this appeal. The brief facts of the case are that the Respondent/landlord filed an ejectment application under Section 15 of the Ordinance against the Appellant/tenant in respect of Shop No. 12 situated in Faiz Abdul Fazal Market on Plot No. 877-C, Block No. 2, Li quatabad Karachi which was on the rent at the rate of Rs. 200/- excluding electricity charges since 1975 with the appellant/tenant, on the ground that the Respondent/landlord required the said shop for his son Naseem Hyder who has become major and wanted to establish his own business. The appellant/tenant filed written-statement stating therein that rent receipts were issued by the Respondent/landlord in respect of Shop No. 13 and that he had paid an amount of Rs. 4,50,000/- towards "Pagri" for the said shop and initially the rate of rent was Rs. 50/- per month but thereafter it was enhanced to Rs. 200/- per month. The Appellant/tenant further stated that the alleged need of the Respondent's son Naseem Hyder is not bonafide as other shops fell vacant from time to time and the Respondent/landlord re-let out the same after charging handsome share in the "Pagri" amount from the outgoing tenants. On the pleadings of the parties learned Rent Controller settled the following issues: 1. Whether the Applicant required the premises-in question for his personal bonafide use for his son Naseem Hyder? 2. What should the order be? The Respondent/landlord filed an affidavit-in-evidence of Syed Ghulam Raza and his own affidavit-in-evidence and of his son Naseem Hyder who produced a counterfoil of rent receipt dated 2.7.1989 Ex. A/4, rent receipt dated 3.9.1989 as Ex. A/5, rent receipt No. 104/dated 2.2.1991 Ex. A/6. The Appellant/tenant filed his own affidavit and produced photostat copy of agreement Ex. 0/2, a receipt dated 17.8.1984 Ex. 0/3, filed affidavits of Sheikh Din Muhammad and of Muhammad Hussain. The Rent Controller after recording the above evidence and hearing the learned counsel for the parties passed the impugned judgment. I have heard the learned counsel for the parties, perused the record and proceedings of the case and case law cited by the learned counsel for the respective parties. Mr. Faisal Arab, learned counsel for the appellant's contention is that the need of the respondent/landlord for his son is not bonafide as two shops No. 3 and 4 fell vacant prior to the filing of the present case against the appellant but the said chops were let-out by him and further respondent has filed Ejectment Application No. 843/1992 against the another tenant and the respondent has suppressed the material facts from the Court. He has placed reliance upon 1991 CLC 1236, 1985 CLC 892 at 897, 1976 SCMR 459, 1995 SCMR 146, 1991 CLC 1047, 1982 CLC 1106 and NLR 1981 Supreme Court Journal 490 in support of his contention. Mr. Javed Raza, learned counsel for the respondent, has argued that the respondent/landlord has proved the personal requirement in respect of the shop in possession of the appellant for his son and the finding of the learned Controller is based on proper appreciation of the evidence on record. He has contended that Shop No. 14 was in possession of his son Waseem Haider who is married and was carrying out his business independently since 1980 whereas he needed the Shop No. 12 in possession of the appellant for his another son Naseem Haider who has no become major. He has further contended that Shops No. 3 and 4 where not vacated and re-let-out during the pendency of the proceeding and no evidence has been produced by the appellant to prove the 1985 SCMR 522 and 1981 SCMR 709 in support of his contentions. The respondent has in his ejectment application stated that he needed the Shop No. 12 in possession of the appellant/tenant for his son Naseem Haider who has become now major where he would open his own business. The statement made in the application is reiterated by the respondent Iftikhar Hussain Khan in his affidavit-evidence. Naseem Haider has also in his affidavit-in-evidence stated that he has become major and would establish his own business for his livelihood and for that purpose he needed the shop in question which was most suitable place for the establishment of his business. The appellant/tenant in his written-statemeht as well as in his affidavit-in-evidence has denied the requirement of the respondent/landlord for his son Naseem Haider to be a bonafide one and has stated that Shops No. 3 and 4 fell vacant but then the same were re-let-out and further that he had paid "Pagri" of Rs. 4,50,OOO/- to the respondent/landlord and further that he had filed ejectment application against his tenant A. Latif under section 14 of the Rent Ordinance. The main points for consideration in his appeal are that whether the alleged payment of "Pagri" to the respondent (I) the Shops No. 3 & 4 which fell vacant and were re-let-out by the respondent and (iii) the filing of ejectment application under Section 14 of the respondent would negate the bona fide need of the respondent's son. There is Nothing in law which bars the ejectment under Rent Ordinance for personal bonafide need in case where payment of "Pagri" is alleged by the tenant. Reference is made to Shaikh Muhammad Yousuf vs. District Judge Rawalpindi and 2 others (1987 SMCR 307). In case the appellant/tenant wants refund of alleged payment of pagri he could file suit for the recovery of the same in the Civil Court in accordance with law. Mere fact that the pagri has been alleged to have been paid to the respondent/landlord would not debar him from seeking eviction of the appellant on the ground of personal bonafide need of his son. So far the plea that the shops No. 3 & 4 fell vacant and the same were re-let-out, there is no sufficient evidence to show that the said shops fell vacant during the pendency of the proceedings and the same were re-let-out by the respondent. It will not be out of place to state here that the shop or the premises for which pagri is to be paid, the possession of the same is generally passed on from tenant to tenant and the same is not put into possession of the landlord and only landlord is paid a share in the pagri for the change of receipt therefore it could not be said that the shops fell vacant and he was in a position or authority to keep it for the use of his son. Accordingly the said contention has also no merit. So far the filing of ejectment application under Section 14 of the Ordinance by the respondent against his tenant A. Latif which fact has been admitted by the respondent but the ejectment application filed under Section 14 of the Rent Ordinance if allowed by the Rent Controller, the benefit of the same would go to the specified persons mentioned in the said provisions of law whereunder son of the respondent would not get any benefit. In the circumstances the filing of the said eviction application would not negate the personal bonafide need in good faith of the respondent for his son. Mere fact that one of the son of respondent is having shop in his occupation where he is carrying on his business would not mean the respondent should not think for his livelihood of another son who has ultimately to lead his independent life, therefore the shop in occupation of Wasim Hyder would not react to the bonafide need of another shop for respondent's another son. On the whole the testimony of the respondent as well as his son Nasim Hyder could not be shaken in cross-examination by the appellant's counsel and thereby bonafide need in good faith has been proved by the respondent, considering that it is the prerogative of the landlord to have possession of the shop of his choice and it has been stated that the shop in question was most suitable for the personal need of Nasim Hyder, the son of respondent. Reference is made to Abdul Karim vs. Abdul Karim (1992 SCMR 1300), Muhammad Sharif v. Nisar and others (1988 SCMR 1587) Mst. Tauheed Khanam vs. Muhammad Shamshad (1980 SCMR 593) Haji Majid vs. Haji Imamuddin (1981 CLC 1091) and Dildar fJussain Niyyar vs. Niaz Muhammad Dar (1985 SCMR 1769). In view of the aforesaid evidence, reasonings and settled proposition of law the contentions of the learned counsel for the appellant has no merit. So far the cases relied upon by the learned counsel for the appellant, in Ms?. Razia Khatoon vs. Abdul Razzak (1991 CLC 1236) case, the appellant/landlady had got one shop vacated through the ejectment application on the ground that the tenant had made alteration ftnd addition without the consent of the appellant/landlady which had materially effected the value and utility of the shop and she had also asked for another shop of the respondent which was also adjacent to the shop the ejectment of which was granted but the appellant/landlady failed to justify the requirement in respect of another shop and it was held by my brother {earned Judge in Chambers that the shop was now available to the appellant which was sufficient to cany on the business of general Store and medical store therefore the facts of the cited cases were quite different and distinguishable to the facts of the instant ease. In Abdullah vs. Hasan Abbas (1985 CLC 892) case my learned brother Judge in Chamber observed that the landlord has to satisfactorily explain how the existing premises was not sufficient for his business. In the instant case the respondent/landlord has brought evidence to show that one of his son Waseem Haider was married and was esrryiitf out his business independently while the shop in question was needed for His another son Naseem Haider who has become major and wanted to start his business therefore has satisfactorily explained that the shop already in possession of Waseem Haider could not be used for the business of another son who has to start his own business. In Allah Ditto vs. Mst. Rasoolan Bibi and Seven others (1976 SCMR 459) case the observations made in the cited case supports the case of respondent rather than the appellant. In Abid Masood and others vs. Dilshad Khan ( 1995 SCMR 146) case, the facts were that petitioners/landlords owned numerous shops in the building and during the pendency of the proceedings got dated some shops which were let out to tenants and after remand of the proceedings the petitioners/landlords had opportunity to lead evidence to show that the shops which fell vacant during the pendency of ejectment proceedings were not suitable for their use but led no evidence in that behalf but in the instant case there was no evidence about the shops having fallen vacant during the pendency of proceedings and thai respondent's son has stated that the shop in question was most suitable for L which has neither been challenged in the cross examination npr evickr.ce in rebuttal has been adduced by the appellant. In Mukhtar Ahmad vs. Muhammad Salcern Bakhshi (1991 CLC 1047) case my brother learned Judge in Chamber has observed that landlord is required to give full particulars of his proposed business, availability of the capital that may be needed for the purpose, his experience or knowledge of business in such details that a Court can come to the conclusion that it is needed bonafide for the use of the landlord. With due respect to the observation of my learned brother I may state that Supreme Court of Pakistan in a number of cases has held that it was not necessary for the landlord to give details about the proposed business and his experience in respect of the business. Reference is made to Qamaruddin vs. Hakim Mahmood Khan (1988 SCMR 1366) and Mst. Saira Bai vs. SyedAnisur Rehman (1989 SCMR 1366). In Kaniyalal vs. Muhammad Ismail (1982 CLC 1106) case the facts of the cited case are quite different and distinguishable to the facts of the instant case as in the cited Case there was no plausible explanation given by the respondent/landlord to prove the personal bonafide requirement when he let out the shop on 17th August 1977 and needed the shop in 1980 for personal requirement. Considering the evidence on record and the case law above cited the appeal has no merits which is hereby dismissed/However, the appellant is given sixty days period to vacate the premises subject to condition that he would deposit the rent for the said period in the office of learned Rent Controller. (ZB) Appeal dismissed.

PL J 1996 Karachi 317 PL J 1996 Karachi 317 Present: IlAMID ALI MlRZA, J. NOMAN AHMAD-Appellant versus Mrs. GHAZALA IQBAL-Respondent R.F.A. No. 596/1994, dismissed on 10.1.1996. (i) Adverse Presumption- —Ejectment of tenant-Default in payment-Adverse presumption-Plea of- At no stage tenant moved Rent Controller to call upon landlady by giving her notice to produce counter-foils of rent receipts-Held: No adverse presumption could be drawn in circumstances. [P. 322]B (ii) Landloi-d-Pre-rogative of" —Tenant-Ejectment of-it is prerogative of landlord/landlady to have a choice of accommodation which would be suitable for his/her need- Held: That right could not be given to a tenant. [P. 326] D (Hi) Practice and Procedure- —-Law has imposed an obligation upon tenant to make payment of rent in a particular mode and if that mode is not followed person who has failed to follow law has to suffer-Appeal dismissed, [P. 324] C (iv) Rent-Adjustment of- -—Tenant-Ejectment of--Tenancy agreement states that no adjustment will be made against remaining unadjusted advance rent, which will be paid/refunded at time of vacation of premise's subject to deduction of dues and losses if any to property—Held: Tenant cannot claim adjustment of payment of rent. [P. 322] A (v) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —S. 15(vii> Tenant—Ejectment of—Personal buna fide need—Ground of— Finding of Rent Controller on issue that "whether applicant requires pii'lnises in good faith for her own use" is not bused on proper appreciation of law—Landlady could not have made ejectment application against tenant on ground of personal bonafide requirement before expiry of tenancy period-Mere fact that period of tenancy expired during period of litigation would not make ejectment application as competent. [P. 327] E Mr. K. B. Bhutto, Advocate for Appellant. Mr. Hamza I. Ali, Advocate for Respondent. Dates of hearing : 16.8.1995 & 17.8.1995. judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance (hereinafter called the Rent Ordinance) directed against an order dated 5-9-1994 in Rent Case No. 59/93 Mrs. Ghazala Iqbal Vs. Noman Ahmad passed by the learned Ill-Rent Controller, Karachi-East, whereby ejectment application filed by the respondent was allowed and the appellant was ordered to hand over the vacant possession of the premises within the period of sixty days, hence the present app»al. Brief facts of the case are that the respondent/landlady filed an application under Section 15 of the Rent Ordinance against the appellant/tenant in respect of Simp No. 1 on the ground floor constructed on property bearing No. 126, Darakshan Society, Malir, Karachi, which was on rent at the monthly rent of Rs. 3.G30/- exclusive of property taxes electricity, K.M.C. water, fire and conservancy charges on the ground that the appellant/tenant was habitual defaulter in the payment of monthly rent as well as other charges like property taxes, water and conservancy charges and was in arrears of monthly rent amount to Rs. 12,090/- being rent for the period commencing from September, 1992 to January 19915 and further that the appellant/tenant has also failed to pay water charges and property taxes fur the period of 1991-92 and 1992-93 and on the ground that the respondent/landlady required bonafide in good faith the said premises for her use and occupation as she wanted to start her garment manufacturing business in the said premises for which the appellant/tenant was asked-for but he' refused to hand over the possession of the same, therefore, the present ejectment application was filed against him. The appellant/tenant filed written statement stating therein that from November 1992 rate of rent was enhanced from Rs. 1,100/- to Rs. 3.630/- and since then the respondent/landlady never issued any rent receipt and the rent upto January 1993 has been paid to the respondent /landlady but when rent for the month of February 1993 was refused, the appellant/tenant started to deposit the same with the Controller in Misc. Rent Case No. 90/93 and that former made demand of Rs. 1,1 OO/- in respect of water and conservancy charges in the month of December 1992 through her husband which amount was paid to him on 10th day of December 1992 and further that no separate bill in respect of water and conservancy charges was issued in the name of appellant/tenant but it was sweet wish of the respondent/landlady to charge any amount in respect of the same. It has further been stated that the respondent/landlady did not require the premises in good faith for her personal bonufide use and she never informed the appellant about her need and never request for vacating the possession of the premises. On the pleadings of panics learned Rent Controller settled the following issues:- (1) Whether opponent has committed default in the payment of rent in respect of the premises in question? (2) Whether the applicant requires the premises in good faith for her own use? (3) What should the order be? The respondent/landlady filed her affidavit-in-evidence and produced photo copy of tenancy agreement dated 5.1.1993 as Ex. A/1, photocopy of letter from Almurtaza as Ex. A/2, photocopy of letter from Hina Garment as Ex. A/3. The appellant/tenant filed his own affidavit-inevidence. Learned counsel cross-examined at length the respective adverse party. Learned Rent Controller after recording the above evidence and hearing the learned counsel for parties allowed the eviction application as per impugned judgment hence the present appeal. I have heard learned counsel for parties, perused the record and proceedings of the case and the case law cited by the respective counsel for the parties. Learned counsel Mr. K. B. Bhutto for the appellant has argued that there were three tenancy agreements and the last was Ex. A/1 executed on 1.7.1992 between the parties and further that initially rate of rent was Rs. l.OOO/- which was increased from time to time and as per last agreement of tenancy, the rate of rent was enhanced to Rs. 3.630/- and further that the respondent/landlady refused to accepted the rent from February 1993 therefore rent was deposited in Misc. Rent Case. No. 90/93. He has further contended that as per para-3. of ejectment application, the respondent/landlady has only shown as arrears Rs. 12,090/- but has not stated any amount in respect of water and conservancy charges. Learned counsel for appellant has referred to para 2 and,4 of the last tenancy agreement and has also referred to para 5 & 6 of the affidavit-in-evidence of respondent/landlady. He has placed reliance upon 1991 MLD 621, 1983 SCMR 200 and Article 129(g) of the Qanoon-e-Shahadat in support of his contention that the respondent/landlady has not proved the default in payment of rent and has not produced the counter-foils of the rent receipts alleged to have been issued by her, therefore, adverse resumption be drawn against the respondent/landlady under the law. He has further contended that after the expiry of last agreement dated 1.7.1992 on 31.5.1993 the appellant became statutory tenant therefore was liable to pay rent in terms of Section 15(2)(ii) of the Rent Ordinance within sixty days after the rent became due under the Rent Ordinance. He has further contended that the respondent/landlady has been withholding sum of Rs. 87.000/- still unadjusted towards rent which was far in excess of alleged arrears of rent of Rs. 12,090/- therefore the appellant tenant could not be held defaulter in the payment of rent. On the point of personal requir: nent of the respondent, learned counsel for appellant has argued that tl o said requirement was not based on good faith as she has failed to even examine any employee of the alleged garment factory to support her need for the said purpose. He has also referred to cross-examination of respondent/landlady wherein she admitted that there was a hotel as well as four shops and also a clinic on first and second floor of the building. Learned counsel has further contended that the respondent/landlady has not explained as to how her present business place was insufficient to run the alleged garment factory when the third floor of the building was already in occupation of the respondent/landlady and that respondent/landlady has failed to produce necessary licence/approval -for running the alleged garment factory in residential building from the competent authority. Learned counsel for appellant has argued that the respondent/landlady filed ejectment application on 26.1.1993 whereas the tenancy agreement was upto 31st May 1993 therefore no ejectment application would lie against the appellant/tenant on the basis of personal bonafide need as the period of lease has not expired. Learned counsel in the end contended that the finding of the Rent Controller was erroneous in law and was not based on proper appreciation of evidence on record. He has placed reliance upon 1989 CLC 285 in support of his contentions. Learned counsel Mr. Hamza I. Ali for respondent has argued that the appellant/tenant has failed to pay rent from September 1992 to January 1993 and that the personal requirement of the landlady has been proved as per evidence on the record therefore findings of learned Rent Controller on both the issues were legal and based on proper appreciation of evidence on record. Learned counsel for respondent pressed only default in the payment of rent and did not press the default in the payment of other, charges. He has refiirrc-d to para-3 of the ejectment application and para 8 of the written statement and para 10 of the affidavit-in-evidence of respondent. He has further argued that Rent Ordinance has provided three modes of payment under Section 10 of the Rent Ordinance. He has argued that in case according to appellant/tenant, rent from September 1992 to January 1993 was paid but was not issued rent receipts, then the appellant/tenant should have sent the payment of rent through postal money order and in case the said postal money-order was refused then another mode about the deposit of rent with the Rent Controller was open to him but no such modes of payment of rent were followed as laid down in the Rent Ordinance therefore now the alleged defence that rent was paid but receipts were not issued would have no merit and further that an amount of Rs. 87,000/- lying with the respondent/landlady could not be adjusted towards the rent in view of para 4 of the agreement dated 1.7.1992 Ex. A/1 and that appellant/tenant could not be termed to be statutory tenant to be liable to make payment under Section 15(2)(ii) of the Rent Ordinance but he would be governed by the terms and conditions of the last agreement dated 1.7.1992 Ex. A/1 in respect of the payment of rent. He has placed reliance upon Mst. Saeeda Khatoon vs. Muhammad Ahmad Latifi (PLD 1990 SC 389), Mrs. Zarina Khawaja vs. Agha Mahboob Shah (PLD 1988 SC 190), Syed Asghar Ali Imam vs. Muhammad Ali (PLD 1988 SC 228), Kala Khan vs. Anjuman Musalmanane Mashraqui Punjab, Karachi (1993 CLC 250), Mst. Rasheeda Begum and another vs. Mst. Samina Mushtaq (1993 MLD 1825) and Ghulam Hyder Baloch vs. Ghulam Nabi (1993 MLD 386) in support of his contentions. So far the Issue No. 2 about the personal requirement of the respondent/landlady the learned counsel for respondent has argued that period of tenancy expired during the pendency of litigation between the parties therefore the respondent/landlady was entitled to evict on the cause of action mentioned in the ejectment application. He has placed reliance upon National Bank of Pakistan vs. Shaikh Muhammad Sharif and three others 91993 CLC 2272), Mst. Rabia Bai Fatima Bai vs. Ghulam Muhammad Donal (1987 CLC 404) and Raj Muhammad vs. Hqji Muhammad Zareen and three others (1980 SCMR 339) in support of his contentions. The first contention of the learned counsel for appellant is that the respondent/landlady was paid rent from September 1992 till January 1993 but latter did not issue receipts .for the said period and when rent for the month of February, 1993, was tendered but was refused by her, therefore rent for the said months was deposited in Misc. Rent Case No. 90/93 hence there was no default on the part of the appellant. The respondent/landlady in para 3 of the ejectment application has stated that the appellant/tenant was in arrears of monthly rent amounting to Rs. 12.090/- viz. rent Rs. 1,200/- at Rs. 600/- per month-for the months of September and October 1992 and Rs. 10,890/- rent from November 1992 to January 1993 at Rs. 3.630/- being rent for the period from September 1992 to January 1993 as per para 3 of the tenancy agreement dated 1.7.1992 and the said statement is consistent with the statement made by her in para 5 of affidavit-in-evidence while in para 8 of the affidavit-in-evidence the respondent/landlady has stated that there remained unadjusted amount of Rs. 87,000/- after adjustment of advance rent from September 1990 to October 1992 which was to be kept by the respondent/landlady as security deposit refundable to the appellant/tenant at the time of handing over the possession of the demised premises subject to deduction of the dues and losses if any done to the premises in view of agreement dated 1.7.1992. The appellant/tenant in the affidavit-in-evidence has stated that he has paid sum of Rs. 1,00,000/- as advance rent to the respondent/landlady adjustable towards the rent and now sum of Rs. 87,000/- remained in balance with her and that from November 1992 the rent has been enhanced from Rs. 1,100/- to Rs. 3,630, per month and that he has not been in any arrears of rent as stated by the respondent/landlady and has paid rent upto January 1993 and rent for the month of February 1993 the respondent/landlady refused to accept the rent therefore the said rent was deposited in Misc. Appln. No. 90/93. Para 1 of tenancy agreement Ex. A/1 states that lease period would expire on 31.5.1993, para 3 states that from first day of November 1992 monthly rent will be Rs. 3,630/- which shall be paid in cash/cheque and no adjustment will be made against the remaining unadjusted advance rent and in para-4 it has been stated that amount of Rs. 87,000/- will be paid/refunded at the time of vacation of premises by second party subject to deduction by first party of dues and losses if any done to the property. At least from the above terms of agreement it would be clear that the appellant/tenant cannot claim adjustment of payment for the months the rent of which has fallen due from- sum of Rs. 87,000/- lying with the respondent/landlady. Now the point for consideration would be whether in view of evidence on record the appellant/tenant has paid rent from September 1992 to January 1993. The respondent/landlady has been crossexamined at length by the learned counsel for appellant wherein she has stated that out of sum of Rs. 1,00,000/- and amount of Rs. 13.000/- was adjusted towards the rent at the rate of Rs. l.OOO/- while their remained Rs. 87,000/- to be refunded with her. She has also stated that she was issuing the rent receipt to the appellant/tenant and was maintaining counter-foils of the rent receipts issued by her. It will not be out of place to state here that at no stage the appellant/tenant moved the Rent Controller to call upon the respondent/landlady by giving her notice to produce the counter-foils of the rent receipts in the Court and if that notice would have been given and if she would have failed to produce the counter-foils then the adverse presumption could have been drawn against the respondent/landlady but as no such notice was given to respondent/landlady, therefore, no adverse presumption could be drawn in the circumstances of the case. Besides when the rent has not been paid by the appellant/tenant and received by the respondent/landlady there would be no counter-foil for the said period. The evidence adduced by respondent/landlady would show that the appellant/tenant has not paid rent to her from September 1992 to January 1993 as per para 3 of tenancy agreement and thereby has discharged her onus and has proved the said fact and thereby the onus in respect of payment of rent to the respondent shifted under the law upon the appellant/tenant. Nothing has been brought on record by the appellant/tenant to disprove the averments made in the ejectment application which were consistent with the contents of her affidavit-inevidence and the veracity of the landlady in the cross-examination could not also be shaken. Section 10 of the Rent Ordinance runs:- "10. Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant, be paid not later than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situate. (4) The written acknowledgment, postal money order receipt or receipt of the Controller, as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the case pending before the Controllers on the commencement of this Ordinance. From the perusal of the above provisions, it would appear that law has laid down duty upon the tenant to pay rent to the landlord/landlady and obtain an acknowledgment of the same and in case acknowledgment is riot to be given in respect of rent then the rent could be sent by postal money order, the postal receipt of which would be sufficient proof of payment of rent but in case postal money order is refused then the rent could be deposited with the Controller having jurisdiction where the property is situated and the rent payment receipt of the Rent Controller would be sufficient proof of payment of rent. I cannot understand as to why the appellant/tenant executed an agreement dated 1.7.1992 whereby he enhanced the rate of rent from Rs. 1,100/- to Rs. 3,630, wherein it was clearly stipulated that henceforth no adjustment of rent will be made from the balanced amount of Rs. 87,000- and if the rent receipt was not being issued by the respondent/landlady then why the rent was not tendered through postal money order and in case of failure to receive the same, why the rent was not deposited with the office of Rent Controller. Mere statement of the appellant/tenant that he paid rent to the respondent/landlady but the receipts were not issued would not be sufficient proof of the payment when there has been no other corroborative piece of evidence in support of the said statement. Law has imposed an obligation upon the tenant to make payment of rent in a particular mode and if that mode is not followed the person who has failed to follow the law has to suffer. It is admitted position that the rent form February 1993 onwards was not paid by the appellant therefore the said rent should have been deposited with the Rent Controller. The appellant/tenant has not also brought any evidence showing as to when he deposited the rent for the month of February 1993 and onwards with the Rent Controller but only stated that he deposited rent in Misc. Rent Case No. 90/93. Next question which would arise in this case would be as to when monthly rent should be payable by the appellant/tenant after the lease period has expired i.e. 31st May, 1993. In the instant case as per para-3 of tenancy agreement Ex. A/1 monthly rent from July 1992 to October 1992 shall be Rs. 600/- paid in cash and the remaining Rs. 500/- shall be adjusted towards the adjustable rent and shall be paid upto 5th of each calendar month in advance. So far the payment of rent from first day of November, 1992, there is nothing in the tenancy agreement as to when monthly rent would be payable by the appellant/tenant to the respondent but prior to the said period the monthly rent was to be paid upto 5th day of each calendar month in advance, therefore, in absence of any period mentioned in the agreement in respect of payment of rent the same shall be payable as provided under Section 15(2)(ii) of the Rent Ordinance, consequently, the rent of Rs. 600/- for the month of September 1992 would become due on its expiry and would be payable within sixty days thereafter, which would mean that it was to be paid by 29th of November and rent of Rs. 600/- for the month of October, 1992, was to be paid by 30th of December, 1992, while rent of Rs. 3,630/- for the month of January, 1993, was to be paid by 1st April, 1993, but there is nothing on record to show that the appellant/tenant made any payment within due time in respect of the said months either by sending it through postal money order or by making deposit with the Rent Controller as the appellant/tenant himself admitted to have deposited rent for the month of February onwards in Misc. Rent Case No. 90/93 which would mean that no rent for the said months was paid or deposited in favour of respondent/landlady therefore it c Id be said that there has been default in the payment of rent for the said months. So far the contention that the appellant/tenant after the expiry of period became statutory tenant would not alter the position in the instant case as there is no term in the agreement Ex. A/1 with regard to the time of payment of monthly rent viz. in advance or in the following month before 10th of each month or in accordance with Section 15(2) (ii> of Rent Ordinance though in case of Mrs. Zarina Khawaja reported in PLD 1998 SC 190, Supreme Court of Pakistan held that even after the expiiy of the period of tenancy, the rent would continue to be paid on the same terms and conditions if the terms and conditions are not found to be repugnant to the rent laws so also in the subsequent decision reported in Syed AsgharAli Imam vs. Muhammad All reported in PLD 1988 S.C. 228 the same observations of the Supreme Court were followed that even after the expiiy of tenancy period tenant would be governed by same terms and conditions unless the terms and conditions are shown to be repugnant to the rent laws. In the instant case, there is no condition in respect of payment of rent by particular date therefore as observed above the payment of rent would be made in accordance with section 15(2)(ii) of the Rent Ordinance. Next contention of the learned counsel for appellant is that the respondent/landlady could not evict the appellant/tenant from the premises on the ground of personal requirement in good faith as the period of tenancy as stated in tenancy agreement Ex. A./1 had not expired on the date when the ejectment application was filed. It is correct that the ejectment application was filed on 26.1.1993 while tenancy period was to expire as per Ex. A/1 on 31st May, 1993. This fact has not been denied by the learned counsel for the respondent/landlady that the tenancy period was to expire on 31st May, 1993. Admittedly, in terms of tenancy agreement the appellant/tenant has to remain in the premises till 31st May, 1993, subject to condition mentioned in the tenancy agreement Ex. A/1. It is not the case of the respondent/landlady that she served the appellant/tenant with a notice with two months period to vacate the premises as provided in para 12 of the agreement Ex. A/1 therefore the appellant/tenant would not be entitled to repudiate the terms of agreement in respect of period of tenancy unilaterally when there has been no cause of action to the respondent for seeking the eviction of the appellant/tenant from the premises on the ground of personal requirement which could have accrued to her, when she would have given two months notice to vacate the premises to the appellant/tenant. Reference is made to Mrs. Zahra Begum vs. M/s. Pakistan Burma Shell Limited (PLD 1984 S.C. 38) wherein Supreme Court of Pakistan held: "In this view of the matter if at the time of entering into lease agreement in 1965 the landlord knew that he was bartering away his personal need under the law then in force he caiinot under the statutory provision made in the Ordinance turn back to repudiate the terms of the agreement. In the first place the Ordinance keeps alive the contract and professes to protect as much the right of the tenant as that of that landlord. In the second place even if there was such a right available under the law it stood waived because it is not public policy, but of personal privilege which the landlord could forego for valuable consideration In view of a valid subsisting contract between the parties the appellant/landlord cannot invoke he ground of personal .requirement and that his application is premature On the point of personal bonafide need, the respondent/landlady in her affidavit-in-evidence has stated that she needed the premises for her bonafide need as she would carry on the garment business in the premises. In support, he has also produced Ex. A/2, photocopy of letter from Almurtaza written to Hina Garments wherein the respondent/landlady has been informed about the description of the sewing machines and their rates and has also produced photocopy of Ex. A/3, a letter written to Manager, Singer Machine, wherein she has asked for complete and accurate estimate in respect of 40 stitching machines. On the other hand the appellant/tenant has denied that the respondent/landlady needed the said premises in good faith for her personal need on the ground that she did not disclose in the eviction application the fact that she was already carrying on the garment business in the name and style of Hina Garments so as to 'enable the appellant/tenant to make enquiry about the accommodation and suitability of the said premises where the said business was carried out by the respondent/landlady therefore the said suppression would reflect that the respondent/landlady's requirement was not based on good faith. Besides above the appellant/tenant has stated that the respondent was having in her occupation third floor and other shops on the ground floor but she has asked for the possession of the premises in occupation of the appellant/tenant which would show that need of the respondent/landlady was not based on good faith. It is settled law that it is the prerogative of the landlord/landlady to have a choice of the accommodation which would be suitable for his her need and that right could not be given to a tenant therefore in the instant case also it could not be said that the respondent/landlady should not have asked for the possession of the ground floor in occupation of the appellant for her need. Reference is made to Agaria Amir All vs. Abdul Mqjid (1993 SCMR 67), Muhammad Bashir vs. Sakhawat Hussain (1991 SCMR 846), and National Bank of Pakistan vs. Shaikh Muhammad Sharif and three others (1993 CLC 2272) wherein learned Judge in Chamber at page 228 observed::- "Likewise the suitability or sufficiency of accommodation is the prerogative of the landlords and not of the tenant. Several rulings can be cited in support of this view, but I abstain from encumbering this judgment by quoting them which, in my opinion, is unnecessary." However, in the instant case, the point for decision would be whether the ejectment application in the circumstances of the case on the ground of bonafide need would be competent when the period of tenancy has not expired though as per evidence on record the respondent/landlady has proved her requirement in good faith. My answer would be in negative. Reference is made to Mrs. Zehra Begum vs. M/s. Pakistan Burmah Shell Limited reported in PLD 1984 S.C. 38 wherein Supreme Court of Pakistan held that landlord cannot turn back to repudiate the terms of the agreement when the Rent Ordinance has kept alive such contract and that the bonafide requirement of the premises by landlord for his own use and occupation or his spouses or any of his children would not be allowed in view of subsisting contract between the parties whereby landlord could be allowed to invoke the eviction on the ground of personal requirement. In the instant case, it has already been stated that lease was to be expired on 31st May, 1993, while eviction application was filed on 26.1.1993 therefore the ejectment application was premature on the ground of personal bonafide need and further that no notice as required by para 12 for the period of two months was served upon the appellant/tenant therefore there was no cause of action for ejectment on the personal bonafide need against the appellant/tenant. In the circumstances, the finding of the Rent Controller on Issue No. 2 is not based on proper appreciation of law keeping in view of the stated facts, therefore same is set aside holding that the respondent/landlady could not have made ejectment application against the appellant/tenant on the ground of personal bonafide requirement before the expiry of tenancy period. Mere fact that the period of tenancy expired during the period of litigation would not make the ejectment application as competent. The finding of the Rent Controller on the point of default in the payment of rent is maintained in this appeal. Consequently, appeal has no merits which is hereby dismissed. However, the appellant/tenant is directed to hand over the vacant possession of the premises to the respondent/landlady within 90 days from the date of this order subject to deposit of rent regularly in the office of the Rent Controller. (MMA) . Appeal dismissed.

PLJ 1996 Karachi 328 PLJ 1996 Karachi 328 Present: kamal mansur alam, J. Mst. ABIDA BASHIR and 4 others-Plaintiffs versus M/S BLUE LINES AIRCONDITIONED LUXURY COACH SERVICES, and 6 others Defendants Suit No. 607 of 1985, decreed on 8.11.1995. (i) Damages­ '—Death in road accident-Damages-Claim of--Amount of compensation claimed by plaintiffs is Rs. 19,01,400/- based in deceased's salary and life expectancy of 75 years--Rs. 2750/- is accepted as monthly salary of deceased at time of his death with annual increment of Rs. 100/- which is not unreasonable-Deceased was 40 years old and in view of life expectancy upto 65 years of age, he would have earned Rs. 1,85,000/- out of which a reasonable portion has to be deducted towards his personal xpenses~Rs. 395000/- deducted towards personal expenses of deceased nd suit decreed for Rs. 7,90,000/- against defendants No. 1, 2 and 3 jointly and severally. [Pp. 332 & 333] D,E,F,G,H & J (ii) Rash and Negligent driving-- —Death in road accident-Damages-Claim of—It is established from evidence that Bashir Ahmad deceased was shifted from Abbasi Shahid Hospital to Medicare to provide him better treatment for injuries sustained by him where he died afterwards-Accident is alleged to have taken place due to rash and negligent driving by drivers of two vehicles- Defendants No. 1, 2, 3, 6 and 7 have not denied this allegation in their written statements-Evidence of widow and brother of deceased is based on report given to them by others and is merely hearsay evidence-­ Certified copy of deposition of one Maula Bux recorded in another case which was not between same parties, cannot be accepted-Held : On basis of evidence available, finding is that accident was result of rash and negligent driving of Blue Lines Coach belonging to defendant No. 1. [P. 330 to 332] A, B & C Mr. WazirAli F. Wazir, Advocate for Plaintiffs. Mr. Abdul RaufKhan, Advocate for Defendants 6 & 7. Mr. S.M. Shahudul Hag, Advocate for Defendant No. 5. Date of hearing: 8.11.1995 judgment By this suit, the plaintiffs seek to recover from the defendants Rs. 19,01,400/- by way of damages under the Fatal Accidents Act for the death of one Bashir Ahmad F. Vazir said to have died as a result of accident caused due to rash and negligent driving of vehicles involved in the accident. The facts as alleged by the plaintiffs are that the plaintiff No. 1 is the widow of late Bashir Ahmad, plaintiffs No. 2, 3 and 4 are his sons and plaintiff No. 5 his mother. Bashir Ahmad died on 25-6-1984 as a result of injuries sustained by him in the accident which occurred on 16-6-1984 on the super highway, between the Coach, owned by defendant No. 1, in which the deceased was travelling from Hyderabad to Karachi, and a truck, belonging to defendant No. 6 and driven by defendant No. 7, due to rash and negligent driving of their respective drivers. In that accident 10 persons including the driver of the coach are said to have died on the spot and 6 persons, including deceased Bashir Ahmad, were seriously injured and later, on 25-6-1984, Bashir Ahmed died. On the pleadings of the parties following issues were adopted :- "1. Whether deceased Mr. Bashir Ahmad died due to injuries sustained by him in a road accident at Super High Way on 16th June, 1984. 2. Whether the above accident was result of negligent and rash driving of luxury coach of Messrs. Blue Lines. OR Whether the above accident was result of negligence of both the drivers i.e. One of Blue Lines and the other of N.L.C. 3. To what amount of damages Plaintiffs are entitled for the loss of life of Bashir Ahmed. 4. Whether the Defendants are severally and jointly liable to pay the damages to the Plaintiffs. 5. To what relief, if any, the Plaintiffs are entitled to. 6. What should the Decree be. 7. Whether Suit is not maintainable against Defendant No. 5. \ 8. ssue No. 1. This issue pertains to the cause of death of Bashir Ahmed. According to paras 2 and 3 of the plaint, Bashir Ahmad dies on 25-6-1984 of injuries received by him in the accident which took place on the Super highway on 16-6-1984 between defendant 1's Coach No. 856-865, on which the deceased was travelling, and defendant 6's vehicle No. 824-068, both being driven rashly and negligently, by their respective drivers. In reply to the above assertion the defendant No. 1 to 3 in paras 2 and 3 of their written statement have admitted the accident and also that Bashir Ahmed was injured in consequence thereof and removed to the Abbasi Shaheed Hospital, but do not admit, for want of knowledge, if later he died due to those injuries. Defendant Nos. 6 and 7 in their pleading as also evidence have admitted the occurrence of the accident only. Plaintiff No. 1, the widow of the deceased who was examined as P.W. 1 and one Nisar Hussain, the brother of the deceased examined as P.W. 3, have both in their depositions, narrated the cause of the accident and the injuries sustained by Bashir Ahmed. However, admittedly their statement on the point was based on what others informed them and therefore, as hearsay evidence cannot be relied upon. The two eye witnesses examined in the case are both on behalf of defendant No. 6 and 7. One of these is Muhammad Shafi (D.W.I ) and the other Taj Ali Khan the defendant No. 7. These witnesses have given the details of the accident but they neither said anything about the injury to Bashir Ahmed nor were asked any questions about that. Other defendants did not examine any witnesses. The position that emerges from the above discussions is that, the occurrence of the accident is established from the pleadings of the parties as well as the evidence on record, but for the alleged injuries to Bashir Ahmad resulting from that accident, there is no direct evidence. However, as far as defendants 1 to 3 are concerned such injuries as also Bashir Ahmed's admission in Abbasi Shaheed Hospital are admitted in their joint written statement. As for the events that took place after Bashir Ahmed's admission in Abbasi Shaheed Hospital on 16-6-1984 and his death at Medicare Hospital on 25-6-1984 there is un-rebutted evidence of deceased's widow (P.W. 1) and his brother (P.W. 3): According to these witnesses, on receiving information about the accident they reached Abbasi Shaheed Hospital and in order to provide proper treatment they shifted him to Medicare Hospital where he underwent skull surgery too but ultimately died on 25-6-1984. Deceased's widow has stated that, "It took us one hour to make arrangement of his shifting from Abbasi Shaheed Hospital to Medicare Hospital. I produce as Exh. 7/4 the memo dated 16-6-1984 from Abbasi Shaheed Hospital. He remained admitted at the Medicare Hospital for nine days. His brain was operated upon and he was administered medical care throughout. His both legs were broken and were plastered. The hands were also broken and were plastered. On the tenth day my husband Bashir Ahmad expired. I produce death certificate from Medicare as Exh. 7/5.." It is thus established from the evidence of P.W. 1 and P.W. 3 that Bashir Ahmed as shifted by them from Abbasi Shaheed Hospital to Medicare on 16.6.1984 to provide him better treatment for the injuries sustained by him and it was in the latter hospital that he died on 25.6.1984. The upshot of the above discussion is that having regard to the admission contained in the joint written statement of defendants No. 1 to 3 and the evidence mentioned above, in so far as defendants No. 1 to 3 are concerned, this issue is answered in the affirmative. Issue No. 2 : The allegation in the plaint is that the accident in question took place due to rash and negligent driving by the drivers of the two vehicles, namely, Blue Lines Coach and NLC Truck, belonging to defendant 1 and defendant 6 respectively. Of course, the defendants 1, 2 and 3 as also defendants 6 and 7 in their written statement have denied the allegation. The widow of deceased Bashir Ahmad (P.W. 1) and his brother have stated in their evidence that the accident took place due to rash and negligent driving by the drivers of the two vehicles. However, both have admitted that their information is based on report that was given to them by others and therefore as a mere hearsay this statement cannot be given weight. In this regard plaintiff s counsel also referred to Ext. 7/14 which is a certified copy of the deposition of one Moula Bux recorded in another suit bearing No. 356/85. This document was produced by P.W. 1 who was admittedly not a party in that suit. It was strenuously argued that Ext. 7/14 being a certified copy of the deposition of an eye witness to the accident, in another suits, arising out of the same accident should be read as evidence in this suit also for determining the question of negligence. I am afraid it is not possible to accept the contention for the simple reasons that the condition of section 47 of Qanun-e-Shahdat for accepting such evidence are not met, in asmuch as, neither the earlier suit was between the same parties nor has it been shown that the witness was dead or could not be found or was incapable of giving evidence or was kept out of the way by the adverse party or his presence could not be obtained without unreasonable delay or expense. Moreover this document does not show that the accident referred to by the witness was the same accident which is the subject matter of this suit as the registration numbers of the vehicles involved are nowhere mentioned therein. Relevant on this point are the depositions of defendant No.. 7, Taj Ah' Khan (D.W. 2) and Muhammad Shafi (D.W. 1). Taj Ali Khan was driving the truck involved in the accident and Muhammad Shafi another NLC truck following D.W. 2's truck. According to D.W. 2 he was driving on the left side of the road when the Blue Lines Coach overtook a cement truck and in doing so collided with his truck. He stated that he was driving the truck at the speed of 25 miles per hour, while the Blue Lines Coach was travelling at a very fast speed. He denied the suggested that while driving at a fast speed he overtook another vehicle and while doing so hit the coach which too was overtaking a vehicle. He insisted that it was the coach alone which had overtaken a vehicle and had hit hist ruck. Muhammad Shafi (D.W. 1) who was driving another NLC Truck which was following the truck which met with the accident also stated that the coach was travelling in speed and while trying to overtake a truck it hit the NLC truck ahead of him. He too denied the suggestion that the NLC truck was also overtaking a vehicle at the time of accident. No witness has been examined on behalf of the defendants 1, 2 and 3 and there is no other evidence on record to explain as to how the accident took place. Accordingly, on the basis of the evidence available my finding on this issue is that the accident was the result of rash and negligent driving of the Blue Lines Coach belonging to defendant No. 1. Issue No. 3 and 5 : These connected issues may conveniently be taken up together. The amount of compensation claimed by the plaintiffs is Rs. 19,01,400/-, based on deceased Bashir Ahmed's alleged monthly salary of Rs. 2750/- with Rs. 100/- anticipated annual increment and life expectancy of 75 years. It is settled that quantum of damages for purposes of the Fatal Accidents Act is linked with the financial suffering of the dependents of the deceased and is therefore estimated on the basis of earning capacity of the deceased and Lhe period of which the benefit would have been available to the dependants. In the present case, for determining the earning capacity of the deceased, we may take into acQount the available evidence about his earning at the time of death and prospects of future advancement. On this point the evidence on record consists of averments made in the plaint, the deposition of the widow and the brother of the deceased and a certificate of salary issued by the employer of the deceased. In paras 9 and 10 of the plaint it has been stated that the deceased was employed in National Impex (Pvt) Ltd. as Manager and was drawing monthly salary of Rs. 2750/-. In their deposition, both, Mst. Abida Bashir the widow of the deceased (P.W. 1) and his brother Nisar Hussain (P.W. - 3) have reiterated that the deceased Was earning Rs. 2750/- per month by way of salary from National Impex (Pvt.) Ltd. In this regard Nisar Hussain also produced as Exh. 10/6, a salary certificate from National Impex (Pvt) Ltd. certifying that at the time of his death the deceased was working as their Manager on monthly salary of Rs. 2750/-. No evidence in rebuttal has been produced by any of the defendants. I would therefore accept Rs. 2750/- as the monthly salary of the deceased Bashir Ahmed at the time of his death. By way of progressive increase in the salary annual increment in the salary at the rate of Rs. 100/- each year has been claimed in the plaint as also in the deposition of P.W. 3. System of annual increment is well established in this country and is accepted as a term of service, both, in government and private employment. As such considering the quantum of deceased's salary, annual increment of Rs. 100/- as claimed is not at all unreasonable. Next to be determined is the period for which the monetary benefit would have been available to the family, and this would of course depend on the life expectancy of the deceased and the age upto which he could be expected to earn. The general trend in decisions of Superior Courts hero, in cases under Fatal Accidents Act, has been to assume life expectancy of 60 to 65 years. Therefore, in this case too I would take the life expectancy of the deceased to be 65 years. Having regard to the fact that the deceased was in private service where rule of retirement at the age of 60 years may not be very rigidly followed it could be expected that he would have continued in | F service also upto 65 years of age. On the question of deceased's age at the time of death, his widow has deposed that it was 40 years and this finds support from the photo copy of deceased's national identity card produced as Exh. 7/17, showing his year of birth as 1944. As such I accept deceased's age as being 40 years at the time of death. Accordingly the deceased would have continued to earn and support the plaintiffs of almost another 25 years. Now on the basis of deceased's earning as determined earlier, he would have earned during this period a total sum of Rs. 11,85,000/-. Out of this earning a reasonable portion has to be deducted towards the personal expense of the deceased. Obviously this has to be based on guesswork and generally the Courts in Pakistan have accepted such expense to be 1/3 of the earning. I would adopt the same ratio for the present case too. On this basis the personal expense of the deceased works out Rs. 3,95,000/- and after deducing this amount from the total earning there remains a balance of Rs. 7,90,000/- to which the plaintiffs would be entitled to as damages. On these two issues my finding is that the plaintiffs are entitled to Rs. 7,90,000/-- by way of damages. Issue No. 4 : In view of my findings on issues No. 1,2,3 and 5 on issue No. 4 I hold that defendants No. 1, 2 and 3 are jointly and severally liable to pay damages to the plaintiffs. Issue No. 5: As none of the counsel made submissions on this issue I would take this to have been given up. Issue No. 6 : For the reasons discussed above the suit is decreed against defendants No. 1, 2 and 3 jointly and severally in the sum of Rs. 7,90,000/- with proportionate costs and out of the decretal amount the plaintiff No. 1 (widow of the deceased shall get Rs. 1,00,000/- the plaintiff No. 5 (mother of the deceased) shall get Rs. 15,000/- and the balance amount of Rs. 6,75,000/- together with costs shall be divided equally amongst the three minor sons of the deceased namely, plaintiffs No. 2, 3 and 4, so however that for the present the shares of the three minors shall be deposited in Court and be invested in profit bearing Government security, and shall remain so deposited until the minors attain majority or the Court otherwise directs, provided further that if the plaintiff No. 1 desires, the profit earned from the investment of minors shares would be paid to her from time to time for the maintenance and upbringing of the minors. Suit against defendants No. 4 to 7 is dismissed. (ZB) Suit decreed

PLJ 1996 Karachi 334 PLJ 1996 Karachi 334 Present: RANA BHAGWAN DAS, J. TASLIMUL ISLAM-Petitioner versus ADDITIONAL COMMISSIONER, KARACHI and 9 others-Respondents Const Petition No. S-57 of 1989, dismissed on 11.2.1996. (i) Settlement & Rehabilitation Matters- —Evacuee shop-C.S. Form for transfer of-Acceptahce of~Challenge to-Contention that cancellation of highest bid of petitioner without show cause notice is illegal and nullity in eyes of law—Petitioner was heard at least by three notified officers before setting aside auction proceedings-Auction proceedings had not matured due to non-issuance of transfer documents in his favour-Notwithstanding delay in payment of transfer price by predecessor of private respondents, his entitlement was neither cancelled nor recalled-Property continued to remain available for transfer to predecessor of private respondents notwithstanding inaction on part of Settlement Authorities-Petitioner having been heard at length, he can have no grievance to say that he was condemned unheard- Held : Respondent No. 1 was perfectly justified in setting aside auction proceedings which were found ab-initio void-Petition dismissed. [P. 339]B & C (ii) Settlement & Rehabilitation Matters- —Evacuee shop-C.S. Form for transfer of-Acceptance of—Challenge to~ Contention that second C.S. Form filed by predecessor of private respondents for transfer of shop was not warranted by law as he did not prefer appeal against order rejecting his first C.S. Form-Although predecessor of private respondents had right of appeal against order of rejection of his first C.S. Form, but after change in transfer policy, he had acquired a valid right to apply for transfer of property under revised policy-Held : In view of announcement of revised policy, it was neither incumbent upon predecessor of private respondents nor necessary for him to prefer an appeal. [P. 338] A Mr. Shakeel Ahmad, Advocate for Petitioner. Ch. Muhammad Iqbal, Advocate for A.G. Sindh for Respondents 1 & 2. Mr. Ahmad YousufAli Razvi, Advocate for Respondents 3 to 10. Date of hearing: 7.2.1996 judgment By this petition under Article 199 of the Constitution, petitioner has sought the following reliefs : (a) The impugned order dated 4.5.1989 is illegal and without lawful authority and is liable to be set-aside :- (i) That the proceedings initiated by respondent No. 2 on the applications dated 17.10.1981 and dated 2.3.1982 filed by late Muhammad Saeed for finalization of transfer of the property in question and subsequently finalised by the respondent No. 2, were illegal, coram non-judice and consequently impugned order dated 4.5.1989 (Annexure 'U') was passed without lawful authority, and was illegal, without jurisdiction, inoperative and nullity in eyes of law and consequently set-aside. (ii) That the application filed by Muhammad Saeed in CS Form dated 18.7.1959 (Annexure 'H') having been rejected finally, all subsequent proceedings and/or actions, taken on CS Form dated 10.11.1959 (Annexure 'J') illegally filed by Muhammad Saeed, were illegal, without jurisdiction and without lawful authority including the order dated 8.12.198$ (Annexure 'V'). (iii) That the auction held in favour of the petitioner on 28.2.1974 was valid and legal and the transfer of the property in favour of the petitioner being highest bidder subsists and is final. (iv) That the permanent transfer order dated 8.6.1987 issued to the respondents No. 3 to 10 in pursuance of the illegal order (Annexure 'V') is also illegal, inoperative and of no legal consequences. 2. Brief facts leading to this petition are that shop No. O.T. 3/48 situated in Methadar Chowk, Karachi being in occupation of late Muhammad Saeed, he applied for its transfer on C.S. Form on 18.7.1959 which was rejected by the Deputy Settlement Commissioner vide order dated 31.10.1959 for the sole reason that there was no allotment order in favour of the applicant. However Chief Settlement Commissioner by notification dated 7.10.1959 revised the transfer policy by waiting the condition of allotment in respect of an application by occupants for transfer of an evacuee house or a shop. Quite naturally Muhammad Saeed filed second C.S. Form for the transfer of the said shop on 10.11.1959 on the basis of his occupation. Accordingly letter dated 5.12.1959 was issued to him accepting in principle the transfer of the property to him for consideration of Rs. 15,360/- payable in instalments. As the said Muhammad Saeed did not pay up price nor produced his Compensation Book for adjustment of the transfer price, a final notice dated 24,9.1960 was issued to him by the Deputy Settlement Commissioner warning him that unless he accepted offer by making necessary payment either in cash or by presenting his Compensation Book for adjustment of the transfer price within one week of the notice, case will be consigned to record and property disposed of by way of auction. It seems that Muhammad Saeed did not respond to the aforesaid notice and the property was put to public auction in 1971 and 1972 on different dated and finally on 28.2.1974 highest bid of the petitioner was recorded and subsequently accepted. 3. The case of Muhammad Saeed however is that he had submitted his letter of acceptance on 30.1.1960 by post followed by a reminder dated 12.3.1960 but no action was taken by the Settlement department. After the auction of the property in favour of the petitioner, Muhammad Saeed on 19.3.1974 submitted an application to the Deputy Settlement Commissioner equesting him to adjust the transfer price from his own Compensation Book submitted with his "W" Form to the eputy Settlement Commissioner Nawab Shah as well as from the Compensation Book of his wife pending issuance with the then Settlement Head Quarters at Lahore. It may however be observed that on the face of the bid sheet there is an endorsement by Settlement Inspector dated 7.3.1974 that no "O" Form had been received. 4. On 2.3.1982 Muhammad Saeed moved an application before the Deputy Settlement Commissioner for issuance of transfer document in his favour while during the pendency of his application petitioner's attorney Muhammad Hayat moved a similar application on 20.3.1982 for issuance of transfer document in his favour in pursuance of acceptance of his highest bid in the public auction duly confirmed by the competent authority on 7.3.1974. Since the Settlement laws were repealed with effect from 1st July, 1974 and officers were notified to act under section 4 of the Displaced Person Laws (Repealed) Act, 1975 (hereinafter referred to as the Act, 1975) Additional ommissioner, Karachi being a notified officer death with both these applications an by his order dated 8.12.1986 held that the auction proceedings were ab-initio void and nullity in the eyes of law and thus liable to be ignored for the reason that the application regarding transfer of the property of Muhammad Saeed had not been finally disposed of. 5. Aggrieved by this order, petitioner filed C.P.S.-88/1987 which was heard by Ahmed Ali U. Qureshi, J. (as he then was) who by consent of the parties remanded the case back to the notified officer to find out from the record whether C.S. Form dated 18.7.1959 was actually filed by Muhammad Saeed and order dated 31.10.1959 passed thereon. On remand, notified officer, by his order dated 26.11.198$ came to the conclusion that after the rejection of his first C.S. Form in view of change in the transfer policy a fresh cause of action arose to late Muhammad Saeed who validly filed the second C.S. Form for transfer of the property. Accordingly he held that after the death of Muhammad Saeed his legal heirs were entitled to transfer of the property. This order once again was impugned in C.P. No. S-3/1989. For the second time by consent, order dated 26.11.1988 was set aside and the case was remanded to the notified officer for decision on the following issues : 1. Whether the auction was held during the pendency of C.S. Form of Muhammad Saeed predecessor in interest of the respondents No. 3 to 10 ? If so, what is its effect ? 2. Whether the auction was held after notice to Muhammad Saeed ? 6. For the second time after the remand of the case, notified officer by his order dated 4.5.1989 concluded that after the transfer of the property in favour of Muhammad Saeed it went out of the evacuee pool and was no more available for transfer in any manner unless its entitlement order was cancelled and property resumed for fresh disposal. He further held that the chapter of transfer proceedings in respect of C.S. Form filed by Muhammad Saeed remained open till 8.6.1987 when transfer order No. KYC/DC/EP- 22057 was issued in favour of legal heirs of late Muhammad Saeed. On the question of auction he held that it was held without any notice to Muhammad Saeed within was not necessary. He concluded that the auction conducted on 28.2.1974 in favour of the petitioner related to property which was never available for disposal on the date of auction which could be termed as illegal, void ab initio and nullity in the eyes of law. Consequently the notified officer upheld the transfer of property in favour of legal, heirs of Muhammad Saeed. It is as against this order that the present petition was filed with the prayers reproduced hereinabove. 7. Mr. Shakil Ahmed learned counsel for the petitioner has raised the following contentions: (i) That second C.S. Form filed by late Muhammad Saeed for transfer of the shop was not warranted by law as he did not prefer appeal from the order rejecting his first C.S. Form. (ii) That the deceased had mis-declared before the Settlement authorities while submitting his second C.S. Form that he was in occupation of the property. (iii) That the cancellation of acceptance of the highest bid offered by the petitioner without a show cause notice is illegal and nullity in the eyes of law. 8. On the other hand, Mr. Ahmed Yousuf Ali Rizvi learned counsel for the contesting respondents supported the impugned order for the reason that the same was passed after due consideration of the facts on record and the available evidence. 9. Dealing with the first contention of the learned counsel for the petitioner, it may suffice to say that though right of appeal was available to deceased Muhammad Saeed after the rejection of his first C.S. Form for the reason that there was no allotment order in his favour. The fact however remains that with the change in transfer policy in respect of evacuee properties available for disposal waiving the condition of producing an allotment order late Muhammad Saeed had acquired a valid right to apply for transfer of the property under the revised policy. It may be pertient to observe that his first C.S. Form was rejected vide order dated 31.10.1959 whereas the Chief Settlement Commissioner by notification dated 7.10.1959 had issued the revised transfer policy thereby waiving the condition of producing an allotment order. In view of the announcement of revised policy it was neither incumbent upon late Muhammad Saeed nor necessary for him to prefer an appeal from the rejection order as the same was likely to fail for the simple reason that he could submit a fresh form for transfer of the roperty on the basis of his occupation even without an allotment order in his favour. There is thus no substance in the argument advanced which is fallacious and without any merit on the face of it. 10. Adverting to the second contention, it may be observed that this point was not raised before the Settlement authorities and more particularly before the notified officer during the proceedings in connection with the issuance of transfer order in favour of the deceased or the petitioner. Additionally, it may be observed that there is hardly any evidence to conclude that the deceased was not in occupation of the properly on the date of application for its transfer on the basis of his occupation. Learned counsel when called upon to substantiate his arguments referred to photo copy of an extract from PT-I Register maintained on the basis of Assessing Authority's order dated 30.6.1968. In this extract Muhammad Saeed is shown to be the owner of^the property whereas Feroze Hoisery with Ferozuddin as its proprietor is shown to be the occupier. To my mind, the document on the face of it is neither authentic nor conclusive evidence to prove the occupation of a person other than the deceased. Besides these entries are maintained for fiscal purposes in order to collect revenue from the owner of the property. At any rate crucial date of occupation in respect of immovable property would be 20.12.1958 or later as extended from time to time. Mere entry in the name of Ferozuddin in the column relating to occupier in the record maintained by the Excise & Taxation Department would not by itself be _ - _. sufficient to disentitle the deceased to seek the transfer of the properly on the basis of occupation. It is a matter of common knowledge that all evacuee properties were surveyed by the authorities under the Settlement and Evacuee laws and in all probability Settlement authorities are supposed to have consulted their records while accepting C.S. Form for transfer of the property on the strength of occupation. There is thus no substance in this contention as well which must fail. 11. Reverting to the last contention raised on behalf of the petitioner, it would suffice to say that the petitioner was heard at length by three different notified officers before setting aside the auction proceedings, in his favour which did not mature by non-issuance of transfer documents in his favour. It was rightly observed by the authorities acting under the provisions of Act, 1975 that in view of pendency of the proceedings relating to transfer of the property on the basis of C.S. Form submitting by late Muhammad Saeed, the property could not be resumed and disposed of under the Settlement Scheme through a public auction. There is no denial of the fact that notwithstanding delay in the payment of transfer price on the part of the deceased, his entitlement was neither cancelled nor recalled. Thus the property continued to remain available for transfer to him notwithstanding inaction on the part of Settlement authorities. There is no gain saying that the property was available for disposal to displaced persons within the meaning of Para 1(2) of Settlement Scheme No. VIII notified in the gazette of Sindh, Part I, dated 16th August, 1973. 12. In the peculiar facts and circumstances of the case in my view respondent No. 1 was perfectly justified in setting aside the auction proceedings which were undertaken in a haphazard manner and without the least regard for the provisions of law dealing with the property available for disposal. Since the petitioner was heard at length in all possible manner he can have no grievance to say that he was condemned unheard. Needless to observe that no transfer document having been issued in his favour perhaps he could not claim a notice. At the most after the auction proceedings having been found to be ab-initio void and nullity in the eyes of law he would only be entitled to seek refund of the auction money, if paid by him. 13. For the facts and reasons discussed above, there is no merit in this petition which must fail and is hereby dismissed with costs. (ZB) Petition dismissed.

PLJ 1996 Karachi 339 PLJ 1996 Karachi 339 Present: syed deedar hussain shah, J. M/s ARROW TRADING COMPANY-Plaintiff Versus HYOSUNG CORPORATION, SEOUL, KOREA and two others-Defendants C.M.A. Nos. 377 and 378 of 1996, in Suit No. 683 of 1995, dismissed on 11.2.1996 Civil Procedure Code, 1908 (Act V of 1908)-- —O.XXI R. 46 read with Order XXXVHI R. 5-Recovery of certain amount- Suit for-Attachment of two L.Cs. before judgment-Prayer for-It is a matter of record that there is no privity of contract between plaintiff and defendant No. 1 whereas defendant No. 2 is court of Commercial Arbitration in Seoul, Korea, to which matter has been referred for arbitration by plaintiff himself-Arbitration proceedings are still pending with defendant No. 2--A bare reading of Order XXI Rule 46 and Order (XXXVIII R. 5 of C.P.C. prima facie does not support case of plaintiff-­ Attachment before judgment cannot be claimed on plea that efendant is a foreigner and does not own property in Pakistan-Even plaintiff has factually not sought permanent injunction-Held : Plaintiff has failed to make out case for grant of attachment before judgment-Both applications dismissed. [Pp. 350, 352 & 353] A, B & C PLD 1975 Kar. 707, PLJ 1978 Kar. 88,1982 CLC 1409, PLD 1985 Kar. 745, and 1991 MLD 1232 not applicable AIR 1934 Sindh 135(1), 1974 SCMR 519,1985 CLC 261, 1986 CLC 303, 1987 CLC 1533,1986 MLD 1356, PLD 1990 Kar. 1, 1992 MLD 2374 and (1981) 3 All ER 607 rel. Mr. Raja Qureshi, Advocate for Plaintiff. Mr. Arshad Tayyabally and Mr. Mansoorul Arfin, Advocates for Defendant No. 1. Date of hearing: 24.1.1996. judgment The plaintiff has filed the suit for recovery of Rs. 55,73,790/-. The brief facts of the suit are that the plaintiff entered into a contract with defendants No. 1 and 3 for the import of polywinyl chloride PVC Cost for a quantity of 543 Metric Tons and established Letter of Credit as per intent issued by M/s. Al-Riaz Agencies, defendant No. 3 who are local agents of defendant No. 1 Korean Firm/suppliers. Defendants No. 1 and 3 insisted for the enhancement of the Unit price by US dollars 70 per metric ton, which displayed weakness of the supplier concerned. However, the plaintiff agreed to enhance the unit price but the defendants 1 and 3 did not honour their contractual obligations and made only two part shipments, one of 81 metric tons and the other of 79.50 m/tons and thereafter the defendants No. 1 and 3 kept silent for the shipment of the balance quantity. The plaintiff wrote letters to the defendants and also addressed letter to the Commercial Attache, South Korea Trade office at Karachi to resolve the matter but the efforts made by the plaintiff did not bear fruits, therefore, as a last resort, the plaintiff approached the Korean Commercial Arbitration Board at Seoul, Korea. According to the plaintiff the defendants have no any movable or immovable properties in Pakistan which could be sought to be attached. But another party namely M/S. Prime Star Industries (Pvt) Ltd. Peshawar had opened L/C in favour of the defendant No. 1, in Allied Bank of Pakistan Ltd., Peshawar Cantt. Branch, Peshawar for US $ 101,760/- which will be matured by 12,10.1995 and another L/C in favour of defendant No. 1 established by M/S. Ghelli Trading Corporation not Schon Bank Ltd. Karachi Branch. Karachi for US.$ 96,673/- to be matured on 14.10.1995. The prayer of the plaintiff is as follows : (a) For judgment and decree in favour of the plaintiff against the defendants jointly and severally for a sum of Rs. 55,73,790/- with interest (at) the bank rate till realization of the claimed amount; (b) Cost of the suit; (c) Any other relief as deemed fit and proper in the circumstances of the case. The plaintiff moved an application bearing No. CMA 5058/95 under Order 21 Rule 46/47 CPC read with order 38 Rule 5 and Section 151, CPC and on this application this Hon'ble Court passed the following order dated 8.10.1995 : (2) Notice for 12.10.1995. Ad-interim injunction as prayed is granted till then. On 21.1.1996 this application was dismissed for non-prosecution. Thereafter Mr. Raja Qureshi, Advocate filed urgent application bearing No. CMA 376/96 which was granted on 23.1.1996 and on 24.1.1996 the arguments on CMAs 377/96 and 378/96 were heard. ' CMA 377/96: I have heard Mr. Raja Qureshi, learned counsel for the plaintiff, Mr. Mansoorul Arfin, learned counsel for defendant No. 1 and Mr. Arshad Tayyebally learned counsel for Garnishee. Mr. Raja Qureshi has contended that the plaintiff has filed the suit for recovery of Rs. 55,73,790/- against defendants No. 1 and 2, who have not any moveable or immovable properties in Pakistan except 2 L/Cs opened in their favour by M/s. Prime Star Industries (Pvt) Ltd, Peshawar in Allied Bank of Pakistan, Peshawar Cantt; branch and another by M/S. Ghelli Trading Corporation on Schon Bank Ltd., Karachi Branch, Karachi. The defendant No. 3 is the local agent of defendants No. 1 & 2 at Karachi and details of their moveable or immoveable properties at Karachi are not ascertainable to the plaintiff. Unless the application is allowed the plaintiff will be seriously prejudiced. The counteraffidavit on behalf of defendant No. 4/garnishee Mr. Liaquat Ali Khan has been filed. The relevant paragraphs of the C/A are reproduced as under: "2). That M/s. Prime Star had opened L.C. with Allied Bank/garnishee in favour of defendant No. 1, of U.S. dollar 101760/- which was payable to defendant No. 1, through National Bank of Pakistan Seoul Korea on 12.10.1995. 3. That the said amount of L.C. could not be transferred to Seoul Korea due to the injunction granted by this Hon'ble Court on 8.10.1995, as such defendant No. 1, did not export goods to M/s. Prime Star in Pakistan. 4. That the amount of L.C. lying with the answering garnishee is not the property of M/s. Prime Star and not of defendant No. 1, because so long the gods are not-exported to Pakistan, the money shall remain the trust money of M/s. Prime Star and defendant No. 1 will export the goods to Pakistan only after receipt of L.C. amount by the Bank in Korea working on behalf of defendant No. 1. The money of L.C. can only be detained when it becomes the property of defendant No. 1. 5. That garnishee has also suffered a loss, of Rs. 263,101.48 due to devaluation of Pakistan rupee by Government of Pakistan as on 12.10.1995, dollar rate of exchange in Pakistan currency was Rs. 31.8701 but on 8.11.1995, the exchange rate of dollar was Rs. 34.4556 due to which the answering garnishee will have to suffer loss of Rs. 263,101.48 on total amount of L.C. in U.S. dollars 101760/- One Mr. M. Naseem Elyas son of Muhammad Elyas, Vice President of the Schon Bank Ltd., Garnishee No. 5 filed counter-affidavit on behalf of Garnishee No. 5. The relevant paragraph is reproduced as under: "4. That I also read the plaint of the suit and I am advised by our counsel, which is believed to be true, that the case of the plaintiff is merely for damages, for breach of contract and for non-delivery. Even assuming that the Supplier has failed to deliver the entire quantity of the cargo, under the law, the plaintiff is entitled merely to the difference between the contract price and the prevailing market rate on the date of breach. The foundation of the suit is entirely vague and the suit is liable to be dismissed." One Mr. Won Moo Ayun son of Won Suk Jun, Officer of defendant No. 1, filed a detailed counter-affidavit which is duly attested by Additional Assistant, Embassy of Pakistan at Seoul, Korea, and also attested by Ministry of Foreign Affairs, Korea. The relevant paragraphs of the C/A are as follows: (a) That the Defendant No. 3 had entered into a contract dated 13.4.1994 with the Plaintiff whereby the plaintiff confirmed of having sold to the said Defendant No. 3 1000 Metric Tons of Polyvinyl-chloride (PVC) of C.I.S. Origin, C&F Karachi at US $ 630/- per Metric Ton. In the contract it was agreed that the Letter of Credit is to be opened by 18.4.1994. (b) That, according to clause 12 of the contract, it was agreed that all disputes will be submitted for arbitration of the Defendant No. 2 and the Award shall be final and binding on both parties concerned. The arbitration proceedings have been commenced by the plaintiff and are still pending with the defendant No. 2. (c) That the defendant No. 3 seems to have entered into a separate contract with M/s. Tariq Brothers, Karachi and issued to them a contract No. ARA/94/HYOSUNG/122 dated 14.4.1994 for 500 Metric Tons of the goods in question. The defendant had not authorized defendant No. 3 to transfer its contract to any third party and it is obvious that the contract into between defendant No. 3 and M/s. Tariq Brothers is a separate contract between these two parties. (d) Although the contract was between the defendant No. 2 and M/s. Tariq Brothers but there was no contract with the plaintiff. The contract which is filed with the plaint by the plaintiff as Annexures A was neither signed by this defendant nor by the defendant No. 2 However, the plaintiff opened a Letter of Credit in favour of the defendant No. 1 which was advised to the defendant No. 1 by Shin Han Bank, Seoul, South Korea. The Letter of Credit was opened through Habib Bank Ltd. and whatever quantity this defendant could supply at the price mentioned in the Letter of Credit, the same was done. There was no privily of contract between the plaintiff and the defendant No. 1. (e) That without prejudice to the above, I state that even the Letter of Credit opened by the plaintiff was not as per the contract between this defendant and the defendant No. 3 and this Letter of Credit was opened after the validity time mentioned in the contract between the defendant No. 1 and the defendant No. 3. The partial shipment as per the Letter of Credit as made of about 160 Metric Tons and since no other goods were available at the L/C price from C.I.S. countries, the balance goods could not be shipped. The plaintiff has been unilaterally and without any request from this defendant extending the shipment date. Firstly it was extended upto 30.6.1994 and then upto 15.1.1995. After the expiry of the shipment date as per Letter of Credit, neither there was any request from this defendant to extent the shipment date nor this defendant agreed to the shipment date as extended by the plaintiff. (f) (f) Without prejudice, even if the contract marked "A" between the plaintiff and the defendant No. 3 is to be taken as a contract between the defendant No. 1 and the plaintiff (which fact is not admitted), it is clear that the plaintiff was required to increase the price of the goods as all the increases in the price were at the buyer's risk. The plaintiff has not filed the reverse side of the contract. However it was supplied to this defendant's counsel subsequently and under the heading "other conditions" it was agreed by the plaintiff that any increase in price shall be at buyer's account. The increase in the price was duly intimated to the plaintiff and the defendant No. 3 but the plaintiff did not amend the Letter of Credit in respect of the increase of the price." At the time of hearing of arguments Mr. Raja Qureshi was asked to satisfy the Court so far as maintainability of the suit in the present form about the jurisdiction of the Court is concerned and whether this application is also maintainable or not. Mr. Mansoorul Arfin, Advocate has contended that the suit is not maintainable and so also the application is not maintainable and this Court has absolutely no jurisdiction to hear the matter as per agreement between the parties and plaint as also the matter is pending adjudication between the Korean Commercial Arbitration in Seol and the matter has been referred there at the instance of the plaintiff and that defendant No. 2 Director of Korean Commercial Arbitration Board has no concern whatsoever with the suit and only the matter referred to the Arbitration Board at Korea is to be decided by them. That even in the suit itself damages are not claimed. No cause for grant of application is made out. Mr. Arshad Tayyebally, learned counsel for Garnishee has contended that the plaintiff is seeking attachment for the letter of credits for which he has no concern. The advising Bank has already paid the amount and that he has to pay to the Advising Bank. His client has no knowledge whether the plaintiff and defendant No. 3 having entered in this dispute or other disputes. Mr. Raja Qureshi has cited the following case law: 1. PLD 1970 SC 373 (M.A. Chowdhary v. Messrs Mitsui O.S.K. Lines Ltd. and 3 others). In this authority 3 Hon'ble Judges of the Supreme Court comprising of Hamoodur Rahman, C.J, Abdus Sattar and M.R. Khan, JJ (as they then were) have held : "I am of the opinion that in order to preserve the sanctity of contracts I ought also to hold, as was done in the earlier cases in Great Britain that such foreign jurisdiction clauses, even when they purport to give jurisdiction to a Court in foreign country, are really in the nature of arbitration clauses which come within the exceptions to section 28 of the Contract Act and therefore, should be dealt with in the same manner as other arbitration clauses. In the case of an arbitration it has to be remembered that the jurisdiction of the Courts is not altogether ousted, for, the Courts merely stay their hands to allow the parties to resort to the form of adjudication to which they have previously agreed. By only staying the .actions before them the Courts still retain to themselves the jurisdiction to resume the case if the arbitration, for any reason, fails or the parties find it impossible to comply with the form of adjudication to which they had agreed." 2. PLD 19975 Karachi 707 (Provincial Industrial Development Corporation, Karachi vs. Sh. Muhammad Amin & Co., Lyallpur). In this authority Hon'ble Dr. I. Mahmud, J. (as he then was) has held : "In this connection section 60 of the Sale of Goods Act, 1930 is relevant, which stated that where either party to a contract of sale repudiates the contract before the date of delivery, the other party may either treat the contract as subsisting and wait till the date of delivery, or he may treat the contract as rescinded and sue for damages for the breach. In either case, the measure of damages is the difference between the contract price and the market price prevailing on the due date of delivery. The measure of damages is not affected by the date of the buyer's repudiation and is the difference between the contract price and the market price on the day when the goods ought to have been accepted." 3. PLJ 1978 Karachi 88 (M/s. Mercantile Fire & General Insurance Co. (Pak) Karachi vs. M/s. Arcepey Shipping Co. U.S.A & Another). In this authority Naimuddin, J. (as he then was) has observed :"Common Carrier-Countract-Bill of lading-Suit for recovery of value of consignment short landed- Exclusive jurisdiction clause in bill of lading not honoured-Carrier's (defendant) principal office in foreign country but agent in Karachi-Defendant applying for stay of suit in view of arbitration 'agreement after filing written statement-Application for stay dismissed." 4. 1982 CLC 1409 (Colony Thai Textile Mills Ltd. vs. Messrs Zahid & Brothers). In this authority Muhammad Afzal Lone, J. (as he then was) has held : "The rule that a debtor must seek the creditor, essentially concerns the territorial jurisdiction of a Court and involves the performance of the contract, as to the repayment of money due to the creditor at place where he resides. It is well settled that section 21 makes an exception to the rule laid down in section 20, C.P.C. and passing of a decree in violation of section 20 by a Court not having territorial jurisdiction, is not fatal to its validity. It is open to a party, not to raise any objection to the place of suing or the territorial jurisdiction of the Court. Thus the respondent having declined to appear in the trial Court, despite service would be deemed to have waived off its objection to the territorial jurisdiction of the Court. It was thus not necessary for the learned Courts below who have suo muto determined the question of their territorial jurisdiction and under Order VII, rule 10, C.P.C., return the plaint to the petitioner." 5. PLD 1985 Karachi 745 (Messrs ASLO Marines Ltd. vs. M. T. Magda and another). In this authority Naimuddin, J) (as he then was) has held : "Messrs Aslo Marines Limited have filed this suit under Admiralty jurisdiction against 'M.T. Magda", an ocean-going oil tanker, defendant No. 1 (hereinafter individually called the Vessel') and her owner Atalanta Shipping Company Limited, a company incorporated and registered in Cyprus, defendant No. 2 (here-in-after individually called 'the Vessel Owners') claiming a sum of Rs. 13,02,728.70 as damages on account lof short-landing of the oil Cargo at Karachi. 2. It is the case of the plaintiffs in the plaint that under 4 charter-parties, the Vessel Owners' the vessel' to the plaintiffs for carrying crude oil from Rastanura and Jebel Dhanna (Saudi Arabian Ports) for carriage by sea to Karachi. 3. Accordingly the Vessel' carried the oil but shortlanded certain quantity mentioned in the plaint, Therefore, the plaintiffs have brought the present suit for damages as already stated in Admiralty jurisdiction of this Court." 6. 1991 MLD 1232 (Messrs Javed Garments Industries vs. Messrs Grain Lodge Limited). In this authority Abdul Rahim Kazi, J (as he then was) has held : "I have heard Mr. Syed Ishtiaq Ali Advocate for the plaintiffs who is present while none is present for the defendants. Mr. Syed Ishtiaq Ali learned counsel for the plaintiffs has submitted that the documents placed on record i.e. contracts, bills of lading, invoices and the correspondence between the parties fully substantiate the case of the plaintiffs and since they have chosen to remain absent and have failed to contest the suit, the suit ought to be decreed as prayed." Mr. Mansoorul Arfin -has contended that this Court has no jurisdiction in the matter and there is no privity of contract between the plaintiff and defendant No. 1. That defendant No 2 has been wrongly sued as it is a Court of Commercial Arbitration in Seoul, Korea and has not entered into any contract with the plaintiff. That the plaintiff having submitted itself to the Arbitration before the Defendant No. 2 cannot file the suit and/or sue and/or continue with the same. That defendant No 1 is very large trading house in South Korea and has no occasion to have any property in Pakistan. However, merely non-possession of the property does not entitle the plaintiff to pray for the attachment of, the amount in question. That even the two Letters of Credit which were opened in favour of the defendant No. 1 by Prime Star Industries (Pvt), Peshawar and by M/s. Ghelli Trading Corporation are concerned, the amounts there-under were payable under Bills of Exchange to Shin Han Bank by the importers mentioned above. As far as this defendant is concerned the Shin Han Bank has already paid the amounts to it by the Advising Bank M/s. Shin Han Bank, South Korea as per their certificate duly Notarized and also certified from the Pakistan Embassy, Seoul, South Korea. That even otherwise according to the terms and conditions of the Letters of Credit, the issuing Bank are bound to pay the amounts in Seoul to the negotiating Bank i.e. Shin Han Bank. That no amounts are payable by the issuing banks at Karachi or Peshawar and whatever amounts was and/or is payable only at Seoul, which is outside the jurisdiction of this Court. That, the debt, if any, is situated at Seoul, neither at Karachi nor at Peshawar. That no ground has been made out by the plaintiff either in the suit or in the application for attachment. Mr. Mansoorul Arfin has referred the following case law: 1. AIR 1934 Sind 135(1) Michelin Tyre India Ltd. vs. Jeewandas & Sons. Wherein Rupchand, A.J.C, (as he then was) has observed: "Where a debt is really payable at a place outside British India and if the assignment of this debt is also made, at that place then a Court in British India has no jurisdiction to attach the debt merely and solely on the ground that the debt is payable by an officer who is in charge of both the places." 2. 1974 SCMR 519 (Marghub Siddiqui vs. Hamid Ahmad Khan and 2 other) Wherein A.R. Cornelius, C.J. and Hamoodur Rahman, J- (as they then were) have observed : "The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case the application for ad interim injunction should have failed on this ground alone." 3. 1985 CLC 261 (Ay'oz Hussain Bhatti and another vs. Hqji Bagh Ali and 9 others). In this authority K.A. Ghani, J-(as he then was) has observed :"Thus, the plaintiffs having not claimed any relief in the suit for grant of permanent injunction, their application for the grant of ad interim injunction is liable to be dismissed on this sole ground." 4. 1986 CLC 303 (Messrs Iftikhar and Co. Ltd. vs. Uzin Export-Import Enterprises for Foreign Trade, Baluchistan). In this authority Abdur Rehman, J-(as he then was) has observed : "No temporary injunction could be granted to the respondent in respect of encashment of Bank guarantee and performance bond in view of the principle laid down in 1974 SCMR 519." 5. 1987 CLC 1533 (Messrs Kohinoor Trading (Pvt) Ltd. vs. Mangrani Trading Co. and 2 others). In this authority Ajmal Mian and Muhammad Mazhar Ali, JJ-(as they then were) have observed: "An irrevocable letter of credit is a negotiable document in the commercial world which is negotiated inter alia inter se between the banks and, therefore, the Court cannot lightly cause its dishonouring by one bank to another, unless prima facie a sufficiently grave cause is shown." 6. 1986 MLD 1356 (Uzin Export Import Enterprises for Foreign Trade vs. Messrs Asia Steel Industrial Aids Ltd. and 4 others). In this authority Abdul Qadeer Chaudhy and Haider Ali Pirzada, JJ-(as they then were) have observed: "When the prayer in the suit is for a decree jointly and severally against all the defendants then why UZIN has been singled out for the temporary relief. The learned single Judge has held that "the conditions required to be satisfied by a plaintiff before an order for attachment before judgment of the properties of the defendants can be passed have not been satisfied by the plaintiff. The pleadings do not show prima facie that UZIN with intent to obstruct or delay the execution of the decree that may be passed against UZIN in the present suit is about to dispose of the whole or any part of its property". It has been further observed that "It is not prima" facie established that UZIN has repatriated any amount with intent to obstruct or delay the execution of the decree that may be passed against UZIN, and he is also not inclined to grant temporary injunction restraining defendant No. 3 from making payment of any nature whatsoever in respect of any bill to UZIN. The claim for damages will have to be established by the plaintiff (ASIACON) through evidence to be recorded in the present case. Prima facie no suspicion attaches to the payment being made by ATTOCK CEMENT to UZIN. No case has been made out for. the grant of a temporary injunction." 7. PLD 1990 Karachi 1 (Balagamwala Oil Mills (Pvt) Ltd. vs. Shakarchi Trading A.G. and 2 others). In this authority Ajmal Mian CJ and Mukhtar Ahmad Junjo, J-(as they then were) have observed : "It has been held by the Superior Courts in Pakistan that attachment before judgment cannot be claimed merely on the ground that the defendant is foreigner and does not own any assets in Pakistan." 8. 1992 MLD 2374 (Unichem Corporation (Pvt) Ltd. And others vs. Abdullah Ismail and others). In this authority it was held by Salahuddin Mirza, J-(as he then was) as follows :- "A perusal of the prayer-clause of the plaint shows that it is factually correct that the Plaintiffs have not sought any permanent injunction. All that they have sought is a decree for compensation-damages and costs of the suit plus special costs. In view of this factual position and the law laid down in the judgment reported as 1974 SCMR 519 relied upon by defendant No. 1 is directly attracted in which it is held that "In a suit where no permanent injunction is claimed, no question of granting ad interim. injunction can possibly arise." This application is therefore, in may view, liable to dismissal on this ground." 9. All England Law Reports (1981) 3 All ER 607 (Power Curber International Ltd. vs. National Bank of Kuwait SAK). In this uthority Lord Denning MR. Griffiths LJ and Waterhouse, J-(as they then were) have observed : "Because letters of credit were established as a universally acceptable means of payment, equivalent to cash, in international trade and commerce on the basis that the promise of the issuing bank to pay was wholly independent of the contract between the buyer that the seller and that therefore the issuing bank would honour its obligation to pay regardless of any dispute between the buyer and the seller, and because the order of the Kuwaiti court ran counter to those internationally accepted principles, the Court would not recognise the order of the Kuwaiti court as being a ground for granting a stay of execution of the summary judgment obtained by the plaintiff. The plaintiff's appeal against the stay of execution would therefore be allowed and the stay removed." With all of my humbleness I am definite to say that the case laws cited by Mr. Raja Qureshi are not applicable and helpful so far as the case of the plaintiff to issue garnishee order in the name the Manager, Allied Bank of Pakistan, Peshawar Cantt; Branch, Peshawar and Manager, Schon Bank Ltd, Karachi Branch, Karachi, for attachment of two Letter of Credits opened in favour of defendant No. 1 are concerned. Whereas the case laws cited by Mr. Mansoorul Arfin are concerned are applicable and helpful to the case of defendant No. 1 and I respectfully agreed with the same. It is a matter of record that there is no privity of contract between the plaintiff and defendant No. 1 and defendant No. 2 is the Court of Commercial Arbitration in Seoul, Korea and the matter has been referred to the Director Korean Commercial Arbitration Board by the plaintiff himself. According to clause 12 of the Contract it was agreed that all disputes will be submitted for Arbitration to defendant No. 2 and award shall be final and binding on both the parties. That arbitration proceedings have been commenced by the plaintiff and are still pending with defendant No. 2. Mr. Arshad Tayyebally has referred me to the affidavit sworn by Mr. Liaquat Ali, an Officer in Allied Bank of Pakistan. The relevant paragraphs of the same have been reproduced hereinabove wherein it is mentioned that the amount of L/C lying with the garnishee is now the property of M/s. Prime Star and not of defendant No. 1, because so long the goods are not exported to Pakistan, the money shall remain the trust money of M/s. Prima Star and defendant No. 1 will export the goods to Pakistan only after receipt of L/C amount by the Bank in Korea working on behalf of defendant No. 1. The money of L/C can only be detained when it becomes the property of defendant No. 1. It is also matter of fact and it is not denied by the plaintiff that garnishee has already suffered a loss of Rs. 263,101.48 due to devaluation of Pakistan rupee by Govt. of Pakistan and the order of the Court passed against the garnishee is oppressive as they have already suffered a lot as mentioned, hereinabove. I would like to refer Order 21, Rule 46, CPC, as follows : "Modes of paying money under decree. -(1) All money payable under a decree shall be paid of follows, namely :- (a) into the Court whose duty it is to execute the decree; or (b) out of Court to the decree-holder (through a bank or by postal money order or evidenced by writing signed by the decree-holder or his authorized agent; or (c) otherwise as the Court which made the decree directs. 2. Where any payment is made under clause (a) of sub-rule (1), notice of such payment shall be given to the decreeholder. 46. Attachment of debt, share ,and other property not in possession of judgment debtor.-In case of~ (a) a debt not secured by a negotiable instrument. (b) a share in the capital of a corporation, (c) other movable property not in the possession of the jugdment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,- (i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court; (ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;

(iii) in the case of other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor. (2) A copy of such order shall be affixed on some conspicuous part of the Court-house and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same. (3) A debtor prohibited under clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to received the same. I would also like to refer Order 38 Rule 5, CPC, as follows : 5. Where a defendant may be called upon to furnish security for production of property. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that my be passed against him~ (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. A bear reading of the orders referred hereinabove itself prima facie does not support the case of the plaintiff. The attachment before the judgment cannot be claimed on the plea that defendant is a foreigner and in the case does not own any property in the Country. Even the perusal of the prayer clause shows that factually the plaintiff has not sought permanent injunction all that he has sought a decree for compensation and costs of the suit any other relief deem fit and proper. From the material placed with the case and case laws as discussed hereinabove, the plaintiff has not been able to make out the case for grant of the application and for the foregoing reasons I dismiss the application and recall the order dated 23.1.1996 with no order as to costs. In view of the order passed in CMA 377/96 the CMA 378/96 has become infructuous and stands dismissed. (ZB) Both applications dismissed.

PLJ 1996 Karachi 353 PLJ 1996 Karachi 353 Present: SHAFI MUHAMMADI, J. Late SAIFUDDIN through his legal representative-Applicants versus JAMIL AHMED-Respondent Revision Application No. 85 of 1995 accepted on 11-7-1995. (i) Civil Procedure Code, 1908, (Act V of 1908)-- —S. 115 read with O.XXII r. IV-General Power of Attorney-Revocation of- Suit for declaration-Death of defendant-Application by Legal heirs for impleading as defendants-Dismissal of-Challenge to--Delay in moving application under O. 22 r. 4~Effect of—If delay can be explained and no prejudice is caused to any contesting party, then delay can be over looked-No point of delay was urged by respondent when application was argued before trial Court-Held: Weapon of technical delay in moving an application should not be used in promotion of principles of natural justice. [Pp. 3357 to 359] A, B, & C 1994 CLC 544, 1994 CLC 2030 rel. (ii) Civil Procedure Code, 1908 (Act V of 1908)-- —O. 22 r. 4-Whether Revision is not maintainable against O. 22 r. 4 of CPC-Question of-It is not correct that only appeal can be maintainable in each and every case of an application under O. 22 R. 4--In a case where there is not ex-parte order and defendant is contesting against plaintiff with full force then refusal by Court to bring his L.Rs on record after his death would attracted only Revision-After amendments brought in Rule 4 Order 22 CPC through L.R.O. 1972, a suit or appeal does not abate for non impleading of L.Rs even if no application is made-Held : If L.Rs. are refused to be brought on record, such decision of court would amount to crucify justice- [P. 359] D & E AIR 1957 Madras 236 ref. (iii) Legal Representatives- —Legal representatives only step into shoes of their predecessor-Right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent, because death of deceased cannot be used as rod of right to get any concession relaxation, penalty or sympathy for any body. [P. 362] H. (iv) Words and Phrases- —O. 22 r. 4 (4), of C.P.C.-Opening sentence of sub rule 4 of Rule 4, does not give an impression of "Probibition"~Therefore, there is no prohibition in bringing LRs on record after death of any defendant. [P. 360] F (v) Words and Phrases-- —O. 22 r. 4(4), of C.P.C.--Word "or" used in sub-rule (4) of Rule 4 order 22 CPC given both impressions "Either" and "Conjunctiveness" in different situations--In case interest of L.Rs is effected directly or indirectly, then it is not proper for a court to dismiss an application under O.22 Rule 4. [Pp. 360 & 361] G. Mr. Shamsul Arifeen, Advocate for Applicants. Mr. Khalid Habibullah, Advocate for Respondents. Dates of hearing: 19-6-95, 26-6-95, 28-6-95, 3-7-95 and 11-7-1995. judgment This revision is addressed against the order of learned Vlth Senior Civil Judge, Karachi (South) passed on January 31, 1995 whereby application under Order 22 rule 4 C.P.C. filed by L.Rs of deceased defendant namely, Saifuddin for impleading them as Legal Representatives of the deceased was dismissed. 2. Facts giving rise to the present revision relate to a "twenty years old controversy" started in the shape of Suit No. 1347/75 renumbered as 3056/1985 on transfer to the Vlth Senior Civil Judge. The suit was filed by the present respondent namely Jameel Ahmed, against deceased Saifuddin and an advocate namely Muhammad Ahmed, for deceleration and permanent injunction. Important facts as unfolded in the plaint can be summarised as under :- (a) After creation of Pakistan, deceased Saifuddin (stated to be defendant No. 1 in the plaint and to be referred so hereinafter) became the owner of a business already established in Karachi and he executed a General Power of Attorney on 8.10.1970 in favour of the plaintiff/ respondent. (b) The said defendant purported to revoke power of Attorney on 31.1.1974 on board of foreign ship "S.S. Dwarka". The purported revocation was delivered to one Muhammad" Ahmed advocate made as Defendant No. 2 in the suit. (c) Declaration was sought by the plaintiff that purported evocation of the power of Attorney by defendant No. 1 and its delivery to defendant No. 2 was illegal and unlawful and respondent continued to be lawful attorney of Defendant No. 1. (d) Saifuddin, on account of being on Indian National, could not travel to Pakistan to look-after the case property, therefore, he failed to appear in the court to file written statement with the result that an exparte decree was passed against him on 12.5.1976 whereas defendant No. 2 was dropped by the plaintiff. (e) Civil Appeal filed against the exparte decree was also dismissed by IV Additional District Judge on 20.7.1976. Hence Revision Petition No. 202 of 1976 was presented before this court which was allowed on 12.9.1984 and the matter was remanded back to the trial court for proceedings from the stage of evidence of the plaintiff as it was on 24.4.1976 with the following observations :- "One cannot loose sight of the fact that the petitioner/defendant had merely been made exparte but he was still represented by a Counsel and if the evidence of the plaintiff was recorded in the case, the counsel of the petitioner could exercise the right of cross examination and could effectively present the case of the petitioner and brought out facts which could help the court in arriving at a reasonable decision. It is thus clear that by changing the decision of recording of evidence of the plaintiff to the decision of granting the decree merely on the basis of the averments in the plaint the court deprived the petitioner of a valuable right to cross examine the plaintiff which was available to him by the order dated 24.4.76. In these circumstances I am of the view that the dictim of their lord­ ships of the Supreme Court in P.L.D. 1978 S.C. 89 is attracted, where a mere holder power of attorney without disclosing him interest, if any, in clear details, has been granted a declaration without any condition that the power of attorney granted in his favour is irrevocable. Therefore, I set aside the decree of the two lower courts below and send back the case to the trial court for proceeding with the case from the stage of the evidence of the plaintiff as it was on 24.4.1976 after the petitioner had been made exparte. I want to make it quite clear that I have not set aside the decision made by the trial court in making the petitioner exparte on 24.4.1976 because nothing has been brought to my notice which could convince me that the order of exparte was unjustified." This was the end of first round of controversy in the High Court. 3. After remand of the case by the High Court in 1984 the trial court failed to decide it even after expiry of 10 years and Saifuddin, the defendant No. 1, died in 1994, An application under Order 22 Rule 4 CPC was filed by the legal representatives of late Saifuddin for bringing their names on record but the application was dismissed on January 31, 1995 by he learned trial court on the ground that it was not necessary to substitute the LRs of such defendant who had failed to file written statement. Logically of the learned trial Judge in his.own words, appears as under :- "To may mind. L.Rs cannot be allowed to bring on record because defendant No. 1 failed to file the written statement, therefore, they are only at liberty to cross examine the plaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion. For the above reasons I find no merit in the application which his hereby dismissed." Aggrieved by the said conclusion, LRs of deceased Saifuddin presented this Revision on 6.4.1995 which is the second round before this Court. 4. Before, I touch the meritorious averments of the learned advocate, I consider it necessary to point out that on 29.5.1995, when this matter was fixed for Katcha Peshi and Mr. Shamsul Arfin, the learned advocate for the applicant was arguing the matter, Mr. Khalid Habibullah appeared in the court and showed his anxiety on behalf of the respondent to say something. I cannot put a seal of appreciation on the conduct of the learned advocate who intercepted at the stage of atcha Peshi but I overlooked the same on account of scandalous delay of 20 years already taken place in disposal of the case by the trial court and I wanted to dispose of this revision as soon as possible. However, this indulgence further encouraged the learned advocates not only to argue the matter on the point specifically raised in the memorandum of this revision but also on several other points at bar including applicability of several provisions of law such as, Order 1 Rule 10, Order 22 Rule 10, Order 41 Rule 20 of C.P.C. besides several Articles of Limitation Act. Admittedly none of the points were raised before the trial court. In these circumstances, burdening this court with such points which were never raised before the trial court by taking advantage of unlimited patience of this court could be avoided and it would be appreciable that the same he avoided. 5. This reality may not be denied by any sensible person that procedural provisions of law are introduced for advancement of justice and not to stifle the justice by hanging it with the ropes of technicalities because such an attitude may deprive the rightful persons from their rights which is strictly prohibited in our religion. Reference in this regard can be made to a tradition of the Holy Prophet (peace be upon him) quoted in a case reported as Kashmir Corporation v. P.I.A. in PLD 1995 Karachi 301. But these lines do not mean to ignore any provision of Civil Procedure Code. The courts are bound to follow these provisions in their true sense and with their true spirit so that all other relevant provisions remain linked with one another and none of them becomes practically redundant at the time of its application. I have no hesitation to say that if any interpretation of any provision of law on the principles of natural justice keeps the said spirit and sense intact, then, the same must be preferred instead of falling in the clutches of technicalities. On the basis of these propositions, I decided to touch the main points urged by the learned advocates, of the parties in the forthcoming paragraphs. 6. The learned counsel for the respondent supported the impugned order of the trial court on three grounds: one of which was specifically raised by the petitioner in the memorandum of revision while the other two grounds were mentioned in the counter-affidavit filed by the respondent. These grounds can be summarised as under :- (a) Interpretation of Order 22 Rule 4 CPC as discussed by the trial court was in accordance to the spirit of legislation ; (b) Application filed under Order '±2. Rule 4 CPC by the Petitioner before the trial Court was time-barred; and (c) The present revision was not maintainable. So far as the delay in moving an application for impleading the LRs of a deceased party is concerned I am of the view that if any party of a suit fails to bring such an application within time and the said delay can be explained in the light of facts and circumstances of the case and no prejudice is caused to any of the contesting parties if these LRs are brought on record, then the delay can be overlooked. Reliance in this regard can be placed on the case of Walayat Hussain Vs. Dost Muhammad (1994 CLC 544) and Muhammad Asian Vs. The Custodian Evacuee Property (1994 CLC 2030). It was observed in the case of Walayat Hussain (Supra) by a Single Bench of the Lahore High Court as under :- "It was true that application for setting aside of the abatement and substitution of the deceased defendant's legal representatives was filed beyond time but in the facts and circumstances of the case noted above, the delay deserved to be overlooked. Contrary course shall cause grave miscarriage of justice and punishment awarded shall be misplaced. In result of judgments of the lower courts defendants earned a premium and the plaintiff suffered undeserved punishment" Similarly the Hon'ble Supreme Court of A. J. & K obs rved in the case of Muhammad Aslam (supra) that :- "It is a settled proposition that in appropriate cases the application to implead legal representatives filed after limitation can be allowed if the circumstances so justify in this regard." In the present case, it is not known whether any separate application ™" -i. for condonation of delay or any such prayer was made or not in the _^, application moved under order 22 rule 4 CPC but from the impugned order it can be understood that no such point was urged by the respondent when application under Order 22 Rule 4 CPC was argued before the trial Court. This sole reason an be treated sufficient to strike down contention of the learned advocate for the respondent regarding delay, if any, in moving application by the petitioner under Order 22 Rule 4 CPC but I consider it necessary to take into consideration several other facts and circumstances too which are reflected from the record to deal with the point of delay in moving application under Order 22 Rule 4 C.P.C. by the LRs of the deceased defendant. Admittedly the petitioner (L.Rs of the deceased) reside at ^ Bombay in India and their deceased father Saifuddin was also an Indian vX, National. Although he was technically knocked out from filing his written statement before the trial court, yet he continued fighting for his rights with the present respondent till his death during the last twenty years. Position of the LRs is not different from the deceased predecessor because they also cannot travel freely from India to Pakistan. These facts and circumstances convince me not to burn the rights of these L.Rs in the furnace of technicalities merely on the ground of delay of few weeks in moving an application particularly in comparison to the delay of more than twenty years during which the suit could not be disposed of by the trial Court It is on account of such type of scandalous delay that the poor citizens avoid to fight for their rights in the courts and I have no doubt in my mind that such courts are responsible themselves for shattering the confidence of the courts ~ j—• in the eyes of citizens. Besides these important aspects, I enquired Mr. Khalid Habibullah, the learned counsel for the respondent to tell this court as to what prejudice would be caused to the respondent/plaintiff if the legal representatives are brought on record. The learned counsel lukewarmly conceded that no prejudice may be caused to the respondent. On account of these reasons, I do not consider it proper that weapon of technical delay in moving an application be used as hurdle in promotion of principles of natural justice. In these circumstances, the delay in moving an application under Order 22 Rule 4 C.P.C. can be overlooked particularly when no prejudice is caused to the opposites party and the matter can be decided on merits. 7. Another ground also urged at bar was about the maintainability of this Revision. It was stressed by the learned counsel for the respondent that this revision is not maintainable because the matter can be agitated in an appeal. But the learned counsel failed to satisfy the court that only appeal could be filed against an order of dismissal or rejection of an application under Order 22 Rule 4 C.P.C. I have no doubt in my mind that in the circumstances of the case, the petitioners were fully justified to seek their remedy by filing this revision and not an appeal. There may be circumstances where revision may not be maintainable if an application under Order 22 Rule 4 C.P.C. is dismissed or allowed but it is not correct that only appeal can be maintainable in each and every case. For example in case of an ex-parte order against a deceased defendant during his life, a revision would not be maintainable against the finding of a Court if it comes to a conclusion that bringing legal heirs of deceased defendant is not necessary. Reference is this connection can be made to the case of Shamsher Narain Singh vs. Muhammad Safe reported in AIR 1926 Patan 29. But, in a case where there is no ex-parte order and defendant is contesting against the plaintiff with full force then refusal by the court to bring bis L.Rs on record after his death would attract only Revision. Reference in this regard can be made to the case of Rqjappa Vs. Andalamal reported in AIR 1957 Madras 236. Same is in legal position of present revision. The trial Court had passed ex-parte order against the father of present petitioners on the ground of his failure to file written statement but the said order was set aside by this Court as detailed in para 2(e) above. At the time of death of the deceased, there was no exparte order against him and he was contesting the suit with full force. Therefore in the light oiRajappa case (supra) the contention of the learned advocate for the respondent has no force and the revision is maintainable. Besides the above reasoning, this point can be considered from another angle too. Prior to the Law Reforms Ord., 72 abatement of suits was common if a plaintiff failed to move an application for bringing the legal heirs on record within specified time but after the amendments brought in Rule 4 Order 22 CPC through L.R.0.1972, a suit or an appeal does not abate for non-impleading of LRs even if no application is made for the said purpose. It continues to its conclusion as if the plaintiff was still alive. In these circumstances if the legal heirs of a deceased defendant are refused by a court to be brought on record, then the result is obvious i.e. that the court may proceed ex-parte or without being opposed by anyone in favour of the plaintiff by keeping the LRs of the deceased to remain spectators only. Such decision of the Court would amount to crucify justice particularly in the present case because this court had already not approved such an act in the previous revision. In the light of this reason also, the contention of the learned advocate for the respondent does not appear to be convincing. I, therefore, hold that in view of the facts and circumstances as discussed above, this revision is maintainable. 8. The main bone of contention between he controvertists in this revision relates to construction of Order 22 Rule 4 CPC. The portion under discussion of the relevant provisions to be construed i.e. sub-rule (4) Rule 4 of Order 22 CPC, runs as under : "It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contests the suit at the hearing; " (underlining is my own) In my view the opening sentence of the said provisions i.e. "It shall not be necessary" certainly differs in its sense from that "It shall be un-necessary". May this view be accepted or not by any of learned advocates but, undoubtedly, this sentence does not give an impressing of ^'prohibition,". Therefore, in my view if there is any difference of opinion among the parties regarding necessity of bringing LRs on record and if any of the contesting parties, may be the plaintiff/plaintiffs or defendant/defendants", wants to bring LRs on record after the death of any defendant then there is no prohibition. Therefore, the words "It shall not be necessary be not construed in the sense that it is prohibited. 9. Notwithstanding to this interpretation of the words i.e. "It shall not be necessary", contention of the learned adv., for the respondent can be taken into consideration from another angle too. The relevant portion of the said provisions can be read as under : (a) It shall not be necessary to substitute the legal representative of any such defendant who has failed to file a written statement. (b) It shall not or be necessary to substitute the legal representative of any such defendant who had failed to appear and contest the suit at the hearing. From the impugned order it appears that the learned court has treated the word "Or" used in the provision in the sense of "either" or disjunctively. But the question arises: "Here in Italics. What would be the legal position if written statement has not been filed but the defendant is appearing and contesting the suit at the hearing or vice-versa ? and Whether the word "or" gives an impression of "conjunctive­ ness" or otherwise ? I am of the view that the word "or" used in sub-rule (4) of Rule 4 Order 22 CPC gives both impressions in different situations. For example, if death of defendant does not affect the interest of his legal heirs or in case the suit is decreed but the decree cannot be legally executed against the legal heirs then the word "or" would be read as "either". In such case, there may not be any necessity of brining the L.Rs on record if the deceased defendant and either failed to file written statement or had failed to appear and contest the suit at the hearing. But, in case the interest of L.Rs is affected directly or indirectly in the shape of execution of decree if the suit is decreed or in the shape of appeal filed against them, in case the suit is dismissed, or in another shape whatsoever it may be, then it is not proper for a Court to dismiss an application under Order 22 Rule 4 CPC no matter the same is moved by the plaintiff or by the L.Rs of the deceased defendant. In such situation the word "or" has to be construed in the sense of conjunctiveness. In the present case, no doubt the deceased defendant has failed to file his written statement but he was appearing and contesting the suit at the hearing as a right which on denial by the court has been restored by this Court by interpreting this provision in that sense. In the present case if the legal feeirs are not brought on record and suit is decreed in favour of the plaintiff/respondent or dismissed, then these legal heirs may face hardships at the time of execution of decree or in case an appeal is filed against them. In this regard contention of the learned counsel for the plaintiff that these legal heirs can contest the matter at the time of execution of decree or appeal, as the case may, be does not seem to be convincing or in accordance to the actual spirit of justice. Hence the same cannot be embraced by this Court. 10. It may be interesting to point out that the last few lines of the impugned order appear to me not only novel but also symbol of dogmatism. These lines run as under: " ........................... they (mean L.Rs) are only at liberty to cross examine the plaintiff and if they have engaged their counsel, their counsel could only address the court for the proper guidance to the court to reach to right conclusion." Can any court allow any counsel to address the court on behalf of any such person who is not a party in the matter ? Or To whom the plaintiff would make party as respondent in an appeal in case the suit is dismissed & if there was none as defendant after the death of defendant during the pendency of suit ? Whether the dead person ? or The L.Rs who were not brought on record ? I leave these questions without any further observation for consideration of the learned Senior Civil Judge, who dismissed the application under Order 22 Rule 4 CPC by expressing his view that a counsel could address the court for such legal heirs who were refused to be brought^ on record, and for the learned advocate also who supported such an impugned order of the learned trial Court. 11. The learned counsel for the respondent specifically expressed his apprehensions that the L.Rs, if permitted to be brought on record, may re-open different issues by claiming that they have independent rights. To wash-away such baseless apprehension based on presumptions, I consider it necessary to make it clear that the petitioners in this revision (i.e. the LRs. Of the deceased defendant) only step into the shoe of their predecessor to follow his legacy and death of their deceased predecessor does not provide them any premium. Therefore, right of legal heirs after impleading them as legal representatives of deceased defendant is neither lower nor higher or independent of the right of the deceased because death of any defendant cannot be used as rod of right to get any concession, relaxation, penalty or sympathy for any body. However, any effort or will of the respondent/plaintiff to get final order in the suit by keeping the L.Rs. of the deceased defendant out of the suit in any manner whatsoever is not a fair play particularly when no prejudice is caused to him in allowing the application under Order 22 Rule 4 CPC and the legal heirs are wishing to contest the suit with all its consequences. The just and appreciable path leading towards justice requires the parties to play their cards fairly on merits. In this regard the courts can play their role most effectively by crossing all hurdles, if any, to promote the said cause. 12. In view of the aforesaid reasons, this Revision deserves acceptance which is accordingly allowed. Resultantly the impugned order of the learned Senior Civil Judge, Karachi (South) dated 31.1.1995 is set-aside. L.Rs. of the deceased defendant to be brought on record and the matter would proceed now from 'the stage as it was when defendant Saifuddin died. The trial court is also directed to dispose of this "20 years old" matter expeditiously instead of keeping it as "antique". It would be appreciable if the suit be not adjourned in future for more than 7 days after every hearing unless there are unavoidable circumstances if it cannot proceed from day to day. No order as to costs in the circumstances of the case. (MYFK) Revision accepted.

PLJ 1996 Karachi 363 PLJ 1996 Karachi 363 Present: DEEDAR HUSSAIN SHAH, J. M/s M.A. KHAN and Co.--Plaintiff versus M/s PAKISTAN RAILWAY EMPLOYEES, CO-OPERATIVE HOUSING SOCIETY LTD., KARACHI-Respondent Suit No. 84 of 1994 and J.M. No. 10 of 1995 decided on date not mentioned Co-operative Societies Act- —Ss. 54, 70 and 70-A, Limitation Act,, 1908, Art. 158, Arbitration Act, Ss. 14 and 33~Plaintiffs, "A" class contractors-Highest bidders to construct commercial units-No work order issued-Appointment of sole Arbitrator- -Filing of Award-Objection to~Defendants remained absent before arbitrator and even after receipt of notice through bailiff as well as through registered post A/D did not file any objection in time in Court- They were not punctual and prompt to pursue their case at proper time and place-Objection filed by defendants hopelessly time barred and not fit to be considered-There is no mistake in award-Held: Award has been filed after observing necessary and legal formalities and hearing laintiff and perusing relevant documents at issue, hence made rule of law. J.M. dismissed [P. 374] A 1987 CLC 83 ref. Mr. K.M.A. Samdani and Mr. A.F.M. Mokarim, Advocates for plaintiff. Mr. Arshad Iqbal, Advocate for Defendant. order I intend to dispose of Suit No. 84/94 and J.M. No. 10/95 by this common order as common questions of facts and law are involved and the parties in these matters are one and the same. 2. Brief facts of the case are that the plaintiffs are "A" class No Limit Contractors, who are enlisted with the defendant's agencies, departments etc. and prequalified with the defendants for their works and have carried out works of millions of rupees of the defendants or otherwise. The plaintiffs, as such participated in the undernoted tenders floated by the defendants for their works as under:- "(i) Work of "Providing and Laying Sewerage disposal at Project No. 2 Gulshan-e-Jamal, Karachi estimated to cost Rs. 8,41,722/00 (on 12.2.1987)." "(ii) Work of Providing and Laying Sewerage Disposal at Project No. 2-A, University Town Karachi estimated to cost Rs. 37,22,940/- (on 14.4.1988)." "(iii) Construction of culverts at Project No. 2-A1 at Depot Hill Station, Karachi estimated to cost Rs. 73,89,475/00 (on 4.4.1991)." "(iv) Providing and laying sewerage line at Project 2-A1, estimated to cost Rs. 63,200/00 (in September 1989). 3. The plaintiffs emerged as the lowest tenders in respect of the works at (i) to (iii) above. Regarding the work at (iv) above, it is stated by the plaintiffs that they were the second lowest tenderer and M/s. Mobarak Naseem, contractor were the first lowest but the plaintiffs after opening of said tender against NIT dated 75.9.1989 offered through their letter dated 20.9.1989 that they were prepared to execute this work at their quoted rates for the other work on 14.4.1988, which will save the defendants from at least two million rupees. Whereupon the defendants did not accept the tender of the said other contractors and promised to award this work to the plaintiff. The plaintiffs preferred another claim regarding the tender in the year 1984 for the Disposal of (20) number undeveloped commercial plots of 200 square yards each, at chanesar halt, Karachi in project No. 8 for disposal in the open market. It is stated by the plaintiffs that they participated in the tender after deposit of earnest money and emerged as the highest bidders for the same at their quoted rate of Rs. 30,000/00 for each plot. According to the plaintiff they were to be issued allotment of the said plots by PRECHS/defendants against the payment/deposits of price of plots less the amount of the Earnest Money of tender paid by the plaintiff, whereupon they were to construct commercial units on the said plots and dispose of the same to the buyers in the open market and such buyers were to be issued lease by the defendant/society, so as to enable such buyers to get their respective plots/construction thereon mutated in the appropriate record of rights. It is stated by the plaintiffs that, time to time, the defendant's secretary assured/promised that work order will be issued but in vain. 4. The parties had certain disputes referable to arbitration, consequently the plaintiffs appointed Mr. A. Qutubuddin Khan, Advocate as their Arbitrator and called upon the defendants to appoint their Arbitrator vide their letter dated 20.6.1993 (Exhibit APN-1). On failure of the defendant in appointing their arbitrator as per law, the plaintiff appointed Mr. A. Qutubuddin Khan as Sole Arbitrator in the matter of the said dispute under intimation to defendants and requested the arbitrator to adjudicate upon their claims/disputes between the parties. 5. Mr. A. Qutubuddin Khan, the Sole Arbitrator, filed his award in the office on 3.2.1994. Thereafter notices to the parties on the Form 12-C to the Sindh Chief Court Rules were issued. 6. I have heard Mr. K.M.A. Samdani, learned counsel for the plaintiffs, who has contended; (i) that after receipt of the award, filed by the Sole Arbitrator, notice of the award was issued by this Court first through bailiff and second by registered post A/D and both were served on the defendants on 24.2.1994 and 10.3.1994 whereas objections were filed under Arbitration Act on 7.5.1994 ; (ii) that period prescribed for filing objection under Article 158 of the Limitation Act is 30 days; (iii) that J.M. No. 10 is filed without seeking permission of the Court; (iv) that the application is also barred by time and the defendants cannot raise this issue at present (v) that the plaintiffs are not members of the Society, therefore, sections 54, 70 and 70-A of the Co-operative Societies Act are not applicable. 7. Statement of the Bailiff Hassan Shah, who served the notice on the defendants reads as under; - The notice was received by one clerk of M/s. Pakistan Railway Employees Cooperative Housing Society Ltd., copy of the notice bears stamp of the defendants. Notice issued through registered post A/D bearing No. 17870 dated 23.2.1994, Saddar GOP, Karachi, was also served on the defendants. 8. Mr. K.M.A. Samdani has cited the following authorities: - (1) (1984 SCMR 597) case of Ashfaq All Qureshi versus Municipal Corporation (2) (PLD 1994 K. 127) case of M/s. Shaft Corporation Ltd. versus Government of Pakistan (3) (PLD 1979 K. 45) case ofHaji Amir Bux versus Sono Khan (4) (1991 CLC 258 K.) case ofAkhtar Trading Co. versus Food Department and others (5) (1987 CLC 83 K.) case of Ralli Brothers and Coney Ltd. versus Muhammad Amin Muhammad Bashir Ltd. "S. 2(c)-Reference to arbitration-Requirement~For referring matter to arbitration, signature of parties on agreement not necessary-Such agreement however, was required to be in writing-Even if such agreement was not signed, parties would be bound thereby, and matter could be validly referred to arbitration." (6) (PLD 1977 K. 37) case ofParacha Textile Mills Ltd. versus Manikram Shamandas "S. 30--Notice sent by arbitrators to defendant by Registered post A.D. returned undelivered with endorsement of Postal Authorities as "refused"~No evidence adduced to displace presumptioa under law that notice was received or offered or delivered by Postal Authorities to defendant-defendant, held, duly served with notice of proceedings by arbitrators in circumstances of case and he cannot plead that award was vitiated for want of notice to him of particulars of claim by other party." (7) (1981 CLC 1667 K.) case of M/s. Gul Ahmad Textile Mills Ltd., Karachi versus M/s. Starko Ltd., Karachi (8) (PLD 1981 K. 28) case of M/s. Sheikh Hussain Bux & Co versus M/s. Zaib Tun Textile Mills Ltd. (9) (AIR 1955 Rajasthan 153) case of Ismail versus Hansraj t^and another (10) AIR 1954 Bombay 293) case of A.R. Savkur versus Amritlal Kalidas and others (11) (PLD 1960 (W.B.) Lahore 601) (12) (AIR 1930 Allahabad 711) (13) (PLD 1971 Karachi 899) (14) (1980 CLC 1977 K.) (15) (1984 CLC 691 Lahore) (16) (PLD 1984 Peshawar 285) (17) (NLR 1991 Civil 352) (18) (PLD 1955 Lahore 557) (19) (PLD 1990 K. 216) (20) (PLD 1977 S.C. 644) (21) (1988 SCMR 723) (22) (AIR 1928 Lahore 938) (23) (AIR 1927 Allahabad 407) (24) (AIR 1968 Allahabad 202) (25) (AIR 1964 Madras 52) (26) (PLD 1971 SC 784) (27) (AIR 1931 Allahabad 136) (28) (AIR (36) 1949 East Punjab, 199) (29) (AIR 1958 Calcutta 620) 10. Mr. Arshad Iqbal, learned counsel for the defendants has contended that; (i) question of limitation is to be counted from the date of knowledge; (ii) that the defendants came to know on 9.4.1994 through postal service; (iii) that no copy of the award was attached with the process; (iv) that certified copy of the award was given to the defendants on 5.9.1994 and objections to the award were filed on 7.5.1994 ; (iv) that no any notice, as contemplated under section 14 of the Arbitration Act for filing and signing of the award, was served on the- defendants; (vi) that the reference made to the Arbitrator is challenged; (vii) that there is no any arbitration agreement between the parities; (viii) that respondent M.A. Khan has filed CP No. D- 402/94; (ix) that as there is no arbitration agreement, reference to the Arbitrator, should not have been made; (x) that in the absence of arbitration clause in any agreement this Court has no jurisdiction to make the award rule of the Court (xi) that this aspect is to be looked into by the Court, even if the application under section 33 of the Arbitration Act 1904 is not made; (xii) that the respondent has not signed any agreement for referring the matter for arbitration; (xiii) that the plaintiff has approached the Federal Ombudsman, who referred the matter to Deputy Registrar, Cooperative Housing Societies for amicable settlement of the dispute; (xiv) that Annexure "C" page 27 is application of M.A. Khan (the plaintiff); (xv) that there was no settlement before the Deputy Registrar, Cooperative Housing Societies; (xvi) that there is bar under section 70A of the Cooperative ocieties Act and (xvii) that the applicant should have moved this Court after exhausting all the remedies available to him. 11. Mr. Arshad Iqbal has cited the following authorities:- (1) (PLD 1970 SC 43) case of M/s. Badri Narayan Agarwala versus M/s. Pak Jute Balers Ltd. The Honourable Supreme Court has observed as under "Leave to appeal was granted in this case to consider three points. The first two points, namely, that the arbitrators had entered upon reference on the date the Registrar was alleged to have issued the notice to the appellant calling upon him to file his statement to the claim of the respondent and alternatively that if the same notice was not by the arbitrators the award was void as the appellant was not served with any notice by the arbitrators." This authority of the Honourable Supreme Court is quite distinguishable and different from the facts of the case in hand. As stated earlier after filing of the award the Additional Registrar (O.S.) issued notice to the defendants through bailiff as well as through registered post A/D for filing objection, if any. Both the notices were served on the defendants and the second observation of the Honourable Supreme Court was that the appellant was not served with any notice by the Arbitrators whereas in this case as per record the defendants were issued notices by the learned Arbitrator not only for once but the defendants were issued three notices through registered post A/D on the address of the defendants, postal receipt along with its A/D receipt has been filed with the R & P of the award. Three registered post A/D letters were issued by the learned Arbitrator but even then they had not participated in the arbitration proceedings. By now it is settled law that a letter which is properly addressed, must be deemed to be received by the addressee unless it is proved to be contrary. There can. be no better appreciation in this and I would like to reproduce the observations made by Zaffar Hussain Mirza, J of this Court reported in (PLD 1977 Karachi page 37) relevant portion is as under:- "The documents annexed to the award show that a notice dated 6.2.1973 was addressed to both parties whereby arbitrators had called upon them to appear before them on 16.2.1973 at 3.30 p.m. at the office of Roberts Cotton Associates Limited, Second Floor, Cotton Exchange Building, Karachi, for the purpose of hearing the case. This notice was addressed to the defendant by registered post A/D at his office address at 4th Floor, Al-Yousuf Chambers, Frere Road, Karachi. The envelope shows an endorsement by the postal authorities as "Refused". The defendant in his written objection has pleaded that no notice from the arbitrators of the claim made by the plaintiff was delivered or offered to or refused by him. On the other hand the plaintiffs contention in his reply filed in this Court is that notice of the proceedings was duly sent to defendant at his proper address by registered post but the same was returned marked as "Refused". In the circumstances, the question is whether the notice issued by the arbitrators has been duly served or not. In Bashir Ahmed vs. Mumtaz Khan (1) S.A. Mahmood, J. (as he then was), while considering a similar'' question with regard to the service of notice by post under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, by a transferee to the tenant, after elaborately reviewing the case law on the subject came to the conclusion that by the combined effect of section 114 of the Evidence Act and section 27 of the General Clauses Act, a letter which is properly addressed must be deemed to be proved to have been received by the addressee unless proved to the contrary. In that case besides the mere denial of the addressee, no other evidence was produced and as a result it was held the service of the notice had been proved to be effected. In the present case also except fpr the mere denial of the defendant, no other evidence has been adduced to displace the presumption under the law that the letter was received, offered or delivered by the postal authorities to the defendant. In view of this discussion, I have come to the conclusion that the defendant was duly served with notice of the proceedings by the arbitrators. In spite of notice being, refused by the defendant, can he plead that the award has been vitiated for want of notice to him of the particulars of the claim by the other party. There is no warrant of such an argument that in all eventualities, even if the party refuses to accept notice issued by the arbitrators for procuring his presence before them, the arbitrators would be bound in law to communicate to him the daim. Even in a Court of Law if a defendant is duly served and defaults in appearing in Court, the Court is not required to wait for him, may proceed to hear the suit exparte. The rule of natural justice cannot be stretched so as to make it incumbent for a domestic tribunal to do more than to give notice of the proceedings to the party. If the defendant had appeared before the arbitrators, they would have called upon the plaintiff to state his case and give opportunity to defendant to reply to the daim. For his inability to know the case of the plaintiff, therefore, the defendant must balm himself for his refusal to accept notice despatched to him in ordinary course. To hold otherwise would add an unnecessary burden upon the arbitrators to give two notices, one for the presence of the parties and the other for informing them the respective daims of the opposite parties. In fact the arbitrators are supposed to enter upon the reference as soon as they call upon the parties to submit their case before them. There is thus no warrant in law for holding that even after such notice the arbitrators would be required to wait for the party to appear at his choice on a subsequent date of hearing when he would be informed about the claimor to send separate notice of the claim to the party concerned. By his first default in appearing before the arbitrators, to my mind, the defendant had disentitled himself to the right to be informed about the claim of the plaintiff." (2) (PLD 1982 Karachi 774) case of M/s. Nizari Co-operative Housing Society Ltd. versus Qamruddin M. Khirnani and 4 others "Ss. 11, 20 & 33 read with Sindh Co-operative Societies Act (VII of 1925), 70-A-Jurisdiction-Provisions of Sind Cooperative Societies Act, 1925 regulating arbitrations, held, not inconsistent with Ss. 11, 20 and 33 of Arbitration Act, 1940 but bar imposed by S. 70-A of Act, 1925 ousts jurisdiction of civil Courts and as such Courts cannot entertain any proceedings which in any manner relate to or challenge any award, order or proceedings before Provincial Government Registrar, his nominee or Arbitrator." This authority of the learned Judge of this Court is also quite different and distinguishable from the facts of this case and is not applicable and favourable to the case of the defendants, inasmuch as, the plaintiff is not and has not been a member of the Pakistan Railway Employees Cooperative Housing Society. Furthermore the dispute in between the parties is not touching the business of Pakistan Railway Employees Cooperative Housing Society but here is a dispute between a Contractor and Pakistan Railway Employees Cooperative Housing Society for construction work. 12. I would like to reproduce actual wording of sections 54, 70 and 70-A of the Cooperative Societies Act, which is as under:- "54. Arbitration:- If any dispute touching the business of a society other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises:- (a) between members or past members of the society or persons claiming through a member or past member, or (b) between members or past members or persons so claiming and any pastor present officer, agent or servant of the society, or (c) between the society or it" committee, and past or present member of the socie , or (d) between the society or its committee and any past or present officer, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or (e) between a financing bank authorised under sub­ section (1) of Section 34 and a person who is not a member of a society. It shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shaU be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned." "70. Notice necessary in suits: No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." "70-A Bar of jurisdiction: (1) Notwithstanding anything provided in any other law for the time being in force, but save as expressly provided in this Act-- (a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a co-operative bank or any other person is empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine; (b) the validity of anything done or an order passed by the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred to in clause (a) under this Act or the rules and bye-laws framed thereunder,' shall not be called in question in any manner whatever before or by any court or other authority whatsoever, and (c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a society, a financing bank, a co-operative bank, the Registrar or any other person referred in clause (a)." 13. The perusal of the above sections clearly show that there is no dispute touching the business of the society. Therefore, the provisions of the above sections of the Cooperative Societies Act are not attracted. 14. The contention of Mr. Arshad Iqbal that the respondent has not signed any agreement for referring the matter for arbitration, is not correct. 15. I would like to reproduce clause 45 of Tender Documents which is as under: - "All disputes or differences in respect of which the decision (if any) of the Architect has not become final and binding as aforesaid shall be finally settled under the provisions of the Pakistan Arbitration Act of 1940 and the rules made thereunder as amended from time to time by two arbitrators one to be nominated by the Owner and the other by the Contractor and in the case of the arbitration not agreeing to the award of an impire to be appointed by the arbitrators in writing before proceeding with the reference to the arbitration and the decision of the arbitrators or in the event of their disagreement of the umpire will be final and conclusive. The venue of the arbitration proceedings shall be in Karachi. The said arbitrators or umpire as the case may be shall have full power to open up review and revise any decision opinion direction certificate or valuation of the Architect and neither party shall be limited in the proceedings before such arbitrators or umpire to the evidence or arguments put before the Architect for the purpose of obtaining his said decision. No decision given by the Architect in accordance with the foregoing provisions shall disqualify him as being called as a witness and giving evidence before the arbitrators or umpire on any matter whatsoever relevant to the dispute or difference referred to the arbitrators as aforesaid. The arbitrators shall not enter on the reference until after the completion or alleged completion of the works unless with the written consent of the owner and the contractor provided always." 16. I would like to reproduce the relevant observations of Saleem Akhter, J. reported in 1987 CLC 83, which is as^mder:- "The next contention of the learned counsel for the defendants is that there is no agreement of arbitration between the parties, therefore, neither the dispute could be referred to arbitration, nor arbitrators could have been appointed and proceeded with the matter. It is an admitted position that the contract between the parties concluded by exchange of cables and that the plaintiffs are members of Liverpool Cotton Association, whereas the defendants are its associate members. It seems that the plaintiffs had sent contract notes for the signatures of the defendants but they refused to sign it. However, on the basis of the contract concluded on exchange of cable part of the goods were supplied by the defendants in Suits Nos. 320 of 1975 and 321 of 1975 and payments were made by the plaintiffs. In this background it has to be considered,whether there was agreement between the parties for referring the matter to arbitration. It is true that there is no written agreement signed by the parties for referring the matter to arbitration but it is not necessary that an agreement for arbitration should be signed by the parties. It is sufficient if the agreement is in writing. Even if it is not signed, the parties will be bound by it and the matter can validly be referred to arbitration. In this regard Mr. Muhammad Ali Syed the learned counsel for the plaintiffs has referred to M/s. Hafiz Abdul Aziz Cotton Ginning Factory vs. M/s. Haji Ali Muhammad Abdullah PLD 1966 Kar. 197, M/s. Jamal Jute Baling Co., Dacca vs. M. Sari & Sons, Dacca PLD 1971 SC 784, Mst. Shamim Akhtar vs. Najama Begum and others PLD 1977 SC 644, Paracha Textile Mills Ltd., Karachi v. Nanak Ram Shamandas PLD 1977 Kar. 37, M/s. Hussain Bux & Co. vs. Zebtan Textile Mills Ltd. PLD 1981 Kar. 28, Gul Ahmed Textile Mills Ltd. vs. Starco 1981 CLC 1667, Shankar Lai Lachmidas vs. Jamy Brothers AIR 1931 All. 136, Jagga vs. E.G. Hurmuzji AIR 1955 SC 812, Ramchandar Ram Nag vs. Hussain Oil Mills and another AIR 1958 Cal. 620 and Banarsi Das v. Cane Commissioner U.P. and another AIR 1963 SC 1417. In all these authorities it has been held that the arbitration agreement should be in writing and shall be enforceable if agreed to even without the signature of any party. To constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties. It is sufficient if the terms of the agreement are reduced in writing and consensus of the parties is established." 17. The contention of Mr. Arshad Iqbal is that the petitioner has filed CPC No. D-402/94 and that the matter was referred to the Deputy Registrar, Cooperative Housing Societies, as such the award is void and may not be made rule of the Court, the Deputy Registrar Cooperative Housing Societies who was respondent No. 4 in the CP No. D-402/94, has stated in his comments as under: - "It is fact that the petitioner and Secretary of the Society alongwith Ex-Committee members and technical advisors had a detailed discussion in my office. It is an old issue so far I re-collect. There was a difference of Rs. 5 lacs between the Society's offer and the Contractor's demand in addition to above, the Contractor demanded that he should be paid some tangible among to start with the work to which the Committee refused. Regrading the question of Arbitration it is submitted that the petitioner being a non-member could not seek the remedy under the provisions of section 54 of the Cooperative Societies Act 1925. Neither he filed any arbitration case nor any decision was pending with this office." From the comments it reveals that neither any arbitration case nor any decision was pending in the office of the Deputy Registrar of the Cooperative Housing Societies. 18. Keeping in view the tender document vide clause 45 mentioned earlier it is established that the matter has rightly been referred for the arbitration between the parties. As the defendant has failed to nominate their own Arbitrator Mr. A. Qutbuddin Khan the learned Arbitrator acted as sole arbitrator and issued 3 notice on different dates to the defendants. The notices were issued through registered post A/D at the addressee of the defendants through their secretary but even after service of the notices the defendant did not participate before the arbitrator and there was no other way out left to the arbitrator, as such the learned arbitrator after hearing the plaintiff and perusing the necessary documents/papers announced the award. The award was filed in this Court and necessary process was issued as discussed earlier but even then the defendant failed to file any objection in time. 19. The case law cited by Mr. K.M.A. Samdani is very, much relevant, applicable and helpful to the case of the plaintiff. The defendants have deliberately remained absent before the arbitrator and even after receipt of the notice through bailiff as well as through registered post A/D did not file any objection to the award in time in the Court. Their plea that they were not served with the notice, is not borne out from the record. From initial stage it appears that the defendants were not punctual and prompt to pursue their case at the proper time and place. The objection filed by the learned counsel for the defendants are hopelessly time barred and are not even fit to be considered. The contention of the learned counsel that the defendants came to know on 9.4.1994 through postal service is not borne by the record. Therefore, their plea that they came to know on 9.4.1994 is not believable and their contention that the limitation is to be counted from the date of the knowledge, is also not tenable. In view of the overwhelming documentary evidence which is annexed with the R. & P. of the case and the record of the learned Arbitrator, there is no any mistake in the award itself which has been awarded after observing necessary and legal formalities and hearing the plaintiff and perusing and verifying the relevant documents at ssue. For the foregoing reasons the award is made rule of the Court and as such J.M. 10/95 stands dismissed with no order as to costs. (MYFK) J.M. dismissed.

PLJ 1996 Karachi 375 PLJ 1996 Karachi 375 [Extra Ordinary Jurisdiction] Present: SHAFI MUHAMMADI, J. MUHAMMAD ZAFFAR KHAN-Petitioner versus Mst. SHAHNAZ BIBI etc.—Respondents C.P. No. S. 66/95 dismissed on 21.6.1995. (i) Family Courts Act, 1964-- —S. 14-Dissolution of marriage—Suit for-Interlocutory Order of trial Court-Appeal to~Whether interlocutory order amounts to decision and whether appeal against such order is maintainable-Question of-Every order passed by a family Court during pendency of a suit cannot be treated interlocutory, unless nature of such order reflects so-If nature of an order appears to be final, then it may not be treated interlocutory and appeal against such order is maintainable-But interlocutory order, do not amount to a "decision" and against such order appeal under section 14 of Family Courts Act is not maintainable. [Pp. 378, 380 & 381] A, B, C PLJ 1982 Lahore 475 ref. (ii) Family Courts Act, 1964- —S. 4-Qualification of Judge-No person shall be appointed as a Judge Family Court unless he is or has been a District Judge and Additional District Judge, a Civil Judge or a Qazi-Therefore, cases of family matters be dealt by senior and more experienced Judges. [Pp. 386 & 387] G (iii) Interlocutory Order- —An Interlocutory order or judgment is one made or given during progress of an action, but which does not finally dispose of rights of parties-­ IP. 382] D (iv) Suit for Dissolution of Marriage- —Suit for Dissolution of marriage-Objection of Territorial jurisdiction-­ Dismissal of—Challenge to—A wife has four options to institute her suit for dissolution of marriage in any such court within local limits of which; —(a) Cause of action wholly or partially arose; —(b) She resides or her husband resides; —(c) She last resided with her husband; or —(d) She ordinarily resides. -—Thus, address given in Nikahnama of parties or address given in title of suit is immaterial for purpose of instituting a suit for dissolution marriage-Held: Order passed by Judge Family Court that petitioner wants to delay matter, is just and appropriate-Petition dismissed. [Pp. 384, 385, 386] E & F Mr. Taza Gul Khatak, Advocate for Petitioner. Date of hearing: 21.6.1995. judgment By invoking the Constitutional Jurisdiction of this Court, Petitioner Muhammad Zafar has assailed the orders dated 21.5.1995 and 30.4.1995 passed by VI Additional District Judge Karachi and IX Civil and Family Judge (South) Karachi respectively. The impugned order of the appellate court (VI A.D.J.) passed in Family Appeal No. 13/1995 runs as under:- "Heard. The impugned order does not fall within the pei-view of section 14 of Family Courts Act, 1961 as such this appeal is not maintainable therefore the appeal is dismissed in limine." 2. The background leading to filing of the Petition is that respondent Mst. Shahnaz Bibi has filed Suit No. 85/1994 for Dissolution of 4 Marriage against the Petitioner. Written Statement submitted by the Petitioner consists of two preliminary legal objections, which are general in their nature and read as under:- (i) The suit as framed is not maintainable under the law and is hit by various provisions of Family Courts Act/Ord., amendments made therein and thereafter; and (ii) There exists no cause of action. On 23.10.1994 Mst. Shahnaz Bibi was examined by the Court but after her examination-in-chief the learned counsel for the Petitioner after asking only four questions about the address of the respondent, moved an application for adjournment. The matter was, therefore, adjourned to 31.10.94 for further cross-examination. On 31.10.1994 when the matter was taken up for the remaining cross-examination, the learned counsel for the Petitioner moved an application instead of cross-examining the Respondent with a prayer to dismiss the family suit or return the plaint to the plaintiff/respondent to file it in the Court of proper territorial jurisdiction. After hearing the parties, the learned Kth Civil & Family Judge (South) at Karachi dismissed the said application vide order dated 30.4.1995 with observations that the present Petitioner had moved application with malafide intention to delay the matter. Family Appeal No. 13/1995 filed by the Petitioner against the said order, as mentioned above, was dismissed in limine as stated in para 1 above. Hence the present petition. 3. Contentions of the learned counsel require interpretation of the words "a decision given" used in Section 14 of the Family Courts Act, 1964 (hereinafter referred to as "the Act") which reads as under:- "14. Appeal.--(l) Notwithstanding anything provided in any other law for the time being in force, a decision given or decree passed by a Family Court shall be appealable: (a) to the High Court, where the Family Court is presided over by a District Judge, an Additional District Judge or any person notified by Government to be of the rank and status of a District Judge or an Additional Judge; and (b) to the-District Judge in any other case. (2) No appeal shall lie from a decree by a Family Court: - (a) .................................................................................. (b) ................................................................... , ........... (0 .................................................................................. 4. Averments advanced by the learned Advocate rest upon the claim that incorporation of the words "a decision given" refer to or include in those orders, other than decree, including interim, orders passed by a Family Court on any application moved during the pendency of any case. Hence it was urged that appeal against the order of the Family Court on the point of jurisidction was maintainable and the appeal against that order could not be dismissed on the point of maintainability. The contention of the learned counsel is supported by a decision reported as H. Munawar Ali versus Mst. Sarwar Bano (NLR 1989 Criminal 649) authored by Sardar Muhammad Dogar, J. of Lahore High Court who observed that: "It is clear from the wording of sub-section (1) of Section 14 of Family Courts Act that the procedure laid therein for having recourse to the appellate Courts not only pertains to the "decrees passed" by the Family Court but the "decisions given also". The incorporation of the words "a decision given" for having recourse to appellate Court, obviously, rather clearly, refers to other orders than a decree. These decisions will include the interim orders passed during the proceedings or the orders passed on any application arising out of the proceedings. The comprehensive language of the section leaves no room to doubt that no party aggrieved by any order can have a recourse to appellate Court other than the one provided in the Section. It is not only, commonly known, but well established too, that where a special provision has been made against the order passed by a Court or "authority", the parties cannot have recourse to any forum other than that." (Underlining is my own). On the other hand, there is a series of judgments wherein it was held that interlocutory orders do not amount to a "decision" and against such an order appeal under Section 14 of the Family Courts Act is not maintainable. Reference in this regard can be made to a case reported as Adnan Fazal versus Col. (Retd.) Sher Afzal Khan and two others (PLJ 1982 Lahore 475) authorised by rChalilur Rahman Khan, J. of the Lahore High Court whp after taking into consideration the cases repotted in PLD 1981 S.C. 522, PLD 1981 Lahore 761, PLD 1981 Quetta 15, and PLD 1982 Lahore 401, observed: "In all these cases, the principle laid down is that High Court while interfering with orders or judgments of final tribunals or Courts has only to see whether tribunal or Court acted without jurisdiction or in violation of relevant statute on law as laid down by the superior courts, and that a Court or tribunal set up under ordinary law having jurisdiction to decide a particular matter has jurisdiction to decide it rightly or wrongly. The aforenoted dictum laid down by the learned Judges of the Supreme Court was followed in the other cases mentioned above. Following respectfully the above dictum of the Supreme Court I propose to examine the question whether the learned Judge Family Court could legally assumed jurisdiction on the basis of the three applications submitted by the respondent and whether the impugned order was passed with lawful authority. Taking firstly, the order passed by the learned Judge in appeal, it will be noted that the appeal was held to be not maintainable on basis of the view taken in S. Azharul Hassan Naqvi vs. Mst. Hamida Bibi (PLJ 1979 Lahore 504). Undoubtedly, interlocutory orders do not amount to a "decision" and against such an order appeal under section 14 of the Family Courts Act was not available. The appeal was, therefore, rightly dismissed as not maintainable. It will, therefore, follow that there being no remedy available under law against the order passed by the Judge Family Court, the Constitutional Petition will be maintainable provided it could be established that the impugned order was otherwise without jurisdiction and illegal." (Underlining is my own). 5. Before embracing any of the two views, as expressed by two Hon'ble Judges of the Lahore High Court, I consider it necessary to point Here in Italics. out that Islamic Laws, in their nature, on family disputes especially of divorce appearing in the Holy Quran and Ahadith of the Holy Prophet Muhammad (Peace be upon him) are very simple, transparent and most effective for summarily disposal of matrimonial disputes. The reamble of the Act also embodies this spirit in the following words: "Whereas it is expedient to make provision for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs for matters connected therewith." Another important feature of the Act is that Evidence Act and Code of Civil Procedure 1908, except sections 10 and 11, shall not apply to proceedings before Family Court as is evident from Section 17 of the Act which runs as under:- "17. Provision of Evidence Act and Code of Civil Procedure not to apply.--(l) Save as otherwise expressly provided by or under this Act, the provisions of the Evidence Act, 1872 and the Code of Civil Procedure 1908, except sections 10 and 11, shall not apply to proceedings before any Family Court." If section 17 of the Act is read with Preamble of the Act, then purpose of this provision of law seems nothing but to keep the proceedings before the Family Court saved from procedural technicalities of the Evidence Act (Qanun-e-Shahadat) and the Code of Civil Procedure. Note: Although the Zia' Martial Law Regime replaced the Evidence Act by "Qanun-e-Shahadat", by claiming that Islamic Law of evidence has been introduced by repealing un-Islamic Law of Evidence yet everyone knows that subjectively there is no difference between the repealed Evidence Act and promulgated Qanun-e-Shahadat. So far as Section 17 of this Act is concerned even the words "Evidence Act" was not replaced by Qanun-e-Shahadat. To avoid any comph'cation the word "Evidence Act be read as "Qanun-e- Shahadat." From this specific provision of law also it can be easily gathered that a family court is not a court under the Supervisory Jurisdiction of the High Court under section 115, C.P.C. Deep analysis of this situation brings into light two important legal aspects which can be reflected as under: (i) When Code of Civil Procedure and the Evidence Act (now the Qanune-e-Shahadat) are not applicable to Family cases before the Family Courts and/or the High Court has not supervisory jurisdiction over the family court and section 14 of the Act provides appeal only against such orders which fall within the definition of words "a decision given" or decree passed, then the aggrieved parties are left with no other alternative but to invoke the constitutional jurisdiction of the Court to seek their remedy not available under any other law against all other orders passed by the Family Courts provided the impugned orders appear to have been passed without jurisdiction and are illegal. (ii) The Family Courts are required to reduce the duration of litigations by adopting all principles of the natural justice instead of sticking strictly to the procedural technicalities of Evidence Act (Qanun-e-Shahadat) or the Code of Civil Procedure which are usually used in civil suits to cause scandalous delay in disposal of cases with the consequences that juice of beauty possessed by youngness full of dreams and sentiments is fully sucked by poisonous stings of passing time, particularly of females, and their lives start fading like withering flowers. 6. Keeping these general realities in view as well as the delay caused besides certain sorrowful aspects of the case such as examination-in-chief of respondent which was completed on 23.10.1994, but the cross-examination is being kept pending by the trial court and the petitioner's advocate till date apparently with no stay order from any higher forum, I decided to deal with this case in detail to some extent to provide certain guide-lines for the disposal of such cases as well as to bring on record my displeasure regarding the delay in disposal of this case. If there was no stay Order before the Judge Family Court from any higher forum, then the act of stopping or discontinuing the proceedings was unwarranted and most un-appreciable. 7. After hearing the learned counsel I realized that one of the main questions relates to the applications moved in Family Suits during their pendency and the orders passed thereon by the court. Whether the orders passed by the Family Court on each and every applications can be treated interlocutory? . Second question relates to the conflicting view appearing in different judgments regarding interpretation of the words "a decision given" as used in Section 14 of the Family Courts Act, 1864; and The third question relates to invoking of the Constitutional Jurisdiction of the High Court against the orders passed by Family Courts. 8. Regarding the first question, I am of the opinion that every order passed by a Family Court during the pendency of a suit cannot be treated interlocutory, unless the nature of such order reflects so. To test whether an order passed on any application by a Family Court be treated interlocutory or not the appellate court must find-out what possible orders could be passed by the Judge Family Court on such applications. If the nature of an order appears to be final then it may not be reated interlocutory. For example, if any of the contesting parties moves an application praying therein that the Court has no territorial jurisdiction to proceed with the case, therefore, the family suit be dismissed or the plaint be returned to the plaintiff for filing the same in the court of competent jurisdiction then the Judge Family Court, after receiving such application has these options i.e., (i) to allow the application, (ii) to dismiss the application or (iii) to defer the application for the time being by passing any order other than allowance or dismissal. (a) In case the Judge Family Court allows the applications, the family suit would be dismissed if the plaintiff is considered by the court not to be returned on the ground that C.P.C. is not applicable to family cases therefore, Order VII Rule 10 C.P.C. cannot be invoked to return the plaint. It is thus evident that this type of order is final in its nature. In this option order passed on the application moved by any of the contesting parties cannot be treated "interlocutory." (b) If the family court dismisses the application, as was done in the petitioner's case, even then it is evident that the family court has finally decided the question of jurisdiction which cannot be raised again during subsequent proceedings before that court except in appeal. If any point comes appealable after the disposal of any suit then it is strange that the said point if finally decided during the pendency of the suit, be treated interlocutory. Therefore, I am of the opinion that order of dismissal in these circumstances also possesses the characteristics of finality in its nature. (c) If the court neither allowes nor dismisses the application on the point of jurisdiction for the time being and orders only to frame an issue on that point to be decided at the initial stage as preliminary issue or at the time of final disposal as one of the issues of the suit, then such an order may be treated interlocutory because the issue raised in the application has not been finally decided. According to my point of view keeping the issue of jurisdiction pending till the final disposal of the case is against the principles of natural justice. Courts are required to decide such an issue in its initial stage as and when the same is raised provided it has force in it. For example, if an application in a civil suit is moved under Order VII Rule 11 CPC, it should be decided first before proceeding a step further. In the light of above discussion, I am of the view that if an order of dismissal of allowance passed on an application in respect of any issue has finally decided the said issue, then such an order possesses the characteristic of finality notwithstanding to the pendency or final disposal of the case on the basis of that order and an appeal against such an order would be maintainable. If no final order regarding an issue has been passed on an application and the point raised by any party has been deferred for the time being, then such order, can be termed as "interlocutory." It may not be out of place to mention that the words "Interlocutory" in its dictionary meaning means "not final or definitive", pronounced during the course of a suit pending final decision as an interlocutory divorce decree." (Websters, New Universal Unabridged Dictionary). Therefore, an order passed on an application cannot be treated interlocutory if the Court has given a final or definitive decision on an issue relating to the maintainability of a suit or the jurisdiction of the court. In this regard I would also like to refer the concept of "Interlocutory" from Wharton's Law Lexicon (fourteenth edition) which appears on page No. 529 as under:- "Interlocutory: An Interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties." Similarly Section 94 C.P.C. also provides some help to understand the real import of an Interlocutory order. Section 94 C.P.C. runs as under: - 94. Supplemental proceedings.-In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed. (a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison. (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property. (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Court to be just and convenient. (Underlining is my own). The above quoted clause (e) gives clear impression that any such Interlocutory orders can be passed as may appear to the court to be just and convenient in order to prevent the ends of justice from being defeated. As the Here in Italics. question of jurisdiction finally decides the right of the contesting parties as well as of the court regarding continuance or ending of proceedings of any case in a Court and moreover such an order is not passed to prevent the ends of justice from being defeated, therefore, I am of the view that an order passed on the point of jurisdiction of the Court, if decided finally and not deferred, can never be treated as Interlocutory order. On the basis of this proposition an order of dismissal (as in the present case) or allowance of an application on the point of jurisdiction, in my opinion, is not an interlocutory order, therefore, an appeal against such order under section 14(1) of Family Courts Act, 1964 would be maintainable provided the same is not hit by section 14(2) of the said Act. 8. This proposition also embraces the view that expression "a decision given" appearing in section 14 of the Act has to be construed under the rule of ejusdem generis to provide appeals only against orders which are final in their nature and not interlocutory. If the case of present petitioner is tested on the basis of this proposition, then it radiates that as the Judge, Family Court, had finally decided the question of jurisdiction and as the said application was not hit by section 14(2) of the Act, therefore, appeal against the said order under section 14(1) of the Act was maintainable. In alternate, if it is presumed that neither the order was appealable nor other remedy was available under law against that order of the Family Court, then the aggrieved party would be left with no other alternate but to invoke Constitutional Jurisdiction provided the impugned order was passed without jurisdiction and/or was illegal. In the light of above discussion, the question which gained importance before this bench in his case is whether dismissal of application on the point of jurisdiction by the Judge, Family Court on merits and dismissal of appeal by the appellate Court on technical ground can attract the Constitutional Jurisdiction of this Court or not? The answer returns in positive. My reasons for holding so are as under:- If the order of the learned Additional District Judge (South) Karachi is set aside and the matter is remanded back to that court to decide the same afresh by treating the impugned order of the Family Court appealable and as a result of remand if the appellate court upholds the order of Judge Family Court on merits, then the Petitioner will again rush to the High Court to invoke the Constitutional Jurisdiction against the order of the appellate Court. It is, thus, obvious that it shall cause further delay in disposal of the family suit which is against the spirit of the Preamble of the Act as pointed out in the foregoing lines. ,9. Keeping in view all these expected consequences, realising the effects of reflections of averments advanced by the learned advocate which were not too convincing to allow the petition, apprehending the purpose of Preamble of the Act to be defeated and sensing scandalous delay in disposal of the family case by thwarting the main proceedings in such manners as experienced in the past, I admitted the petition on 21.6.1995 and fixed it for regular hearing on the same day to find out the justness or impropriety of the order of the Judge family Court passed on merits, notwithstanding to the view taken by the appellate court on technicalities, by seeking support from the cases reported in PLD 1973 S.C. 236, PLD 1982 SC 413' and 1986 SCMR 1561. After weighing the contentions of the learned advocate in the scales of justice, I found the same to be devoid of any meritoriousness. My reasons, for holding so, are based on the following facts available on the record of the case: (i) It has been mentioned in the plaint that parties lived together within the limits of P.S. Mehmoodabad, as husband and wife, (para 5 of the plant). This fact was not specifically denied in the W.S. The relevant portion of the W.S. runs as under:- "That as regards the cause of action in para 5 of the plaint, it is submitted that no date and time is given and there exists no cause of action and the defendant has never neglected to maintain the plaintiff or have maltreated her." It is thus clear that objection regarding jurisdiction of the Court was not specifically denied. (ii) Legal position relating to jurisdiction is incorporated in Rule 6 of the West Pakistan Family Courts Rules 1965 which runs as under: - "Rule 6. --The Court which shall have jurisdiction to try a suit will be that within local limits of which; (a) The cause of actions wholly or in part has arisen; or (b) where the parties reside or last resided together; . Provided that in suits for dissolution of marriage of dower, the court within the local limits of which the wife ordinarily resides shall also have jurisdiction." A bare perusal of the above rule leaves no ambiguity that a wife has four options to institute her suit for dissolution of marriage in any such court within the local limits of which; (a) The cause of action wholly or partially arose; (b) she resides or her husband resides; (c) she last resided with her husband; or (d) she ordinarily resides. Thus, according to my point of view, the address given in the Nikahnama of the parties or the address given in the title of the suit is immaterial for the purpose of instituting a suit for dissolution of marriage. If it appears from the record that Respondent Shahnaz Bibi resides or last resided with her husband or is ordinarily residing with any of her relatives or at a place where the cause of action wholly or partially arose then she can institute her case in any of the four courts if each option to institute the suit was attracted by different Family Courts. In presence of the above legal position, two letters brought on record are of great importance to decide the issue in dispute. The petitioner had sent one letter to S.H.O. Mehmoodabad and the other to the Inspector General Police of Sindh levelling allegations against his mother-in-law. The address of the Petitioner in those letters appears to be: "House No. 804, Street No. 10, Sector E, Akhtar Colony, Karachi." This address falls within the local limits of Judge Family Court whose jurisdiction was assailed by the Petitioner on the ground that address in the title of the plaint attracted the jurisdiction of another Family Judg (iii) Inspite of this documentary evidence, the learned advocate shocked me by insisting that the address of plaintiff and the defendant shown in the title of the plaint is of "Qayyumabad Karachi" and, therefore, the court is bound to believe that the parties are residents of Qayyumabad and not of Akhtar Colony. I think that the learned advocate must be fully aware of this reality that "falsehood has no legs to stand upon." If the learned advocate had gone through the address of the plaintiff/petitioner for service submitted by him alongwith the W.S., he would not have insisted upon his stand because the address of the plaintiff for service is also the same as in the above-mentioned referred letters. This aspect cannot be ignored by this court to presume that the present petitioner had been or must be residing on the address given by him alongwith the W.S. himself and the said address falls within the local limits of the Court whose jurisdiction is being assailed by him. (iv) In the last, the learned advocate drew my attention to the incomplete cross-examination done by him on 23.10.1994 and which appears to be pending since that time. There is nothing in the cross-examination to show that the parties never resided within the local limits of the Police Station Mehmoodabad. Although the Petitioner has stated in his affidavit filed in support of the application for dismissal of the suit that none of the documents (show) that the plaintiff or the defendant ever lived within the jurisdiction of the Mehmoodabad Police Station, yet on the face of letters mentioned above and address of the petitioner on those letters sent by him as well as the address of the Petitioner's service submitted through the learned advocate for the Petitioner expose him fully in the eye of the Court. All these factual aspects radiate the justness and propriety of the order passed by the Judge Family Court and the only impression which springs out of the proceedings before the appellate court or this Court is that the Petitioner wants to delay the matter by hook or crook. 9. In the light of the reasons as listed above, the petition, being devoid of any merits, is dismissed. 10. Before parting with this judgment, I consider it necessary to issue following directions on account of delay caused in disposal of the Family Suit due to proceedings before the appellate court as well as well as before this Court: (i) The trial court shall not adjourn this matter for more than seven days after every date of hearing till the matter is finally disposed of unless there are unavoidable circumstances not to comply with this direction. (ii) If any of the parties remains absent on any date fixed for recording of evidence or arguments, the matter be adjourned to the next day unless consented in writing by the party present in the court for another date. These directions are being issued to prevent the purpose of Preamble, of Family Courts Act from being defeated (iii) If there is no stay from any higher forum, the Judge, Family Court is not supposed to adjourn the proceedings such as recording of evidence, hearing of arguments, etc. 11. I also consider it appropriate to bring on record the following recommendations for the Government of Sindh regarding Family Courts with reference to Section 4 of the Family Courts Act, 1964 which runs as under:- "4. Qualification ofJudge.~No person shall be appointed as a Judge of a Family Court unless he is or has been a District Judge and Additional District Judge, a Civil Judge or a Qazi appointed under the Dastural Amal Diwani Riasat Kalat." The word "Civil Judge" include "Second Class as well as Third Class Judges" in Karachi (Sindh) who serve as Family Judges. As Constitutional Jurisdiction is invoked in large number of cases against the orders of Family Courts, therefore, such cases in the trial Court be dealt by Senior and more experienced Judges as compared to the Second or Third Class Civil Judges. In this connection burden of Civil Suits can be shifted from the Senior Civil Judges to the Ilnd and Third Class Civil Judges by increasing their pecuniary jurisdiction and in return, the family cases, which are most sensitive can be dealt by the Sr. Civil Judges. Note: It is necessary to point out that all Judges of Family Courts are expected to dispose of Family Cases expeditiously not later than six months as per circular/letter dated 5th July 1987, issued by the High Court of Sindh. (MYFK) Petition dismissed.

PLJ 1996 Karachi 387 PLJ 1996 Karachi 387 Present: abdul RAHIM KAZI, J. M/s GALAXY CONSTRUCTIONS (PVT.) LTD.-Appellaht Versus DR. KHALID MAHMOOD DURRANI-Respbndent F.R.A. No. 469 of 1994 decided on 28.9.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)- —O. 30 and 31--Whether provisions of Civil Procedure Code are applicable in rent cases and whether rent case is not maintainable against individual where tenancy is in the name of a firm—Question or-Firm is not a juristic person but a compendious name for all persons who are partners of firm and suing name of a firm has same effect in favour or against all partners of firm-However provisions of Civil Procedure Code are not applicable in rent cases. [P. 393] E (ii) Maintainability- —Whether word "declare" can only be used in declaratory suit under S. 42 of Specific Relief Act-Question of~Mere use of word "declare" would not render prayer as one under section 42 of Specific Relief Act-It is substance which has to be looked and not mere words. [P. 392] D (iii) Possession-- —Possession can be possession in fact or "possession in law"-Even otherwise it can be of different kind and one such kind is mediate possession which would mean possession, held by one on account of other to obtain direct possession from holder on completion of fulfilment of certain event. [Pp. 390 & 391] B PLD1990SC369re/. (iv) Sind Rented Premises Ordinance, 1979- —S. 21--Specific Relief Act,'S. 42-Ejectment of tenants with observation of Supreme Court that they will be reinducted after reconstruction of flats- Fresh suit to declare respondents that they have lost right to reinduction due to non payment of outstanding electricity Bills-Whether second suit filed on fresh cause of action-Question of-In order to arrive at a conclusive finding it would be necessary that parties be permitted to lead evidence and to extract fact as to whether arrears of electricity were outstanding or not--Parties will have to be subjected to cross-examination as well-Held: Parties may be allowed an opportunity to lead evidence and bring on record, documents if any, case remanded to rent controller. [Pp. 390 & 393] A & F (v) Tenant- —Right of tenant will continue even after the possession has been handed over to landlord in compliance with order of ejectment passed on plea of demolition and reconstruction-He could be made liable for any penal action or eviction as contemplated under rent laws.; [P. 391] C Mr. Muhammad Sharif, Advocate, for Appellant. Mr. Khalid Latif, Advocate, for Respondent. Date of hearing: 28.9.1995. judgment By this common judgment I intend to dispose of these eight appeals as they arise out of the common order passed by the Rent Controller. Briefly the facts are that the present appellants, the landlords and owner of Hussain D'Silva Park situated at Clifton, Karachi had instituted the rent cases for ejectment of the opponents/tenants in respect of Flats No. 10, 37, 09, 34, 25, 30, 20 and 12 respectively on the ground of demolition and reconstruction. The rent cases filed by the present appellant were allowed, the respondents iad preferred appeals which were distaissed in limine. Thereafter the respondents filed petitions for leave to appeal before the Hon'ble Supreme Court of Pakistan which were also dismissed with observation that after reconstruction of the flats the present appellants will reinduct the tenants. However, subsequently the present appellants preferred the rent cases as above before the Rent Controller on subsequent cause of action. The case of the appellants is that the respondents/tenants have committed wilful default in payment of electricity bills as at the time of their handing over vacant possession they had not cleared the arrears of the KESC and that the present appellants were informed of this fact by KESC when he wanted to demolish the structure and for that purpose he approached the KESC authorities with the request of a removal of their electricity meters. The case of the appellants is that electricity charges being a part of the rent, non­ payment thereof would amount to default and therefore the respondents would loose their right of reinduction. The rent case was vehemently contested by the present respondents. Their contention is that the respondents had cleared off all the arrears of electricity at the time of their vacating the premises and that these facts also came under consideration before the Hon'ble Supreme Court in the application moved by them for review of the previous orders and that the Hon'ble Supreme Court did not give any specific finding on this point and therefore it should be deemed that the said plea of the appellants were rejected. Learned counsel for the respondents has further argued that in two of the cases being .present FRA Nos. 471 and 475 of 1994 the very rent cases as filed were not maintainable in law. Lastly the learned counsel for the respondents has taken the plea that the prayer made in the rent case is in the form of declaration which could be granted only under section 42 of the specific Relief Act in a Civil Suit and not in a proceeding under Sind Rented Premises Ordinance 1979, hereinafter referred to as the Ordinance. I have heard. Mr. Muhammad Sharif, learned counsel for the appellants and Mr. Khalid Latif, Advocate for respondents. As regards factual aspect, the main contention of the learned counsel for the respondents is that the respondents had handed over the possession of the disputed premises to the appellants/landlords on 15.2.93 by which date the respondents had cleared all the outstanding bills of electricity. He has referred to photostat copy of such receipt signed by the 2 advocates showing the handing over and taking over. This receipt of course shows handing over and taking over the possession but it does not mention if all the arrears of electricity are cleared. Learned counsel has pointed out that photostat copies of the bills which have been placed on the record do show that the payments have been made by the respondents till the month of January, 1993. He has also produced photo stat copies of certain letters written by him to KESC and a letter from KESC'dated 21.5.95 which shows that certain inquiry was held and ultimately in the last paragraph of the said letter it is observed "Since the supplementary bills issued are wrong in principle and there is no chance of recovering the amount it is suggested that the subject bills, summarized as under may be withdrawn." From this Mr. Khalid Latif has argued that these bills were false and have been procured from KESC in order to make a ground against the present respondents. As against this Mr. Muhammad Sharif, learned counsel for the appellants has argued that in the first instance all these documents and copies of bills are being produced during the course of hearing of this appeal and were never brought on record before the Rent Controller. He has submitted that the above conclusion of the KESC in its letter would show that it has not been held that these bills were false or forged but all that is said is that these bills are wrong and there is no chance of recovering the amount therefore the bills may be withdrawn. He has submitted that in each appeal the respondents themselves have moved application under section 21 of the Ordinance praying for holding of an inquiry of facts. It is an admitted fact that the order was passed by the Hon'ble Supreme Court in review application on 10.8.93 whereas the case of the appellants in present matter is that it was in 16.9.93 that the appellants were informed by the KESC about the outstanding amounts pertaining to electricity charges for which the KESC has also issued separate bills. In these circumstances, also it can be assumed that the knowledge of the outstanding arrears as claimed in the present rent cases was acquired by the appellants only after the orders were passed by the Hon'ble Supreme Court and therefore this could afford a fresh cause of action. I have carefully considered the above submission of the learned counsel. From this discussion and submission of the counsel and from prayer made by the respondents it would appear that in order to arrive at a conclusive finding it would be necessary that the parties be permitted to learned evidence and to extract the fact as to whether the arrears of electricity were outstanding or not and for this purpose parties will have to be subjected to cross-examination as well. The other point which arises out of above discussion would be as to whether the acquisition of the knowledge of outstanding electricity charges would afford a fresh cause of action to the appellants. The contention of the advocate for the respondents is that since the possession was handed over to the appellants the respondents would not be liable for any penal action. As against this Mr. Muhammad Sharif, Advocate for the appellants has submitted that the possessions which has been received by the appellants in consequence of the ejectment orders passed against the tenants is only a notional possessions held by appellant on behalf of the respondents. He has submitted that in the present case the orders show that the respondents are evicted only to the reinducted on the construction of the building and therefore the possession which is held at present by the appellants/landlords is only a notional possession. It may be observed that the possession can be "possession in fact" or "possession in law". It may further be observed that even otherwise possession can be of different kind and one of such kind is mediate possession. Mediate possession would mean possession held by one on account of or recognising the right of the other to obtain the direct possession from the holder on completion of or fulfilment of certain event. In the present case, the appellants would be holding the possession on behalf of the tenants to hand over the same after reconstruction of the building. Reliance may be placed on the case of (Muhammad Rifatullah Alvi v. Imran Ansari) reported in PLD 1990 S.C. page 369. Learned counsel for the appellants has also placed reliance on the case of (Matloob v. Mst. Saeeda Khatoon) reported in 1988 SCMR page 1575, in this case their lordships have been pleased to hold as under: - "As the second contention, it is sufficient to state that obtaining possession on the ground of reconstruction does not ipso facto terminate the tenancy of the tenant who was in occupation of such premises at the time of such an order. The reason is that upon reconstruction of a new building the law gives the tenant of the old premises the option to be reinstated in the new building. It, therefore, follows that during the time the new construction is being set up, part of the building to be constructed is held by the landlord in trust for the benefit of the ousted tenant, until such time as it becomes certain that the tenant does not exercise his option of reinstatement within the prescribed time. Therefore, it will not be correct to say that the respondent is in occupation of another building of her own at the time when the eviction order in this case was passed." Similarly, in the case of (Ghulam Nabi vs. Mushtaq Ahmed) PLD 1980 S.C. 206 their lordships have held that reinduction in such cases under the old law is a right of the tenant and he could not be deprived of such right in view of the provisions of section 13(5) of the West Pakistan Urban Rent Restriction Ordinance 1959. Thus the outcome of the above discussion is that the right of the tenant would continue even after the possession has been handed over to the landlord in compliance with the order of ejectment passed on the plea of demolition and reconstruction. Therefore the relationship of landlord and tenant would continue with the consequence that the tenant can be made liable for any penal action or eviction as contemplated under the rent laws. Now I take up the question with regard to maintainability of the rent case. The objection raised by the learned counsel for the respondents with regard to the plea that the prayer in the rent case in terms of the declaration can only be granted under section 42 of the Specific Relief Act in a suit and not in the rent case, Mr. Muhammad Sharif, counsel for the appellants has submitted that this is the only mode in which the appellants could have sought their reliefs. He has argued that at present physically possession had been handed over to the appellants and therefore appellants could not have sought the relief of eviction but the only relief that he could have sought is to the effect that the respondents be declared to have lost their right of tenancy or their right of reinduction. It may be pertinent to reproduce the prayer clause in the application which reads as under: - "In view of the above circumstances, it is prayed that this Hon'ble Court may be pleased to declares that the opponent is defaulter in payment of electric charges which is part of rent and liable to pay the same and also declare that the opponent damaged the tenement/flat No. 10 situated at Clifton, Hussain D'Sliva Par, Karachi and due to aforesaid default and damages the opponent has lost his right of reinducting in the flat of new building. any better relief/reliefs which this Hon'ble Court deem fit and proper in the circumstances of the case may be awarded." ' The concluding sentence of the above prayer clause is with respect to the respondents having lost their right of reinduction. It may be observed that^ mere use of word "declare" would not render the prayer as one under section 42 of the Specific Relief Act. It is the substance which has to be looked into and not mere words. The learned counsel for the respondents has further argued that the tenancy in the present case is governed by the previous Ordinance of 1959 and not the Ordinance of 1979. He has submitted that therefore the rights of the parties will be governed as under the old law. It may be observed that though in some cases the original agreement of tenancy were executed prior to 1979 i.e. promulgation of the new Ordinance but the same being only for 11 months stands expired long ago and were not renewed. Learned counsel for the appellants has relied on the case of (Abdul Rehamn vs. Hqji Mir Ahmed Khan) PLD 1983 S.C. page 21 which lays down that in the matter pending before court at the time of promulgation of new law, the rights of the parties will he governed old law while the procedure will be that of new law. This is not the case in the matter in hand. However, it may be observed that the simple question which is involved in the present case is as to whether the present respondents continue to be the tenants of the appellants and if so whether they are governed by rent laws for any subsequent event which in the present case is the acquisition of the knowledge of default committed on part of the tenants. I have already discussed that this is a point which would require recording of the evidence. Other objection raised by the learned counsel for the respondents is that in two of the present cases the tenancy is in the name of Body Corporate and a firm and therefore the present application against individuals would not be maintainable. In the case of present FRA No. 471 learned counsel has submitted that the tenancy is in the name of Power Engineering which is a limited company and therefore the rent case against Amant H. Khan would not be maintainable and similarly in the other case against Sam Mawalwala the tenancy is in the name of Asha Motors and therefore this application in the name of individual is not maintainable. He has referred to provision of rders 29 and 30 of the Civil Procedure Code. The counsel for respondents has also relied on the case of (Ghulam Nabi v. Mushtaq Ahmed) PLD 1980 S.C. 206. This case would not be helpful to the learned counsel. On the contrary in this case their lordships have held that the provisions of Civil Procedure Code are not applicable in case of proceeding before the rent controller. The other case relied on by the learned counsel is that of (Province of Punjab vs. Mufti Abdul Ghani) PLD 1985 S.C. 1. The facts of this case are different from the present case and have no bearing on the present case. Learned counsel has also referred to the case of (Sheerin Bai vs. Muhammad Hanif and anothers) NLR 1986 Civil 762 wherein a learned single Judge of this Court has held that in the given circumstances the right of tenant for restoration of possession cannot be defeated by sale of building by landlord who had obtained the possession on the ground of reconstruction. This case also has no bearing on the present case. It may be observed that it is settled law that the provisions of Civil Procedure Code are not applicable to the rent cases. In the case of Messrs Combined Enterprises us. Water and Power Development Authority Lahore (PLD 1988 S.C. 39) their lordships while dealing with the provisions of Order 30 Rule 1 CPC have observed that a partner is the agent of the firm for the purposes of business of the firm. It is also observed that under the law a firm is not a juristic person but a compendious name for all persons who are the partners of the firm and the effect of the suing of the name of the firm is to bring all the partners before the Court which is a convenient method for suing the persons who constitute the firm at the time of the accrual of cause of action and decree in favour of or against all the partners. However, as discussed above that the provisions of Civil Procedure Code on not applicable in rent cases, it would be open for the Rent Controller to adopt the procedure as considered by him to be appropriate. This provision is also with regard to procedure and not the substantive rights created under Civil Procedure Code. In view of the above discussion I am of the opinion that appellants could not be non suited merely on technical ground but the Rent Controller should have allowed them an opportunity to lead evidence and plead their case on merits. This is also the prayer made by the respondents in their applications under section 21 of the Ordinance. In these circumstances, I accept these appeals, set aside the orders passed by the Rent Controller and remand the case with directions that parties may be allowed an opportunity to lead evidence and bring on record the documents, if any, according to law and then pass orders on merits. However, there will be no order as to cost. No further orders are to be passed in execution till final orders as above are passed. (MYFK) Appeals accepted.

PLJ 1996 Karachi 401 PLJ 1996 Karachi 401 Present: RASHEED A. RAZVI, J. SHAFT MUHAMMAD-Petitioner versus PRESIDING OFFICER, LABOUR COURT No. VIII HYDERABAD and 2 others-Respondents Const. Petition No. S-32 of 1995 decided on 8.2.1996. Industrial Relations Ordinance, 1969-- -—S. 8(7) read with Constitution of Pakistan, 1973 Article 199--Jurisdiction- -Question of~Petitioner challenging orders passed by Labour Courts at Larkana and Hyderabad through which application under section 8(7) of IRO, 1969 which were not entertained by both Labour Courts on ground of jurisdiction-There is no provision in Industrial Relations Ordinance, 1969 which provides determination of question of jurisdiction to Labour Courts-Under section 35 of IRO, Provincial Government is competent to establish as many as Labour Courts by notification in official Gazette and it is through such notification that territorial limits of Labour Courts are determined-Petitioners workers union and Larkana Sugar Mills Ltd. Are situated within territorial limits of Labour Court at Larkana and since Head Office of Registrar, Trade Unions is situated at Hyderabad, therefore, both Courts have jurisdiction in view of section 20(c) of Civil Procedure Code, 1908-Order accordingly. [Pp. 404 & 405] A Syed Fasahat Hussain Rizvi, Advocate, for Petitioner, Mr. Nadir Khan Yousufzi, Deputy Director Labour, Hyderabad. Mr. Abdul Sattar Qazi, Addl. A.G. Sindh alongwith Mr. Abdul Latif Ansari, Assistant Advocate, General Sindh on Court Notice. Date of hearing: 8-2-1996 judgment The petitioner who claims to be elected general secretary of Larkana Sugar Mills Limited Employees Union (hereinafter referred to as the union) has filed this petition under Article 199 of the Constitution, 1973 challenging the orders passed by Labour Courts at Larkana and Hyderabad through which his application under section 8(7) of the Industrial Relations Ordinance, 1969 which were not entertained by both the Labour Courts on the grounds of jurisdiction. The petitioner has prayed for the following relief:- "It is, therefore, prayed that this Hon'ble Court will be pleased to hold and declare that both Labour Courts No. VI and VIII at Hyderabad and Larkana respectively have jurisdiction in the matter and Orders dated. 15.6.1995 (Annexure P/l) passed by learned Respondent No. 2 and dated 9.7.1995, passed by learned Respondent No. 1 are of no legal effect and set aside the same and or award any other relief as deemed just and proper." 2. The brief facts giving rise to this petition are that on 29th March, 1995 internal elections of the union were held and the result was communicated to the Deputy Director Labour, Larkana as well as to the Registrar, Trade Unions, Hyderabad Region. It is further averred in the petition that on 2nd April, 1995, the petitioner asked respondent No. 3, namely, Registrar, Trade Unions to accept the change and for issuance of necessary order. The respondent No. 3 instead of accepting the change in the union issued a show cause notice dated 19th April, 1995 calling upon the petitioner to explain as to why election results were not communicated within the stipulated time of Form-A Schedule-I of the IRQ, 1969 and that the Executive Committee was not constituted in accordance with the provision of the bye-law of the union. 3. The petitioner being aggrieved by the above said order of the Registrar, Trade Unions filed an application under section 8(7) of IRO, 1969 before the Labour Court No. VIII, Larkana which was returned to the petitioner for presentation to the Court having jurisdiction through an order dated 15th June, 1995. It was held by the Labour Court at Larkana that since the Head Office of the respondent No. 3, namely, Registrar, Trade Unions was situated in Hyderabad as such the Labour Court at Larkana has no jurisdiction. Thereafter the petitioner filed same petition before the Labour Court No. VI at Hyderabad. This time, the application was gain returned to the petitioner on the same ground that the Labour Court at Larkana has jurisdiction. 4. I have heard Mr. Syed Fasahat Hussain Rizvi, Advocate for the petitioner and Mr. Nadir Khan Yousufzai, Deputy Director Labour, Hyderabad who has appeared on behalf of respondent No. 3. Notice was also issued to the learned Assistant Advocate General Sindh who appeared and assisted the Court in this matter. At the very outset Mr. Nadir Khan Yousufzai has raised objection as to the maintainability of this petition on the ground that the petitioner should have filed before the Labour Appellate Tribunal as constituted under section 38 of the IRO, 1969. 5. The learned Additional Advocate General, Sindh as well as respondent No. 3 have 'argued that according to the bye-laws of the union, the so-called elections as held in the month of February, 1995 were for one year which period has expired now and therefore, this petition has become infructuous and according to the respondents, it is liable to be dismissed. They have also argued that the so-called elections as claimed by the petitioner was entirely sham and bogus elections inasmuch as the respondent No. 3 had received initial intimation of change for only five office bearers. According to the respondent No. 3, on 2nd April, 1995 after issuance of the show cause notice to the petitioner he submitted a list of 20 office bearers to fill in the lacuna in the first request for accepting the change. In back ground of these circumstances, it is vehemently prayed that this petition be dismissed in limine with cost. 6. Mr. Fasahat Hussain Rizvi has stated in reply to the above objections that he is aggrieved on the question of jurisdiction of both the Labour Courts and that he has not filed this petition on merits. Be that as it may, the respondent shall be entitled to raise the above factual position before the concerned Labour Court provided the proceedings U/S 8(7) of IRQ, 1969 is admitted by the said Labour Court. 7. Appeal against the awards and decision of the Labour Court is provided under section 37(3) of the IRO, 1969. This subsection provides that any party, if aggrieved by an award given, under subsection (1) or by a decision given under section 25-A; section 34 or by a sentence passed under clause (c) of subsection (5) of section 35, may prefer an appeal to the Labour Appellate Tribunal within 30 days. Subsection (4) of section 37 extends finality to all other decisions, sentences passed by a Labour Court. In the instant case, the application of the petitioner filed under section 8(7) of IRO, 1969 was not entertained by both the Labour Courts and, in my view, the orders passed by the Labour Courts are not sustainable and, therefore, this petition is maintainable. Even otherwise since both the Labour Courts have failed to exercise jurisdiction vested in the said Courts, this petition is maintainable. 8. Both the Labour Courts have referred to the two decisions of this Court while passing their respective orders. In the case of Pakistan arehouse Carriers Workers Union and another v. Presiding Officer, Sindh abour Court No. V, Karachi and 2 others (1982 PLC 528), it was held by a learned Single Judge of this Court that jurisdiction of the Labour Court in respect of an appeal against the order of Registrar, Trade Unions refusing change in office bearer is to be determined with reference to territory in which Head Office of such Registrar, Trade Unions falls and not with reference to different sub-offices in different parts of city. In the case of Mazdoor ethad Union Star Textile Mills and another v. Third Sind Labour Court and 4 others (1983 PLC 491), it was held by another learned single Judge of this Court that the Labour within whose jurisdiction the Mill is situated shall have jurisdiction to entertain an appeal filed under section 8(7) of the Industrial Relations Ordinance, 1969. However, there is a recent decision of a Division Bench of this Court reported as Pakistan Steel Mills Corporation, Karachi v. Nisar Ahmad Memon and 2 others (1995 PLC 57) herein an objection was raised that since the Head Office of the petitioner is situated at a Karachi as such the Labour Court at Hyderabad has no jurisdiction. The Division Bench of this Court held as follows:- ". . . However, the question in the present case involves the occurrence of cause of action and it is to be determined as to where the cause of action accrues. It may be observed that the words "cause of action" means bundle of facts giving rise to a right which the plaintiff will have to prove if controverted or traversed by the defendant This also involves the infringement of such right." In the present case it is an admitted position that at the time the service of the respondent No. 1 where terminated he was serving the project at Makli. The provisions of section 20 clause (c) of the Civil Procedure Code, provides that a suit can also be filed where cause of action in whole or in part accrues...." 9. In support of the above view as held in the case of Pakistan Steel Mills Corporation, I would like to refer section 36(2) of the IRQ, 1969 which provides that a Labour Court for the purpose of adjudication and determining any industrial dispute shall be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 including the powers of enforcing attendance, compelling the production of documents and issuing commissions for examination of witnesses. I may further refer to a case of Messrs Merck Sharp & Dhome of Pakistan Ltd. v. Sindh Labour Appellate Tribunal and 2 others (1982 PLC 148) where a Division Bench of this Court comprising of Mr. Ajaml Mian and Mr. G. M. Korejo, JJ. (as they then were) took the same view. 10. There is another authority of a Division Bench of this Court which supports the view that under certain circumstances two Labour Courts enjoy jurisdiction which are concurrent and it is the discretion of the parties to invoke either of the said jurisdiction. Reference is made to the case of Sindh Alkalis Ltd. v. Fourth Sindh Labour Court and others (1983 PLC 1220) decided by a Division Bench of this Court comprising of Mr. Ajmal Mian and Mr. Saleem Akhtar, J.J. (as their lordship then were). In this reported case, the respondent/employee was working at the factory situated at Landhi while the Head Office of the appellant was situated at I.I. Chundrigar Road, Karachi. An objection was raised on the maintainability of the petition on the ground of territorial jurisdiction of the Labour Court which was overruled. Consequently, appellants went to the Labour Appellate Tribunal and being aggrieved by the said order, they preferred the Constitutional Petition before this Court which was dismissed in limine. In such circumstances, it was held that both the Labour Courts have concurrent jurisdiction as the factory was situated within the territorial jurisdiction of one Labour Court while the Head Office of the Mill was situated within the territorial jurisdiction of the other Labour Court. The rule laid down in the Sind Alkalis Ltd. supports the view that section 20 (c) of the CPC is fully attracted before the Labour Courts while deciding the question of jurisdiction arising out of multiple causes of action 11. There is no provision in the Industrial Relations Ordinance, 1969 which provides determination of question of jurisdiction to the Labour Courts. Under section 35 of the IRO, the Provincial Government is competent to establish as many as Labour Courts by notification in the Official Gazette and it is through such notification that the territorial limits of these Labour Courts are determined. In the instant case, since the petitioners worker union and the concerned Mill are situated within the territorial limits o^ Labour Court at Larkana and since the Head Office of the Registrar, Trade Unions is also situated at Hyderabad, therefore, both the Courts have jurisdiction in view of section 20(c) of the Civil Procedure Code, 1908. 12. In view of the above findings, this petition stands disposed of. (K.K.F.) Order accordingly.

PLJ 1996 Karachi 405 PLJ 1996 Karachi 405 Present: hussain ADIL KHATRI, J. MIRZA ANWAR BAIG-Appellant versus ABDUL RAB-Respondent F.R.A. No. 234 of 1991 dismissed on 6.8.1995 Sind Rented Premises Ordinance 1979-- —-S. 1Q & 15--Tenant--Ejectment of--Defauh>-Ground of--Contention that words used in agreement for payment of rent in advance were against provisions of Ordinance-Word "advance" has no legal value as according to section 10 of Ordinance, what is important is date when rent becomes due-Submission is without any substance-Rent becomes payable in terms of mutual agreement between parties when there is such agreement, otherwise rent becomes payable on 10th of month next following month for which it is due-There was an agreement for payment of rent in advance-It was specifically pleaded that rent was payable in advance on first of month-Such averment was not disputed either in written statement or in evidence by appellant—Accordingly rent having not paid within 15 days of expiry of period prescribed by mutual agreement-Held: Appellant had incurred liability of eviction under Section 15 of Ordinance-Appeal dismissed. [P. 409] A Mr. Asar Hussain, Advocate, for Appellant. Mr. Muhammad Akram, Advocate, for Respondent Date of hearing: 6.8.1995. judgment The present appeal has been filed assailing the order dated 9.3.1991 passed in Rent Case No. 1541 of 1983 by the 1st Senior .Civil Judge & Rent Controller, Karachi Central, whereby the appellants was ordered to be evicted from the shop measuring 90 square yards situated on the ground floor of the building on plot No, 4/1116 Liaquatabad, Karachi. The respondent/Landlord had sought the viction of the appellant on the grounds of default in payment of rent for the months of February, March and April 1983, and requirement of demised shop for the respondent's sons who were carrying on furniture business on footpath for more than two years prior to institution of the rent case. According to the respondent, the monthly rent originally was Rs. 200/- which was with the passage of time increase to Rs. 300/- per month. However, the appellant with respect to the quantum of rent pleaded that in January 1983 the rent was enhanced to Rs. 350/- and accordingly he paid the said rent to the respondent on the intervention of Furniture Market Association. He further claimed that he paid the rent for the month of February 1983 so also March 1983 in time and demanded receipt but it was not issued on the pretext that it would be issued after the respondent purchased the receipt book. The respondent thereafter, according to appellant, started pressurizing him to increase the rent to Rs. 400/- per month. Such demand was not accepted by the appellant and he started depositing rent in Misc. Rent Case No. 1470 -of 1983. It is further pleaded that the respondent had approached the appellant for loan for the purpose of carrying out repairs/reconstruction of the demised shop. The appellant paid a sum of Rs. 28,000/- as loan to the respondent and a tenancy agreement was executed for an indefinite period with the condition that the appellant would not be evicted from the demised shop on the ground of requirement thereof by the respondent for his personal use or the use of his children. The learned Rent Controller after recording evidence reached the conclusion that the rate of rent was Rs. 300/- per month. The receipt produced by the appellant to establish that the rent was Rs. 350/- was found to have been tempered and was disbelieved. It may be pointed out that the aforesaid receipt pertains to payment of the rent of the month of January 1983. It was brought on record as Ex. 0/4. It may further be pointed out that a photo copy of the said receipt was produced as Ex. 0/3. With regard to the requirement of the demised shop for the use of the sons of the respondent, the learned Rent Controller reached the conclusion that the respondent having bartered his right of evicting the tenant on the ground of personal requirement, under the agreement of the tenancy, he was not entitled to the relief on such ground. With respect of default in payment of rent, the learned Rent Controller reached the conclusion that the appellant having failed to pay rent within 15 days of the agreed date of payment of rent for the month of March and April 1983, he was liable to be evicted. The tenancy agreement was executed between the parties on 6.7.1970. It specifically provided that the tenancy would be for indefinite period and the landlord would not claim the possession of the shop on the ground of his or of his children's personal use or on any other ground subject to the condition that the tenant would regularly pay the rent in advance. I have heard Mr. Muhammad Asar Hussain learned counsel for the appellant and Mr. Muhammad Akram Shaikh learned advocate for the respondent. The learned counsel for the appellant relying on Section 10 of the Sindh Rented Premises Ordinance, 1979 (Ordinance XVII of 1979) submitted that as no date has been fixed in the agreement for payment of rent, the rent was payable by 10th of the month, next following the month for which it is due. It is further submitted that no period having been fixed for payment of rent, the eviction can be ordered on the ground of non­payment of rent, if it is not paid within 60 days after the rent has become due for payment. Reliance was placed on Section 15(2)(ii) of the Ordinance. Relying on the aforesaid provision, it was submitted that due date for payment being 10th of the month, the time of 60 days to constitute the default in payment of rent, would be computed after the exipry of the 10th of the month. It was thus submitted by him that the appellant having deposited rent in Misc. Rent Case on 17.4.1983 for the months of March and April, he was not liable to be evicted on the ground of default. He placed reliance on the cases of Yawar Bagi vs. Usman Ghani Cheepa (1989 CLC 247), Babu v. S.M. Rafi (1989 CLC 294), Hakeem Moazzumuddin Baqai vs. Abdul Hussain Tahir Alt and 3 others (1989 CLC 722) and Fareew Ahmed vs. Fikree Development Corporation (1991 MLD 2609). The above provisions of law have been succinctly analysed by Saleem Akhtar, J. (as he then was now Judge of the Supreme Court) in the last mentioned case as under:- In this connection section 10 may also be referred which provides that the rent shall in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant be paid not later than the 10th of the month next following the month for which it is due. The question for consideration is whether in a case where an agreement which provides "for period of tenancy but does not fix a date for payment of rent the grace period shall be 15 days or 60 days. A perusal of sections 10 and 15 will show that although the Ordinance provides for payment of rent on the 10th of the month next following the month for which it is due, it is subject to agreement; if the agreement between the parties is otherwise this date will be changed. In case where the tenancy month ends with the calendar month rent must be paid by 10th of the next month provided there is no,agreement to the contrary. In spite of these provisions section 15 has fixed another period for the purposes of calculating default. It contemplates two situations one where by agreement a date for payment has been fixed and the other where there exists an agreement of tenancy but no date for payment of rent has been fixed. In the first case the tenant will be required to pay within 15 days from the date fixed by mutual agreement between the parties; whereas in the second case a grace period of 60 days has been allowed." In view of the above, there can be no cavil with the proposition that where the date for payment of rent is not fixed by mutual agreement between the landlord and tenant, the rent will be due on the 10th of the month next following the month for which it is due and Section 15(2)(ii) of the Ordinance will attract an order of eviction if the rent is not paid within 60 days of the aforesaid date. It is not necessary, in view of. the what follows, to dilate any further on the aforesaid proposition. The learned counsel for the respondent submitted that under the agreement executed between the parties, the rent was payable in advance. He further pointed out that under the agreement it was understood between the parties that the rent will be paid in advance on the first of the month. He referred to the rent application filed by the respondent wherein it is A ~ rspecifically pleaded that, "The opponent is a tenant in respect of. ...................................... on monthly rent at the rate of Rs. 300/- per month payable in advance on the first of each month regularly." The above averment in the application was not denied by the appellant in his written statement and therefore it is to be deemed to have been admitted. The respondent has reiterated the above statement with regard to payment of rent in advance on the first of each month in his affidavit-in-evidence. Such statement was not challenged in the crossexamination. The appellant in his affidavit-in-evidence also did not rebut the " above averment. The impugned order does not disclose that any submission was made with regard to absence of the date fixed for payment of rent. The learned Rent Controller had therefore proceeded on the assumption and rightly so that rent was payable in advance on the first of the month and had found that the appellant had failed to pay rent in respect of the demised premises within 15 days after the expiry of the period fixed by mutual agreement between the parties for payment of rent and accordingly ordered his eviction. In view of the aforesaid admitted position that .the rent was payable in advance on the first of the month, the first three authorities relied upon by the counsel for the appellant are not applicable to the facts and circumstances of this case, as no date was fixed for payment of the rent by the respective tenants in the said cases. However the learned counsel for the appellant contended that the words used in the agreement for payment of rent in advance were against the provisions of the Ordinance. In support of such submission, he stated that the word 'advance' has no legal value as according to Section 10 of the Oridnance, what is important -is the date when the rent becomes due. The submission is without any substance. Rent becomes payable in terms of the mutual agreement between the parties when there is such agreement, otherwise the rent becomes payable on 10th of the month next following the month for which it is due. In the instant case, there was an agreement for payment of rent in advance. It was specifically pleaded that rent was payable in advance on the first of the month. Such averment, as already stated above, was not disputed either in the written statement or in the evidence by the appellant. Accordingly the rent having not paid within 15 days of the expiry of the period prescribed by the mutual agreement, the appellant had incurred the liability of eviction under Section 15 of the Ordinance. Before parting with the judgment, it may be pointed out that the learned Rent Controller had misread Exhibits 0/3 and O/4; O/4, as already stated above, being the original receipt. The learned Rent Controller has taken the said receipt to be towards payment of rent for the month of February 1983. The said receipt was issued by the respondent for the month of January 1983 on 14.2.1983. Thus the appellant had committed default in payment of rent for the months of February, March and April. The rent of the aforesaid three months was deposited by the appellant in Misc. Rent Case on 17.4.1983 i.e. after expiry of 15 days fixed for payment of the rent. In view of the above, no exception can be taken to the finding of the learned Rent Controller on the issue of default in payment of rent by the appellant. The appeal is, therefore, dismissed with costs. By consent, the appellant is allowed sixty days time for delivery of vacant possession of the demised shop to the respondent. Appeal dismissed.

PLJ 1996 Karachi 410 PLJ 1996 Karachi 410 Present: ABDUL MAJID KHANZADA, J. MUHAMMAD UMER-Petitioner versus AZAD MUHAMMAD-Respodnent F.R.A. No. Ill of 1994 heard on 4-12-1995. Sindh Rented Premises Ordinance, 1979-- —-S. 14(4)-Tenant handed over Possession of property to landlord for reconstruction-Restoration of same dimension & location-­ Determination of—Appliction to—Dismissal of—Challenge to—It will be just and proper, if Rent Controller determines location and dimension of shop taken from appellant-Held : Courts are established to solve problems of public and not to create problems for them. [P. 412] A. Mubarak Ahmad, Advocate for Appellant. Judgment This appeal is directed against the order dated 16-1-1994 passed by Vth Sr. Civil Judge and Rent Controller Karachi (South) in Rent Case No. 1096/85 (Old No. 6482/80) rejecting the prayer of the appellant/tenant, for determining the location of the rented shop handed over by him to the Respondent/landlord under compromise in FRA. No. 283/89 before restoration of the possession of the same to him in execution of Writ of Possession. Briefly stated the facts which lead to this appeal are as under :- 1. The appellant was tenant of the respondent in shop No. 1, Azad Green House, House No. 21-A, Mehmoodabad, Karachi at a monthly rent of Rs. 100/- P.M. The respondent filed above Rent Case against the appellant on the ground of demolition of the old construction and raising newconstruction in its place. The Rent Controller vide its Order dated 1.3.1989 ordered the ejectment of the appellant against which he filed FRA No. 283 of 1989, which ended into compromise on the following terms :- (a) That the appellant shall pay rent at the rate of Rs. 700 P.M. from 1.2.1992. . (b) That the respondent intends to raise multi-storied building on the premises and for this purpose the appellant shall be called upon as and when the plan is approved by the relevant authorities, to vacate the shop temporarily for construction purposes. (c) That the appellant shall vacate the shop within 30 days from the date of notice and shall handover temporary possession to the respondent for construction purposes. (d) That the respondent shall handover the constructed shop of same dimension back to the appellant within the period of 6 to 8 months from the date of handing over possession to the respondent. In case the respondent fails to re-deliver the possession to the appellant within the period mentioned above the respondent shall pay damages at the rate of Rs. 500/- P.M. to the appellant, till the possession is restored to the appellant. (e) That during the period the possession of the shop remains with the respondent for construction purposes, the appellant shall not be liable to pay the monthly rent. (f) That in case the respondent fail to deliver the possession back to the appellant within one and half year of the vacation by the appellant, the appellant may apply to the Court for restoration of its possession and the respondent shall also be liable to pay damages. 2. That the appellant vacated the shop and put the respondent in vacant possessions of the same, who raised multi storyed building but he failed to restore the possession of the shop of the same dimension, to the appellant, as such the appellant moved application for restoration of the possession of the shop on 1.2.1993 upon which the Rent Controller issued Writ of possession, against which the respondent filed FRA. No. 260 of 1993 in High Court of Sindh, in which Mr. Umer Farooq Khan Advocate was appointed Arbitrator, who submitted his report and vide Order dated 14.9.1993 passed by this Court dismissed the said appeal. 3. That thereafter on 2.10.1993 the appellant made application u/s. 151 CPC for determining the actual location of Shop No. 1 in the trial Court which resulted in dismissal, the appellant against made application u/s. 22 of Sindh Rented Premises Ordinance, 1979 on 27.11.1993 for recalling the Order dated 14.11.1993 but the same was also dismissed on 27.11.1993. Hence this appeal. 4. I have heard Mr. Mubarak Ahmed Advocate for the appellant, and none for the respondent, who chooses to remain absent, though served. 5. The main contention of Mr. Mubarak Ahmed Advocate is that as per compromise in FRA. No. 283 of 1989, the appellant is entitled to the restoration of shop of the same dimention and location which existed before its new construction, for which the determination of its location and dimension is very necessary as the respondent has refused to deliver the same. The learned Rent Controller has wrongly rejected the said prayer of the appellant, on the simple ground that since the Honourable High Court in its Order dated 14.9.1993 passed in FRA. No. 260/93 has not given such direction, he can not do so. 6. I have applied my mind to the novel circumstances of the case. In this case the landlord obtained the possession of the shop from the tenant/appellant on the plea of re-construction and with the clear undertaking to put the appellant back in possession of the shop after its re­ construction but the record shows that the respondent has backed out from the above compromise and does not want to put the appellant in possession of the shop of the same dismension and location, which act of the respondent/landlord can not be appreciated under any circumstances. It is pertinent to note that the appellant, under law is entitled to immediate restoration of the possession of the shop as provided u/s. 15-A of Sindh Rented Premises Ordinance, 1979. The record also reveals that the respondent instead of putting the appellant in possession of the shop of the same location and dimension, wants to give another space which is not acceptable to the appellant. In my view he is very right in doing so. It also transpired, from the record that the Respondent/landlord has constructed four shops on the road side though in the approved plan there were only three shops on that side. 7. For putting the appellant in possession of the shop of the same location and dimension, it will be just and proper, if the Rent Controller determines the location and dimension of the shop which was taken from the appellant by the respondent for the purpose of reconstruction of the multi storyed building; and without determining the same the appellant can not be put in possession of the same, in execution of the Writ of Possession. The Rent Controller while passing the impugned orders has failed to consider that the Courts are established to solve the problems of the public and not to create problems for them. In order to give full effect to the compromise between the parties, it was necessary and essential to grant the prayer of the appellant made in the application for determining the dimension and location of his shop. 8. In view of the above circumstances, the appeal is allowed with no order as to costs and the impugned order is set aside and the learned Rent Controller is directed to determine the location and dimension of the shop which was taken by the respondent from him before construction of the building and also to put him in vacant possession of the shop of the same imension and location in the new building. The parties be afforded chance to lead their evidence on the said point. It is also made clear that the appellant shall also be entitled to damages at the rate of Rs. 500/- P.M. till he is put in possession of the shop as agreed in the compromise referred above from the day possession was handover to landlord by tenant. The Rent Controller is further directed that since it is an old matter and the appellant is being deprived of the fruits of the orders of this Court as such special preference be given to it, by proceeding the matter day to day and report compliance to this Court within 2 (Two) months. In view of this judgment, application under section 151 C.P.C. (C.M.A. No. 208/94) in F.R.A. No. 260 of 1993 is also disposed of. MMA Appeal accepted.

PLJ 1996 Karachi 413 PLJ 1996 Karachi 413 Present: abdul hafeez memon, acting chie? justice and nazim hussain siddiqui, J. HABIB BANK LTD.-Petitioner versus MESSRS PAKISTAN INDUSTRIAL PROMOTERS (PVT.) LTD. etc.- Respondents Constitutional Petition No. D-1358 of 1995 dismissed on 30-10-1995. Constitution of Pakistan, 1973- —- Art, 199 read with Art. 29 of Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order No. 1 of 1983-Writ jurisdiction-Invoking of~Jurisdiction of-Question whether validity of any action taken under Order No. 1 of 1983 can be examined-When action is taken under a special statute it must fulfil conditions of that statute in order to gain validity of action-Case has been dealt with within four corners of provisions of order-No jurisdiction in the matter-Petition dismissed. [P. 418] A Usman Ghani Rashid, Advocate for Petitioner Qaidr H. Sayeed, Advocate for Respondents No. 1 S. Tariq Ali, Standing Counsel. judgment Nazim Hussain Siddiqui, J.--The Petitioners have challenged the orders dated 30-10-1991 and 1-9-1994 of the respondents No 2 and 3 respectively. The facts relevant for decision of this Petition are as follows :- 2. The respondents No. 1 M/s. Pakistan Industrial PROMOTERS (Pvt) Limited since 1978 were maintaining account No. 403327/72 with the petitioners Habib Bank at their SITE Branch, Karachi. It is alleged by the respondents No. 1 that an amount of Rs. 34,73,400/- was withdrawn from their said account through bogus cheques, which were issued during the period from 5-1-1989 to 19-1-189. The respondents No. 1 filed a complaint before the respondent No. 2 Wafaqi Mohtasib at Karachi, and claimed the following reliefs: "That the Bank may be directed to explain its position with regard to the gross negligence and carelessness in handling our account and maintaining the record in respect of it and should be ordered to reverse and delete all the bogus entries and all/any mark up/interest and added thereto as a consequence thereof viz. the forged documents in our Account No. 40332779." 3. The respondents Nos. 1 have claimed that the petitioners bank acted in flagrant violation of the norms of banking practice and procedure, in as much as the bank issued cheque book against forged requisition slip dated 3-1-1989. According to the respondents No. 1 these acts of omission and commission on the part of the petitioners by themselves speak about their mis-conduct, mal-administration, lack of vigilance, breach of fiduciary obligations and trust. The respondents No. 1 have claimed that these acts could not be done solely by any outsider and this indeed is a glaring example of "mal-administration" on the part of the petitioners. Further, it is said that without connivance of the staff of the petitioners, the forger of the requisition slip and the cheques could not know about the account number of the respondents No. 1 nor the amount standing in their balance. 4. The Petitioners have admitted that the respondents were maintaining account at their SITE Branch and on the basis of the requisition slip dated 3-1-1989 cheque book containing 100 cheques bearing No. 07353201 to 07353300, was issued and from that cheque book 16 bearer cheques were issued between 5-1-1989 to 19-1-1989 for the total amount of Rs. 34,73,400/- and payment was made by the petitioners. It is the case of the Petitioners that on 6-2-1989 one Abdul Jalil made inquiries about the address of the respondents No. 1 from the staff of the petitioners and this created doubt in the mind of the staff that being holder of bearers cheques of respondents No. 1 he was not aware of their (respondents No. 1) address. Immediately, thereafter, the respondent No. 1 were contacted and said Abdul Jalil was handed over to the F.I.A. and the case was registered. The Petitioners have claimed that the account of respondents No. 1 was properly handled with care and there was no negligence on their part. The Petitioners have also claimed that they have filed C.P. No. 157/1990 before this Court against the Judgment dated 15-8-1989 passed by the Special Court whereby accused Abdul Jalil and Syed Imdad Hussain were acquitted. It is urged that since the aforesaid petition is still pending for decision, the respondents No. 1 cannot insist for deletion of the said entries till said petition is finally decided. 5. The respondent No. 2 in his impugned Order dated 30-10-1991 held that it was an admitted position that forgery was committed. He observed that petition pending before this Court in respect of said forgery, is with regard to the criminal liability of the accused persons involved is said matter. He recommended for reversing all the debit entries made in the account of the respondents No. 1 and remit and mark up/interest as the consequence thereof and also ordered for reporting compliance of his recommendations in his officer by 30th November, 1991. The petitioners made representation, under Article 32 of the Establishment of the Office of Wafaqi Mohtasib(Ombudsman) Order No. 1 of 1983, hereinafter called Order No. 1 of 1983, before the President of Pakistan, who vide order dated 1-9-1994 as communicated by the respondent No. 3, had rejected the same. In this petition, both the aforesaid orders have been impugned by the petitioners. 6. In order to appreciate the points involved in this petition, it would be useful to reproduce the definitions of the words 'agency' and 'mal­administration' and also Articles 9 and 29 of the Order No. I of 1983 which are as under :- "Agency" means of Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme -Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court; "Maladministration" includes- (i) a decision, process, recommendation, act of omission or commission which-- (a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide and for valid reason ; or (b) is arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or (c) is based on irrelevant grounds; or (d) involves the exercise of powers, on the failure or refusal to do so, for corrupt or improper motive, such as, bribery, jobbery, favourtism, nepotism and, administrative excesses; and ' (ii) neglect, inattention, delay, incompetence inefficiency and inaptitude in the administration or discharge of duties and responsibilities; Article 9. Jurisdiction, functions and powers of the Mohtasib. (1) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officer or employees; Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which - (a) Are sub judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint, reference of motion by him; or (b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or government; or (c) relate to, or are connected with, the defence of Pakistan or any part thereof, the military, naval, and air forces of Pakistan, or the matter covered by the laws relating to those forces. (2) Notwithstanding anything contained in Clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant of functionary concerning any matter relating to the Agency in which he is, or has, working in respect of any personal grievance relating to hi service thereon. (3) For carrying out the objectives of this Order, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted as may recommend appropriate steps for their eradication. (4) The Mohtasib may set up regional office as, when and where required.Article ,29. Bar of Jurisdiction. No Court or other authority shall have jurisdiction-- (1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order ; or (2) to grant an injunction or stay or to order in relation to any proceedings before, or anything don or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib." Mr. Usman Ghani Rashid learned counsel for the petitioners strenuously argued that this case is not covered by the provisions of Article 9 of the Presidential Order I of 1983 and by no stretch of imagination the dispute could be taken to within the ambit of maladministration as defined in the said Order. He also submitted that the jurisdiction of respondent No. 2 does not extend to all the disputes emanating from civil liabilities. Learned counsel also contended that it is just possible that mischief may have been done by the respondents No. 1 through absconding accused Ch. Saleem. 8. As against above, Mr. Qadir H. Sayeed learned counsel for respondents No. 1 submitted that the petitioners, before the respondent No. 2, while admitting the factum of fraud, had only taken two pleas namely, that alleged forged bearer cheques, prima facie, appeared to "naked eye as proper" and secondly, the petitioners have filed the Constitution Petition No. 157/1990 before this Court, which is till pending for decision. He also argued that it has never been the case of the Petitioners before the Special Court (Offences in Banks) at Karachi, and respondent No. 2 Wafaqi Mohtasib that absconding accused Ch. Saleem had any link whatsoever with the respondents No. 1. Learned counsel also submitted that, albeit, the alleged fraud was committed in the year 1989 and inspite of the fact that a period of about seven years had passed, but the petitioners never directly or indirectly implicated the respondents No. 1 , nor any kind of legal proceedings were taken against them. The counsel concluded that this by itself indicates that the petitioners were fully convinced that said fraud was committed by their staff and the respondents No. 1 were neither responsible for it nor they knew about the person or the person, who had committed said fraud. 9. We have thoroughly examined the respective contentions of the parties and are of the view that the petitioner are squarely responsible for the maladministration as defined in the Order I of 1983. The object of Order No. I of 1983 is to diagnose, investigate, redress, and rectify any injustice done to a person, through maladministration. It is not disputed, nor it could be disputed that the petitioner are agency, as defined in the said order. It being so, that respondent No. 2 had the jurisdiction in the matter arising from maladministration of the Petitioners, it is an admitted fact that an amount of Rs. 34,73,400/- was illegally withdrawn from the account of respondents No. 1, through forged bearer cheques, which were obtained on the basis of fake/bogus requisition slip. Learned Special Court referred to earlier in its judgment held that the signatures on the 16 bearer cheques and requisition slip were dis-similar to the signatures of Mr. Muhammad Rashid Siddique and Mr. Shafiq Ahmad Khan, the two directors of respondents No. 1. It is also evident from said judgment that the signatures of above named two persons were forged. Forgery was established by the evidence brought on record, including the testimony of Mr. Zafar Mahmood Hand-Writing Expert. Further, it is clear from said judgment that forged requisition slip was printed on a much thinner paper and also the stamp of the petitioners bank bearing the words "SITE BRANCH" was apparently different. We are not making any comments on the said judgment of the Special Court, as the matter is still pending for decision, but have referred to the above facts only to demonstrate that the official acts and common course of business dealing in said Branch were not properly performed. Since the petitioners have admitted that the fraud was done, and by said fraud the amount in question was withdrawn, and they have not directly or indirectly implicated the respondents No. 1 for said fraud, ex-facie, the conclusion would be that the petitioners are responsible for maladministration, mal-adjustment, and mal­feasance by their acts of omission as well as commission, as they failed to perform their duties and obligations, as were assigned to them. The plea that the forged bearer cheques appeared to "naked eyes in order" would not absolve them from their liability arising from their inexplicable negligence. Likewise, the plea that the matter being subjudice before this Court in C.P. No. 157/1990, the respondent No. 2 had no jurisdiction to investigate or inquire into the matter is without any substance. In said petition primarily the question under consideration is :to examine the extent of criminal liability of the accused persons, who were tried and acquitted by the learned Special Judge and it has nothing to do with the civil liability incurred by the petitioners due to their maladministration. 10. Another point to be considered with reference to the facts of this case is whether in writ jurisdiction, this Court can examine the question of validity of any action taken under the Order No. 1 of 1983. Article 29 of the Order bars the jurisdiction of Court or any other authority in respect of any action taken under the provisions of the Order No. 1 of 1983. It is significant to note that in the proceedings before the respondent No. 2 the petitioners had never raised any objection about the jurisdiction of the respondent No. 2. On the contrary, they contested the matter and placed their case before him who gave his findings having taking into consideration all the pleas raised on their behalf. 11. In case where the matter falls within the jurisdiction of respondent No. 2 and is resolved by invoking the provision of the Order I of 1983, no Court would have jurisdiction to disturb such findings. When action is taken under a special statute it must fulfil the conditions of the statutes in order to gain validity of the action so taken. The instant case has be n dealt within the four corners of provisions of the Order No. I of 1983, as such this Court, under Article 199 of the Constitution, has no jurisdiction in the matter. 12. Mr. Qaidr H. Sayeed learned counsel for respondents No. 1 cited the case of Almas Khanum vs. The Federation of Pakistan and others 1994 MLD 6 to contend that High Court would not ordinarily enter into examination of finding of facts arrived at by a forum to review it or to substitute the same with another possible view. This case was also under order I of 1983. In the instant case, the factual findings of respondent No. 2 have been confirmed by the President of Pakistan on representation made in him under Article 32 of the Order No. I of 1983. It is significant to note that as per Article 37, the provisions of Order No. I of 1983 overside the other laws. It being so, recourse to general law for nullifying the provisions of this order is not permissible. 13. In consequence, we hold that this Petition is not maintainable and is dismissed accordingly. Petition dismissed.

PLJ 1996 Karachi 419 PLJ 1996 Karachi 419 Present : ABDUL MAJEED KHANZADA, J. SIKANDAR ALI and others-Appellants versus MUHAMMAD AKHTAR and others-Respondents F.R.A. No. 35 of 1994 allowed on 18-9-1995 Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15-Ejectment~Appellants have got clear and valid title over disputed property-Relationship of landlord and tenant exists between parties— Since, respondents admittedly did not pay any rent, even after service of notice, default stands proved-Held : Respondents are not entitled to any concession or right to prove justification of their default in payment of rent-Appeal allowed with direction to respondents to put appellants in vacant possession within 4 (four) months. [P. 425] A Mr. SikandarAli Alvi, Advocate for Appellants. Mr. Kanaya Lai P. Nagdev, Advocate for Respondents. Date of hearing: 18-9-1995. judgment This appeal is directed from the order dated 22.12.1990 passed by the Ilnd Senior Civil Judge & Rent Controller, Larkana dismissing the ejectment application viz: R.A. No. 1/90, filed by the appellants against the respondents under section 15 of the Sind Rented Premises Ordinance, 1979, on the ground of default in payment of monthly rent. 2. Briefly stated, the facts which lead to this appeal are that late Ranjho Khan, the father of the appellants was transferee of property bearing C.S. Nos. 351 and 352, Ward "A" Shahdadkot from Settlement Department vide P.T.D. Nos. 7468 and 7467 dated 27.9.1969 respectively in which late Muhammad Akbar, the father of the respondents was in use occupation as tenant at the time of purchase of the said properly. In June, 1986 Ranjho Khan died leaving behind the appellants as his L.Rs, who inherited the same in dispute. On 24.9.1989, the appellants served notice upon Muhammad Akbar demanding rent from him at the rate of Us. 500/- P.M. who replied it, denying the title and relationship of landlord and tenant between the parties. On 30.1.1990 the appellants named above filed ejectment proceedings viz: R.A. No. 1/90 against Muhammad Akbar who died during the pendency of the said proceedings as such his L.Rs., the respondents named above were made party and an amended Rent Application was filed. The ejectment is sought only on the ground of default in payment of monthly rent since last more than 3 (three) years. 3. The respondents named above in denial of the claim of the appellants filed their written objections stating therein that there exists no relationship of landlord and tenant between the parties. They asserted that neither their father ever paid any rent to the father of the appellants or to the appellants nor they paid the same to any of them. They further stated that late Muhammad Akbar was not the tenant but he was in possession of the disputed premises since last 30 years, and after his death they are in possession of the same as its owner. They admitted the service of notice and the reply to it by, their late father. They also stated that late Muhammad Akbar used to pay the property tax, betterment tax and the professional tax and after him they are paying and that they electrified the premises to the knowledge of late Ranjho Khan. They further stated that the disputed premises were neither rented out by Ranjho Khan to Muhammad Akbar nor there was any rent agreement. In the end, they asserted that late Muhammad Akbar acquired the title over the disputed premises by way of prescription. 4. In support of the case the landlords examined their Attorney Haq Nawaz who filed his affidavit-in-evidence (Ex. 30) who produced original General Power of Attorney (Ex. 31), certified copies of C.S. Extracts showing entry made in the record in the name of late Ranjho Khan on the basis of the P.T.Ds. issued by the Settlement Department in respect of C.S. Nos. 351 & 352, Ward "A", Shahdadkot (Exs. 32 & 33 respectively), certified copies of C.S. Extract in the name of the appellants (Ex. 34 & 35 respectively), copy of notice dated 24.4.1989 alongwith Postal & A/D receipts at Ex. 36 to 38). While the respondent Muhammad Akhtar filed his affidavit-in-evidence (Ex. 40), Challans showing deposit of properly tax by Muhammad Akbar at Ex 41 to 43, electricity bills (Ex. 44), copy of reply dated 20.5.1989 as Ex. 45. He has also filed an affidavit-in-evidence of his witness Moinuddin (Ex. 46). 5. That the learned Rent Controller framed the following issues for determination; but under point No. (1) he reached to the conclusion that there exists no relationship between the parties, as such he dismissed the application, hence the instant appeal is filed :-- "1. Whether there exists relationship of landlord and tenant between the parties ? 2. Whether opponents have committed wilful default in payment of rent of disputed premises since June, 1986 upto the filing of this Rent Application i.e. 30.1.1990 ? 3. What should the order be ?" 6. I have heard the learned counsel for the parties. Mr. Sikandar Ali AM, the learned counsel appearing for the appellants has submitted that the title of the present appellants is perfect and there can hardly be said, that any doubt exists. He has referred the entry made in the City Survey Record (Ex. 32 & 33) which shows that the said entries are made in the name of late Ranjho Khan on 30.12.1969 on the basis of the P.T.Ds. issued by the Settlement Department bearing Nos. 7467 and 7468 dated 27.9.1969. He also referred the City Survey Extracts at Ex. 34 & 35 showing the entry made in the name of the appellants after the death of their father. He also referred a notice dated 24.4.1989 (Ex. 37) sent on behalf of the appellants to the predecessor/father of the respondent and the service of which is not denied. He contended that the tenancy is either contractual or the statutory. In the instant case admittedly there was no rent agreement between the parties as such the tenancy was statutory. The property in dispute originally belonged to Evacuee owner and after the same was acquired by the Federal Government, the same was transferred in favour of late Ranjho Khan, as such the tenancy stands created in between transferee and the occupant late Muhammad Akbar, the predecessor of the respondents. After the death of Ranjho Khan, the transferee, the property devolved upon his L.Rs., who served the occupant Muhammad Akbar with notice, to which, though he denied the ownership/title of the transferee over the disputed property and also the relationship of landlord and tenant. He submitted that the learned Rent Controller has misdirected himself in deciding the issue of relationship of landlord and tenant, and has overlooked the overwhelming evidence brought on record. In support of his contentions he has relied upon the cases reported in (1) 1991 C.L.C. Note 183, (2) 1983 C.L.C. 398, (3) 1985 C.L.C. 999, (4) 1982 S.C.M.R. 207, (5) 1984 C.L.C. 3227, (6) N.L.R. 1984 Civil 227, and (7) 1987 C.L.C. 1736. In case shown at S. No. (1), it is held : "Respondent in strength of P.T.D. in respect of premises in dispute had undisputedly proved that her deceased husband was transferee of premises in dispute and she being widow, was one of the legal heirs of her deceased husband and as such was entitled to maintain ejectment application-Claim of appellant that her husband was in occupation of premises as an un-authorised occupant, was unbelievable-Rent Controller, held, rightly that applicant was entitled to evict tenant in circumstances." In case shown at S.No. (2), it is held, "Relationship of landlord and tenant-Tenant's denial of- Rent Controller failing to find such relationship for reason that landlord neither served tenant with notice under S. 30 of D.P. (Compensation & Rehabilitation) Act, 1958 nor rebutted tenant's assertion of ownership of property in question-Landlord producing P.T.D. issued iir his favour-Tenant not denying being not in occupation of premises at time of transfer in landlord^ favour-D.P. (Comp: & Rehab:) Act, 1958, having been repealed, tenant not entitled to notice and question of subletting alleged against him can be enquired into even in absence of notice under S. 30-Relationship of landlord and tenant, held, existed." In case shown at S.No. (3), it is held, "Relationship of landlord and tenant-Question as to title of property-Rent Controller exercises a limited jurisdiction and could not go into question/inquire as to title of landlord in presence of P.T.D. issued by Settlement Authorities- P.T.D. having been produced before the Rent Controller in evidence Rent Controller justified in satisfying himself under provisions of S. 13 of Ordinance, 1959, that there existed relationship of landlord and tenant between parties." In case referred at S. No. (4), it is held, "Eviction--Not an iota of evidence existing to show as to what interest or right petitioner had in disputed shop-­Settlement Department on other hand transferrii^ shop to respondent landlord-Respondent a regular transteree of property holding regular P.T.D. in his favour-Respondent shown to have served regular notice on petitioner tenant but petitioner despite receipt of such notice not paying rent-­ Courts below,, held, perfectly justified in directing and maintaining the petitioner's eviction." In case referred at S. No. (5), it is held, "Tenant having raised construction over plots transferred to landlord and using such plots for commercial and residential purpose-Case of tenant, held, fell within perview of S. 30 Displaced Persons (Compensation & Rehabilitation) Act, 1958 and statutory tenancy was created—Ejectment of such tenant could only be secured through forum of Rent Controller under Sind Rented Premises Ordinance, 1979." In the case shown at S. No. (6), it is held, "Occupant of transferred property becomes tenant of transferee by operation of law-Notice contemplated by S. 30 has nothing to do with creation of landlord and tenant relationship." In case shown at S. No. (7), it is held, "Ejectment of tenant-Tenant denying relationship of landlord and tenant-Landlord, a transferee of premises serving notice on tenant under S. 30 of Act XXVIII of 1958 Premises having been transferred to respondent who had served notice on tenant as per requirement of law, statutory relationship of landlord and tenant, held, came into being between parties-Claim of rent as demanded by landlord under S. 30 of Act XXVIII of 1958, even if excessive would not absolve tenant from paying or tendering same which was legally due to such landlord." 7. Mr. Sikandar Ali AM also contended that admittedly the respondents have neither paid nor tendered any rent of the disputed premises, to the appellants, in spite of service of notice dated 24.4.1989, as such the non-payment of rent is admitted and therefore they are guilty of committing wilful default in payment of monthly rent, hence they are liable to be ejected from the said premises. In support of his contention, he has relied upon the cases reported in (1) 1982 S.C.M.R. 207, (2) 1987 C.L.C. 1736, (3) 1991 C.L.C. Note 97, and (4) P.L.J. 1984 Karachi 237. 8. Mr. Kanaya Lai Advocate appearing for the respondents in reply to the contentions of the learned advocate for the appellants argued that the Rent Controller has rightly and justly passed the impugned order and it does not suffer from any legal defect. He contended that since notice under S. 30 of Act XXVIII of 1958 was not served upon the occupant of the premises in dispute and that the occupant never paid or tendered any rent to the transferee and that there is no rent agreement, and that the occupant was using the premises in his own rights and that he always paid property tax, betterment tax and professional tax of the property as such he became the owner of the same and after his death the present respondents a« Ms L.Rs. stepped into the shoes of their predecessor, as such the«> exists no relationship of landlord and tenant in between the parties, hence the ejectment application filed against them was not maintainable in law. In support of his contention, Mr. Kanayalal relied upon the following cases reported in :-- 1. P.L.D. 1985 Karachi 741 2. 1987 C.L.C. 1134 3. 1990 C.L.C. 1529 4. 1988 S.C.M.R. 679. The case shown at S. No. 1 is not at all applicable as it was not the case of statutory tenancy between the transferee of the evacuee property under P.T.D. by the Settlement Department and the occupant of the same. The case shown at S. No. 2 is also of no relevance as the same is in respect of claim of both the parties as transferees of the disputed property and in the instant case the respondents/occupants are not the transferees of the disputed property but they claim that they are in its possession since last 30 years. In case shown at S. No. 3 both the parties claimed ownership without any documentary proof, but in the instant case the appellants have got valid and substantial title over the disputed property, hence this authority is also of no help to the respondents. The last case shown at S. No. 4 is also not applicable in the circumstances of the instant case, because in the said case here was claim of a contractual tenancy and not of a statutory tenancy created hy operation of law. 9. I have applied my mind to the valuable arguments and the case law cited above by the learned counsel for the parties and have gone through the record with their assistance. From the above discussion, it is clear that late Ranjho Khan the father/predecessor of the appellants was transferred the disputed property by the Settlement Department under P.T.D.s issued in his favour and late Muhammad Akbar the predecessor of the respondents was in occupation of the said disputed properly. Nothing has been brought on record to show that in what capacity said late Muhammad Akbar was occupying the disputed premises, which were admittedly the evacuee property. Since the father of the respondents was in occupation of the disputed property which stands transferred to late Ranjho Khan, he became statutory tenant in the premises. No doubt, it is not established that Ranjho Khan ever served notice under S. 30 of Act XXVIII of 1958 upon Muhammad Akbar but it will not affect the right of the L.Rs. of the transferee to maintain ejectment proceedings against the occupants of the disputed property, as they served Muhammad Akbar with notice which was admittedly replied by him and the rent was neither paid nor tendered. After the repeal of Act XXVIII of 1958 notice under S. 30 was no more required. 10. In view of the case law cited by the learned advocate for the appellants and the circumstances of the case, I am of the view that the appellants have got clear and valid title over the disputed properly in possession of the respondents; and by operation of law the occupant late Muhammad Akbar and after his death his L.Rs., the respondents became the tenant in the premises, as such there existed relationship of landlord and tenant in between the parties and since the respondents admittedly did not pay or tender any rent at any rate and for any period, after service of notice on their predecessor from the side of appellants, the default stands proved. Since the respondents have denied the title of the appellants, they are not entitled to any concession or right to prove the justification of their default in payment of rent. Hence I have no other option but to set aside the order of the Rent Controller dismissing the ejectment application, and allow the appeal with no order as to costs. The respondents are directed to put the appellants in vacant possession of the premises in question within 4 (four) months from the date of this order, failing wherein the Rent ontroller shall issue direct writ of possession without prior notice to the respondents. (MYFK) Appeal allowed.

PLJ 1996 Karachi 426 PLJ 1996 Karachi 426 Present: RANA BHAGWANDAS, J. ABDUL RASHID and another-Appellant versus MUHAMMAD SHAUKAT HUSSAIN and others-Respondents F.R.A. No. 40 of 1994 dismissed on 2-4-1995. (i) Evacuee Trust Property Board-- —Under Act XIII of 1975, Board shall be a body corporate having perpetual succession and common seal with power to acquire, hold and dispose of property and to contract, and shall by said name sue and be sued-Held : Appellant No. 2 being a functionary employed in connection with affairs of Board, of his own has no legal entity in eyes of law to act and appear on behalf of Board unless expressly and specifically authorised by Board. [P. 431] F (ii) Rent Controller- —Rent Controller-Jurisdiction of-It is well settled that Rent Controller is not a Court much less a Civil Court-He is a creation of rent laws which only empower him to regulate relationship between landlord and tenant without entering into intricate questions of ownership and title to properties—Once a person is able to show that he is owner or landlord of urban property and entitled to recover rent, Rent Controller assumes jurisdiction in the matter. [P. 430] B (iii) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 21-Appeal against eviction-Appellants utterly failed to establish that demised premises were declared and notified to be evacuee trust property, there is hardly any merit in contention that respondents had no title to property or that Rent Controller had no jurisdiction to proceed with ejectment application-It is admitted that appellant No. 1 at no point of time paid any amount of rent to respondents and thereby he committed a wilful default-Requirement of premises for use of respondents was bonafides and in good faith-Held : Non payment of rent at all and lack of evidence in rebuttal renders case of appellant No. 1 hopeless and without any plausible defence-Appeal dismissed. [Pp. 429,430, 431] A, C, D, E & G Mr. Hadi Bux Soomro, Advocate for Appellants. Mr. Ghulam Sarwar Abbasi, Advocate for Respondents. Date of hearing: 2-4-1995. judgment This appeal u/s 21 of the Sindh Rented Premises Ordinance 1979 (hereinafter referred as the Ordinance), is directed against an order of eviction dated 6.10.1991 passed by learned First Rent Controller Larkana directing ejectment of appellant No. 1 from two shops situated on C.S No. 1507/2-E and 1507/2F Ward-C Larkana on the ground of default in payment of rent and bonafide personal requirement of the premises for use and occupation of the respondents. Property under dispute was transferred to Muhammad Shaukat Hussain (since dead) in public auction by the Settlement authorities when a P.T.O was issued in his favour on 28.4.1961. It was followed by issuance of a P.T.D dated 4.11.1970. Since appellant No. 1 was occupying the demised premises prior to the transfer of premises in favour of deceased respondent, he served him with statutory notice u/s 30 of the Displaced Persons (Compensation and Rehabilitation) Act 1958 calling upon him to pay rent to him with effect from the date of transfer. As the said appellant failed to respond to the demand of the land lord, he filed eviction application on 25.4.1972 against him on the ground of default in payment of rent with effect from the date of transfer and on the ground of personal requirement of the premises for bonafide use and occupation of the land lord. Eviction application was initially filed against Sarbuland Khan who was the recorded tenant of the premises. He filed a written statement challenging the transfer of property in favour of the landlord and denied the rate of rent. He denied the receipt of notice and the grounds for his eviction. Alternatively he pleaded that even if the landlord had issued any notice to him, it was illegal as rent demanded from him was at a rate which was not due. In view of the denial of service of statutory notice, learned Rent Controller framed a preliminary issue on this point and by order dated 23.5.1978 held that notice was duly served on the tenant. This order was impugned in Civil Misc. Appeal No. 42/1979 which was dismissed vide order dated 9.12.1980 by an Additional District Judge Larkana. Thereafter both the parties filed their affidavits in evidence in support of their respective contentions. While the witness appearing for the respondents was subjected to cross examination neither Sarbuland Khan nor his witness Samad Khan appeared in the witness box for the purpose of cross examination with the result that their evidence could not be considered in the eyes of law. On assessment of evidence learned Controller by order dated 27.11.1983 held that rent of the shop on C.S. No. 1507/2E was Rs. 40/- per month whereas the rent for second shop was Rs. 30/- per month. He answered issues relating to default and personal requirement of the premises in favour of the landlord. On the point of jurisdiction, he concluded that since the tenent was duly served with statutory notice, he had the jurisdiction to proceed with the ejectment application. This order again was impugned in F.R.A. No. 102/1983 before the Sukkur Bench of this Court which was decided by Saeed-uz-Zaman Siddiqui, J. (as his Lordship then was). It seems that during the pendency of F.R.A., appellant filed an application for further enquiry alongwith true copy of an order dated 20.2.1985 passed by the Chairman, Evacuee Trust Property Board cancelling the transfer in favour of the Landlord on the ground that the demised premises were evacuee trust property. In the circumstances, ejectment order was set aside and the case was remanded to the Controller vide Judgment dated 8.10.1985 with a direction to give opportunity to both the parties to lead evidence on the issue "whether the respondent still had subsisting title in the property ?" During the pendency of F.R.A it seems that original tenant Surbuland Khan died and was survived by appellant Abdul Rashid and three brothers namely Abdul Samad, Aji-Azrat and Abdul Rahim who were substituted in his place. After the remand of the case sometimes in 1988 appellant No. 2 was joined as party on the application of appellant No. 1. Parties adduced evidence in support of their respective contentions. On assessment of their evidence, learned Controller by the order, impugned in this appeal held that respondent landlord still has a subsisting right in the property. He decided issues relating to default in payment of rent and requirement of the premises for personal bonaflde use of the respondents in their favour and ordered ejectment of appellant No. 1. It is as against this order that the present appeal was filed. Learned Counsel appearing for the appellants mainly contended that the demised premises were declared as evacuee trust property as such these could not have formed part of the evacuee pool and therefore could not be validly transferred in favour of any person by the Settlement authorities. It may be pointed out that the order dated 20.2.1985 passed by the Chairman, Evacuee Trust Property Board was challenged before the Federal Government in revision which was set-aside by the Federal Government and the case was remanded to the Chairman, Evacuee Trust Property Board for a fresh decision before whom it is still pending, as stated by learned counsel for the appellants. Learned Counsel took pains to persuade this court to accept the contention that the demised premises being evacuee trust property, learned Controller acted without jurisdiction in the matter because appellant No. 1 happened to be the tenant of appellant No. 2 and liable to pay rent to them. From the evidence on record it would appear that appellants miserably failed to establish this plea of fact to the effect that the properties were in fact declared as evacuee trust property or vested in the Evacuee Trust Property Board constituted under Evacuee Trust Properties (Management and Disposal) Act 1975. Learned counsel referred me to two photo copies of extracts from the Property Card in respect of the demised premises filed alongwith the memo of appeal. It is pertinent to note that these documents were not produced before the Learned Controller who was seized of the matter and directed to adjudicate upon the plea raised on behalf of the appellants that the respondents had no more a subsisting right and title to the property. While photo copies of these cards cannot be legally considered in this appeal as no leave was sought to produce the additional evidence at the stage of appeal, sole point raised and seriously agitated by Mr. Soomro is that in Column No. 3 of these extracts there appears a name Singh Parchark Sabha but against their entry a line appears to have been drawn. In last column of both the extracts, name of Muhammad Shaukat Hussain s/o Ikram Hussain as lessee has been recorded by transfer vide P.T.D. No. 7913 dated 4.11.1970 and order of City Survey Officer dated 13.11.1970. It may be pertinent to observe here that after the remand of case by the High Court, respondents alongwith their evidence had produced certified copies of the extracts from Property Card showing their predecessor-in-interest Muhammad Shaukat Hussain to be the owner of the premises without mentioning the name of Singh Parchark Sabha. Since the appellants utterly failed to establish that the demised premises were declared and notified to be the evacuee trust property as defined in Act XIII of 1975, there is hardly any merit in the contention raised at this stage that the respondents had no title to the property or that the learned Controller had no jurisdiction to proceed further with the ejectment application. In this connection learned counsel has referred to the Judgments in the case of Rauf Ahmad v. Secretary to the Government of Pakistan and others. (PLD 1991 Lahore 33), Muhammad Jamil Asghar v. Improvement Trust Rawalpindi (PLD 1965 Supreme Court 698), Ghulam Hussain v. Abdul Rehman and two others (P.L.D. 1982 Lahore-519), Devachand Muljimal v. Deputy Settlement and Rehabilitation Commissioner and others (P.L.D. ,1965 Supreme Court-356), M/s Friends Cloth Store and another v. Sayeda Amtual Aziz (P.L.D. 1971 Karachi - 739), Sahibzada Sayyed Muhammad Mateen Mirza v. Jehangir Rustomji (1971 S.C.M.R. 575), M/s Shafique Hanif Limited v. B.C.C.I (Overseas Limited P.L.D. 1993 Karachi 107) and Miss Shah Begum v. AshrafAli Naz (P.L.D. 1993 Karachi 151). All these judgments deal with the question of property attached to a religious or charitable trust, jurisdiction of a court and the powers of Evacuee Trust Property Board in respect of such properties. Since I have held above that the appellants miserably failed to establish that the properties were declared as such these judgments are hardly relevant and of no assistance to them. There is another aspect of the case namely limited jurisdiction of the Controller under the rent laws. It is well settled that the Rent Controller is not a court much less a Civil Court. He is a creation of the rent laws which only empower him to regulate relationship between Landlord and a tenant without entering into intricate questions of ownership and title to properties. He is not authorised to decide a dispute as to title between the parties and the status thereof. Once a person is able to show that he is for the time being owner or landlord of the urban property and entitled to recover rent, Rent Controller assumes jurisdiction in the matter. In the event of a dispute as to title between the parties, Controller is under obligation to refer the parties to have the title cleared from a competent court of law. In the instant case it is admitted position that respondent's predecessor was transferred the demised premises by the Settlement Authorities and issued a P.T.O followed by a P.T.D. No doubt at one stage transfer in his favour was cancelled but the said order was set-aside with the natural consequence that his title stood revived and restored. It was therefore, rightly held by the Controller that the respondents had a subsisting right and title to property. Learned Counsel for the respondents referred to the case of Ghulam Hussain v. Shaukat Ali and others (1985 C.L.C 1997) in which the view taken was that the jurisdiction of the Rent Controller is limited and he has to exercise power within the frame work of rent laws. Question whether the Rent Controller could entertain and adjudicate the pleas relating to the ownership rights should better be decided by the Civil Court of competent jurisdiction because such controvercies of questions regarding title to property fall beyond the purview of rent laws. In the case reported as Ibrahim v. Muhammad Siddique (1986 C.l.C. 2037), it was held that mere agitation by the tenant before the settlement authorities challenging the order of transfer of premises would not absolve tenant from liability of paying rent to landlord deriving title of ownership under P.T.O and P.T.D. It was further held that failure of tenant to pay rent to such landlord would amount to wilful default in payment of rent. In the present case it is admitted that appellant No. 1 at no point of time paid or tendered any amount of rent to the respondents and thereby he committed a wilfull default. Even after decision relating to due service of statutory notice on him, he did not care to recognise the respondents as his landlords and in the F.R.A. raised a frivolous plea that transfer in favour of the respondents had been cancelled. He had chosen to introduce additional pleas in his written statement after remand of the case in his amended written statement without the leave of the Controller which could not be legally considered. His conduct clearly demonstrates refusal to recognize and admit the respondents as his landlords which must entail a finding of wilfull default on his part. Payment of rent by him to appellant No. 2 if any would not absolve him of his statutory liability to pay rent to the actual landlord. Assuming for th sake of argument that the landlord had demanded rent at a higher rate, it was obligatory on him to pay rent at the rate which he was paying before the transfer of the property by the Settlement authorities. Non payment of rent at all on his part and lack of evidence in rebuttal, renders his case hopeless and without any plausible defence. On the issue relating to personal requirement, learned Controller has recorded a finding of fact that jthe requirement of the premises for the use of respondents was bonafide and in good faith. Appellant No. 1 did not rebut evidence on this issue and demonstrated gross negligence by not controverting the case set up by the respondents. Filing of an affidavit in evidence by his brother Abdul Samad Khan would not tantamount to evidence in the eyes of law unless the deponent subjects himself to cross examination by the opposite party. This having not been done, affidavit-inevidence filed by Abdul Samad Khan looses its importance in law and it is of no evidentiary value. Lastly Mr. Abbasi learned Counsel for the respondents urged that appellant No. 2 had no locus standi to join the proceedings as one of the parties. He referred me to the definition of "Evacuee Trust Property Board" in Act XIII of 1975 under which Board shall be a body corporate by the aforesaid name having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to contract, and shall by the said name sue and be sued. Functions of the Board have been enumerated in Section 4 of the said Act. Appellant No. 2 being a functionary employed in connection with the affairs of the Board, of his own has no legal entity in the eyes of law to act and appear on behalf of the Board unless expressly and specifically authorised by the board. There is absolutely no material on record to indicate that the Board had authorised and directed appellant No.2 to join the proceedings on their behalf or to contest the eviction proceedings between two private citizens. No provision of law has been cited vesting any power or authority on this official to act of his own and to appear in the court proceedings without proper authority of the Board. It would appear that both the appellants in collusion with each other have attempted to thwart the legal proceedings initiated against predecessor in interest of appellant No. 1. I am, therefore, of the view that joinder of appellant No. 2 to the proceedings itself was un-called for in the circumstances. In view of what has been stated above, there is no merit in this appeal which is hereby dismissed with costs. Appellant No. 1 shall vacate the premises within 60 days and hand over peaceful possession to respondents failing which a writ of possession shall issue against him without any prior notice. (MYFK) Appeal dismissed

PLJ 1996 Karachi 432 PLJ 1996 Karachi 432 [Circuit Court Larkana] Present: rana bhagwandas, J. ABBAS ALI-Appellant versus GHULAM UMER etc.--Respondents. F.R.A. No. 46 of 1994 dismissed on 28-5-1995 Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 21~Suit for ejectment-There was a clear default in deposit of rent for months of August to October, 1977-In absence of any circumstances to show that appellant was prevented by superior force from depositing rent, it is difficult to accept contrary view-Appellant neither suggested to land lord nor his witness that he owned another house-Held : Choice as to in which house, landlord would like to live, is surely a matter within his prerogative and discretion-Appeal dismissed. [Pp. 435, 436,437,438] A, B, D & E 1973 SCMR185 ref. Ejectment-- —Whether death of plaintiff/landlord during pendency of suit, ground of personal requirement was no more available to his legal representatives Question of~Superme Court (Full Bench of Six Judges) took view that in a case of ejectment from residential premises, landlords need has always been considered to be need of his family-However, in case of personal need with regard to non residential premises, death of relevant person will abate the proceedings— [P. 440 ] C 1985 SCMR 41 rel. Mr. Ghulam Sarwar Abbasi, Advocate for Appellant. Mr. Mohanlal, Advocate for Respondents. Date of hearing: 28-5-1995. judgment This appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter referred as the Ordinance) is directed against eviction order dated 14-4-1994 passed by learned 1st Rent Controller, Larkana, directing ejectment of the appellant from house bearing CS No. 11 Ward 'B' Larkana on the grounds of default, requirement of the landlord for personal use and reconstruction of the building. 2. Appellant is the tenant of the respondents in the demised premises with effect from 1964 on a monthly rental of Rs. 25/- per month which commenced during the life time of Haji Muhammad Siddique predecessor-in-interest of the respondents hereinafter to be referred as the landlord. Eviction of the appellant was sought by the landlord on the grounds (i) default in payment of rent from August, 1977 to December, 1977 (ii) damage to property (iii) reconstruction of building for self occupation and (iv) requirement of the premises bona fide for occupation of the landlord and his family consisting of 18 members. 3. In the written statement, appellant resisted his eviction and stated that he had deposited rent in the office of Controller with effect from 22-01-1978 for the period from August, 1977 upto date as the landlord and refused to accept the rent on being tendered. He denied all other allegations including personal requirement of the landlord on the averment that he was residing in his own house with 8 family members and the accommodation being sufficient he did not require the premises for his personal use in goodfaith. He added that the landlord had got three other houses and this ground was falsely set-up. 4. On the pleadings of the parties, learned Controller settled the following issues :- 1. Whether the opponent committed wilful default in payment of rent from the month of August, 1977 to December, 1977? 2. Whether the opponent has damaged the suit premises ? 3. Whether the premises in question is required by the applicants in good-faith for their personal use ? 4. Whether the premises is required by the applicants for reconstruction ? 5. What should the order be ? 5. Both the parties adduced evidence. While the landlord examined himself, his nephew Abdul Khalique and Manzoor Ali Khichi, appellant Abbas Ali examined himself in addition to another witness Arbab Ali Dayo. 6. Upon consideration of relevant evidence and hearing parties' counsel, learned Controller decided all issues against the appellant except issue No. 2. Consequently he directed ejectment of the appellant which has been impugned in this appeal. 7. I have heard learned counsel for the parties and gone through the relevant evidence on record. 8. Learned counsel for the appellant firstly contended that learned Controller wrongly decided the issue relating to default because the appellant had not reason to discontinue payment of the rent being and old tenant since 1964. He contended that the appellant had stated on oath that he had offered rent to the landlord which was refused on the view that it would be collected later-on whereafter the appellant was constrained to deposit rent in the office of Rent Controller, the first deposit being made on 22-01-1978, Learned counsel urged that notwithstanding late deposit of the rent for the period from August, to December, 1977 under the provisions of the repealed West Pakistan Urban Rent Restriction Ordinance 1959 learned Controller ought to have exercised his discretion in favour of the appellant rather than directing his eviction. 9. Both the counsel conceded that the default in payment of rent relating to the period before coming into force of the 1979 Ordinance, the issue of default would be governed by the provisions of repealed Ordinance 1959. Indeed the provisions of the repealed Ordinance as well as 1979 Ordinance as regards the payment of rent and default are more or less the same except that in the repealed Ordinance apart from payment of rent, words "tender of rent" and word "may" instead of "shall" were used which do not appear in 1979 Ordinance. Be that as it may, there being no written agreement of tenancy between the parties stipulating the date fdr payment of rent, appellant would be entitled to the grace period of 60 days for payment of rent when it falls due. In this view of the matter, rent for the months of August, September and October would be due for payment within 60 days after the close of the month but in the present case appellant and deposited rent for these months alongwith the rent for November and December, 1977 for the first time on 22-01-1978. There was thus a clear default, in deposit of rent for the months of ugust to October, 1977 within the meaning of the erm. Learned counsel for the appellant took pains to persuade this court that learned Controller having not exercised his discretion in favour of the appellant, default being un-intentional, appellate authority would be within its rights to exercise the discretion in favour of .the tenant. He relied upon Muhammad Shafi v. Iqbal Ahmed and another (PLD 1965 Lahore 23) in which the view taken was that the expression "Controller may make an order directing the tenant to put the landlord in possession" suggests permissive action by Controller. It was further held that under section 13(2) of the Ordinance 1959 ordering ejectment of tenant on ground of non­ payment of rent was a matter of discretion with the Controller. In the facts of the reported case learned Single Judge of the Lahore High Court further held that circumstances and evidence being not sufficient for coming to definite finding about non-payment of rent, doubt has to be resolved in avour of tenant. There is no cavil with the proposition of law laid down in the above judgment but it would depend upon facts of each case whether I wilful default was committed or not 10. On the other hand, learned counsel for the respondents vehemently contested the argument advanced on behalf of the appellant and contended that the default on the part of a tenant could only be condoned by the Controller when it was shown from the record that the circumstances leading to non-payment of rent were beyond the control and power of the tenant. In the present case, appellant had failed to explain as to why the rent was not sent by money order and indeed no circumstance was shown to exist for not depositing the rent in the office of the Controller within time. Learned counsel submitted thai in the event of a clear cut intentional default in payment of rent, appellant cannot be absolved of his duty to pay rent within time which was inexcusable and the Controller has no power to condone the default. He cited Muhammad Siddiq v. Seth Harchand Rai and another (PLD 1976 Karachi 966) and Muhammad All v. Muhammad Yakoob (1986 CLC 2550). 11. In the first case, dealing with a case of default under the Ordinance 1959, it was held that tender of rent beyond due date does not wash out default already committed. In the reported case default was not shown to have been caused to circumstances beyond the control of tenant and ejectment was up-held. In the second case dealing with the issue of default under the 1979 Ordinance, learned Single Judge finding that the tenant had failed to produce any rent receipt or money order coupon to prove tender of rent, held that the Rent Controller had rightly concluded that tenant had committed default in payment of rent 12. The proposition of law laid down in the cases referred to above is. undoubtedly correct but it would appear that each case must be decided on its own facts. In the instant case while the appellant stated that he had offered rent to the landlord who refused to accept the same on the view that e would collect the same later-on. On his part landlord denied any offer of rent by the appellant. Explanation H (b) to S. 13(2) of the Ordinance 1959 lays down that rent remitted by money order to the landlord or deposited in the office of the Controller having jurisdiction in the area where the building or rented land is situated, shall be deemed to have been duly tendered. It may be observed that remittance of rent by money order in law has been accepted as one of the recognised modes of tender of rent under the repealed Ordinance. There is not an iota of evidence of indicate as to why the appellant did not care to remit the rent by money order and failing that, to account for the circumstances which compelled him to deposit rent not before 22-1-1978. In the absence of any circumstance to show that the appellant was prevented by superior force from depositing the rent within time and the learned Controller having found that the appellant was in default, it is difficult to accept the contrary view advanced on his behalf. 13. On the issue relating to reconstruction of the house for self —escupation, learned counsel for the appellant rightly pointed out that S. 15(2) (vi) providing a ground for ejectment of a tenant shall be read in conjunction with sub section (4) of the 1979 Ordinance which guarantees re-occ pation of the building by the old tenant after reconstruction. Learned counsel urged that the landlord having not under-taken to put the appellant in possession of the premises after reconstruction cannot seek eviction of the tenant in law on this ground. 14. Mr. Mohanlal learned counsel for the respondents however submitted that in order to demonstrate his good-faith, landlord had obtained approval from the Municipal Committee, Larkana for reconstruction of the building after demolishing the old structure spread over 60 square yards, for his own occupation and that of his family comprising 18 members. 15. There is considerable force in the submission advanced on behalf of the appellant and I am inclined to agree with Mr. Abbasi that the landlord cannot succeed in an ejectment case on the ground of reconstruction unless he undertakes to j,ui ine tenant in possession of such area in the new building which does not exceed the area of the old building of which he was in occupation. Faced with this situation, Mr. Mohanlal did not pursue this issue further and submitted that the landlord had a bright case on the ground of personal requirement of the premises for his own occupation in good-faith. 16. Adverting to the issue of personal use, there is overwhelming evidence on record to show that the land-lord has not other house of his own in Larkana and that he alongwith his family consisting of five sons, two un­ married daughters, three grand sons and four grand daughters had been residing in house bearing CS No. 2247 Ward 'B' All Goharabad as licensee of his nephew Abdul Khalique. It is obvious from the evidence of landlord as well as Abdul Khaliq that the latter has been residing in a rented house owned by Inayatullah Shaikh with his large family. It was stated that Abdul Khalique had been insisting the landlord to vacate his house as he required it for the use of his family bona fide. This circumstance is corroborated by the evidence of Abdul Khaliq while there is no reliable evidence to hold that landlord owns three houses at Larkana. In this connection, landlord conceded that his son Ghulam Umar alongwith his wife and six children is residing separately in house bearing C.S. No. 2202 Ali Ghoharabad which was owned by him and his brother Ghulam Hyder. 17. On the other hand, appellant Abbas Ali during his crossexamination admitted that the landlord has six sons out of whom three are married. In all he has six sons, two daughters, three grand sons and four grand daughters. Excluding Ghulam Umar and Ghulam Hyder with their wives who are living in another house separately from the landlord, there would still be 14 members in his family and the house in dispute measuring only 60 yards would be required by him after demolition and reconstruction thereon. Appellant can not be heard to say that respondents own another house namely C.S. No. 976 which was neither suggested to the landlord nor - his witnesses. For the first time appellant in his evidence produced an extract from Property Register Card Ex. 38 in the name of the landlord. Since this document was produced for the first time in evidence by the appellant long after the close of the respondents' evidence, their counsel had moved an application for allowing them to lead evidence in rebuttal which was wrongly declined by the learned Controller. On another application for inspection of the site, learned Controller inspected the C.S. No. 976 in presence of the parties and found that it comprised of a big hafl which was full of utensils with no amenity provisions like sui gas, water supply or electric connection. It was for this reason that learned counsel for the respondents suggested to the appellant during his cross-examination that C.S. No. 976 was used as godown of utensils of the shop but he cleverly expressed his ignorance. I am, therefore, convinced that premises bearing C.S. No. 976 is not a residential house and not fit for accommodating the landlord and his family. 18. Finding weakness in the appellant's case, it was urged that during the pendency of the proceedings, landlord Haji Muhammad Siddique having died, ground of personal requirement of the premises was no more available to the respondents. Reliance was placed on Muhammad Shaft and others v. Muhammad Ilyas (1986 SCMR 451) which was a case of shop premises and the view taken was that personal requirement of the demised premises after the death of original landlord who filed application for ejectment did not ensure for benefit of legal representatives of landlord after his death. The case relating to shop premises does not advance the case of the appellant, who is being ejected from residential premises. 19. On the other hand learned counsel for the respondents referred to Haji Ibrahim v. S. Rahmatullah (1985 SCMR 241) in which a Full Bench of the Supreme Court consisting of six judges, took the view that in a case of ejectment on ground of personal need of landlord from residential premises his need for residential premises has always been considered to be the need of the family, hence his death, pending proceedings makes no difference. With regard to need of the landlord in respect of non residential premises, it was held to be personal to himself or his male child or to both as the case may be. Supreme Court held that it implies therefore that if the death of the relevant person takes place during the pendency of proceedings before an order of eviction is made, the proceedings abate and do not survive his death. 20. In may view, in the circumstances of the present case in which the landlord has sought ejectment of the appellant for self occupation and use of his family members, this ground would continue to be available to his legal heirs i.e. the respondents and the prayer for ejectment on this ground cannot be dismissed on the simple ground that the landlord had expired during the pendency of the ejectment proceedings. 21. Last contention of the appellant that the premises presently in occupation of the respondents, were sufficient for their need as they were residing therein for a period over three decades, must be repelled as held by the Supreme Court time and again and latest in the case of Hashim Khan v. Miyeebur Rahman and thers (1995 SCMR 148) in which the view taken was that tenant's contention that landlords being in occupation of rented shop which was more suitable for their use, were precluded to seek ejectment of tenant was of no avail to them as the word building did not extend to cover rented premises but extended only to premises owned by landlord. 22. Even in a case where landlord possesses more than one house in the same urban area, the choice as to the house in which he would like to live himself is surely a matter within his prerogative and discretion and the law does not give either to the tenant or to the Rent-Controller the power to determine where the landlord should personally reside. This was the view taken in Sabu Mai v. Kika Ram (1973 SCMR 185) by the Supreme Court which is sufficient to dismiss the argument advanced on behalf of the appellant. 23. In view of the fore-going discussion, there is no merit in this appeal which is liable to be dismissed. It is accordingly dismissed. Appellant is allowed 90 days period of put the respondents in vacant possession of the premises failing which a writ of possession shall issue against him without any prior notice. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 438 PLJ 1996 Karachi 438 Present: RASHEED A. RAZVI, J. Mst SABA and another-Plaintiffs. versus Mrs. PATRICIA and others-Defendants. Suit No. 30 of 1993 dismissed on 23-5-1995 (i) Limitation Act, 1908 (Act IX of 1908)- -—Art. 110 read with Cantonment Rent Restriction Act, 1963 S. 17(2)-Suit for recovery of arrears of rent-Plaintiff is claiming rent for period Nov. 986 till March, 1989-According to section 17(2) of Cantonment Rent Restriction Act, 1963, a tenant is obliged to pay monthly rent within 15 days of expiry of time fixed in tenancy agreement-Therefore, period for claiming rent expired on 15-4-1992, hence, time for filing recovery suit was upto 15-4-1992 as per Limitation Act-Suit was filed on 10-1-1993, therefore, dismissed. [P. 444] B (ii) Rentdue- —-Expression "rent due" should mean rent which has remained unpaid and is legally recoverable under law-It is well settled that a landlord cannot recover rent beyond a period of three years. [P- 444]A 1985 MLD 1514,1980 CLC 664 ref. Mr, A. Rashid, Advocate for Plaintiff. None for Defendants. Dates of hearing: 27-4-1995 & 23-5-1995. judgment This suit is filed by the plaintiffs for recovery of Rs. 8,26,000/- from the defendants. The case of plaintiffs is that they are joint owners of a double storey bungalow situated on Plot No. A-15/A/1, Sunset Boulevard, Phase-H, Pakistan Defence Housing Authority, Karachi, hereinafter mentioned as Bungalow in question. According to the contents of plaint, defendant No. 1 was the tenant of the said bungalow vide tenancy agreement dated 17.9.1986 at the rate of Rs. 18,000/- per month payable in advance. Copy of the tenancy agreement has been filed as Annexure 'P-l' with the plaint The defendant No. 1 was running a private school in the said bungalow. Defendants No. 2 and 3 who are maternal uncle of the defendant No. 1, were also involved in the tenancy of the said bungalow. It is further averred in the plaint that the defendant No. 1 paid rents to the plaintiff till October, 1986 and that on 24.10.1996 the plaintiffs were informed that the defendant Nos. 2 and 3 will pay the rents thereafter to the plaintiffs. In such circumstances, a fresh tenancy agreement was executed between the plaintiffs and defendant Nos. 2 and 3 which has been filed with plaint as Annexures 'P-3' and 'P-4' respectively. 2. It is the case of the plaintiffs that the defendants paid rent till November, 1986 and then out of mala fides filed a civil suit against the plaintiffs for declaration and injunction which was subsequently dismissed. In these circumstances, the plaintiffs filed a rent case for eviction of all the defendants under section 17 of the Cantonment Rent Restriction Act before the Rent Controller, Cantonment Board, Clifton, Karachi. This case was numbered as 51/87. On 25.10.1987 learned Rent Controller passed a tentative rent order against the defendants directing them to deposit arrears of rent amounting to Rs. 1,57,500/- and future monthly rent at the rate of Rs. 18,000/-. Since the defendants failed to comply the said rent order of the Rent Controller, as such on 13.12.1987 their defence was struck out. 3. Being aggrieved with the above said order of the Rent Controller, Clifton, Karachi, the defendant No. 1 preferred a first rent appeal before this Court which was numbered as FRA No. 84/88. Defendant Nos. 2 and 3 preferred another first rent appeal which was numbered as FRA No. 156/89. In both these appeals, again on 22.1.1989, a consolidated rent order was passed by High Court directing the defendants to pay the arrears as well as future monthly rents. The defendants (appellants in rent appeals) failed to comply the said order of the High Court and consequently both the rent appeals were dismissed in default on 24.2.1991. In these circumstances, the plaintiffs have brought this suit for recovery of arrears of rents against the defendants. Summons of this suit were duly served on the defendants who filed their respective written statements through their advocates. On 31.10.1993, the learned Counsel for the plaintiffs pointed out to this Court that the copies of written statements filed by the defendants were not supplied to him. Consequently, Counsel for the defendants were granted one a eek's time to provide copies of written statements to the advocate for the plaintiffs. The defendants failed to supply copies of the written statements to the plaintiff till 28.11.1993 when their defence was struck off by this Court and it was ordered that the case will proceed ex pane. Since then till 23.5.1995 (nearly for 18 months) the defendants made no efforts to get their defence restored. The plaint is sworn on solemn affirmation by one of the plaintiffs. In view of the order dated 8.11.1993, there is no defence, therefore, the contents of plaints have gone unrebutted/unchallenged. Besides, there are orders of High Court in rent appeals which further support contents of the plaint. 4. On 7.4.1995 after hearing Mr. Abdul Rashid and Mr. Riaz Ahmed, Advocates, the above case was adjourned for announcement of judgment but while the judgment was being dictated, it was transpired that the tentative rent order was passed on 22.1.1989 by this Court in First Rent Appeal No. 156/88 and the physical possessions on the house in question was obtained by the plaintiff on 27.4.1989 and this suit was filed on 10.1.1993 after a delay of nearly four years. Fresh notices were ordered to be issued to the parties to re-argue the case on the question as to how this suit is maintainable in view of Article 110 of the Limitation Act ? In response to the same, Mr. Abdul Rashid has again appeared and addressed this Court at length on the factual as well as legal ground. 5. Mr. A Rashid has vehemently urged that the time for filing the suit will run from the date when the rent proceedings were finally terminated between the parties. That the word "due" as used in the Article 110 of the Limitation Act means that the time will start running when the rent legally becomes due against the defendant. He has relied upon the case ofAtaullah Malik v. Rasheed & another (PLD 197 Kar. 273). For proper appreciation of the contention raised by Mr. A rashid, it will be advantageous o re-produce order dated 22.1.1989 passed by a learned single Judge of this Court in the First Rent Appeal bearing No. 156/88 and F.R.A. No. 84/84 :- "It is an admitted position that the rent has been paid to respondents/landladies upto October,, 1986. It is also admitted by the parties that appellants Younus Das and Gulzar Das were in possession of the premises in dispute since November, 1986 to August, 1987, with the consent of the landladies and, therefore, for this period of ten months they are directed to deposit Rs. 1,80,000/- towards arrears of rent. As far as appellant Mrs. Particia was concerned, she is admittedly in possession of the premises in dispute since September, 1987 and, therefore, she was liable to pay/deposit Rs. 2,88,000/- upto 31st December, 1988. It is also admitted that she had deposited Rs. 1,20,000/- as security with the landladies and, therefore, she is liable to deposit Rs. 1,68,000/- (Rupees one lac sixty eight thousand) towards the arrears of rent. I, therefore, direct that the appellants Younus Das and Gulzar Das to deposit Rs. 1,80,000/- towards the arrears of rent within two months While the appellant Mrs. Particia is directed to deposit PvS. 1,68,000/- towards the arrears of rent within two months. She is further directed to deposit future rent from January, 1989, by Feb. 1989, and thereafter regularly." 6. It is the case of the plaintiffs that the defendants instead of complying the above quoted order of this Court, they secretly shifted the entire moveable from the house in question and abandoned the same. As property was laying vacant and abandoned, therefore, the Defence Housing Authority took over the possession of the said house. On 7.4.1989 the plaintiffs obtained physical possession of the house in question from the Defence Housing Authority. It is further averred by the plaintiffs in their plaint that the First Rent Appeal bearing No. 84/88 and FRA No. 156/88 were dismissed on 24.2.1991 for non-prosecution. According to the learned Counsel for the plaintiffs, the time to recover rent from the defendants will start running from this date as the tentative rent order passed by this Court on 22.1.1989 become final on this date. 7. It is settled law that the rent orders passed by Rent Controllers during pendency of the rent cases or by the Appellate Court during preliminary hearings under Section 16 of the S.R.P.O., 1979 are always tentative or provisionals in nature. These tentative rent orders become final at the termination of the proceedings on merits, when there is final determination of rights by the Rent Controller or Appellate Court. On the proposition that the rent orders are tentative in nature and not final, reference may be made to a case of Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), Abdul Ghafoor v. Ahmed Khundi (PLD 1969 SC 44) and the case ofMushtaq Russian v. Muhammad Shaft (1979 SCMR 496). In one of the recent case, Supreme Court of Pakistan held that an order under Section 18(1) of the S.R.P.O., 1979 is always tentative and approximate and that the final determination is possible under Section 16(3) of the Ordinance, 1979. See the case of Mrs. Zarina v. Ahmed AliAgha (PLD 1988 SC 190). Now the question remains to be answered is whether right to sue or recover arrears of rent will remain suspended during final determination of the rents before the Court of Rent Controller. More or less, such question came up before the learned Division Bench of this Court in the case of Attaullah Malik v. Rahshid & another (PLD 1972 Karachi 273) wherein the term Vhen the arrears become due" as mentioned in Article 110 of the Limitation Act, for consideration. In this reported case, Mr. Muhammad Haleem, J. (as he then was) held as follows. Mr. A Rashid- has vehemently relied upon this portion of the reported case. ............................. The word 'due' has the connotation of something legally demandable and as was held by their Lordships of the Supreme Court in Ashfaqur Rahman v. Ch. Muhammad Afzal (PLD 1968 SC 230), the word 'due' would carry the connotation of "due in law or recoverable in an action at law". Consequently, a suit for the recovery of rent can only be filed when the rent becomes legally recoverable and that is in point of time when the cause of action to recover the arrears accrues "6. Our conclusion from what has been discussed above is that the word 'due' in Article 110 of the Limitation Act means the date on which the cause of action arises for filing a suit and in this context the rent for the entire period of 10 years and 10 months become due on 19th November 1990 when the Custodian upheld the order of the Additional Custodian (Judicial), and the respondents were in law entitled to sue for the recover of the arrears of rent The suit was filed within 3 years of that date and therefore it was within time under Article 110 of the Limitation Act" 8. Facts of the reported case relied upon by the learned Counsel for . the plaintiffs (PLD 197 Karachi 73) are quite different to the facts of the present case. In the reported case, the property purchased was an evacuee property and under section 16 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949, it was mandatory that the sale transaction should be confirmed by the Custodian. It was under these circumstances that the rents of the property becomes due after confirmation of the sale and determination of the rents. But in the instant case when the relationship of landlord and the tenant is admitted and the premises is governed by the provisions of Sindh Rented Premises Ordinance, 1979, the term "when the arrears become due" is to be interpreted from a different angle. Article 110 of the Limitation Act has been subject matter of interpretation in other reported matters which I would like to discuss hereinafter. 9. The first case which is close to the facts of this case is the case of M/s. Petrol Service, & Distillation Co. Ltd., Karachi Larkana v. M/s. Pakistan Burmah Shell Oil Storange and Distillation Co. Ltd. Karachi (PLD 1982 Karachi 121). In this reported case, plaintiff filed a suit for recover of certain amount against the defendants for damages, rental of site, arrears of rent and unpaid commissions. One of the issues involved in the reported suit questioned the amount of rent and commission outstanding against the defendant. After considering the entire evidence of the case, it was held by Mr. Saeeduzzaman Siddique, J. (as he then was) that the part of the claim for recovery of arrears of rent was time barred as it was filed after a lapse of three years. Following is the relevant portion of the reported case :- " ..... It is, therefore, rightly contended by the counsel for defendant that a major part of the claim of plaintiff for arrears of rent is clearly beyond time. The learned counsel for the plaintiff was unable to point out any acknowledgement by the defendant after 1965 whereby the defendant admitted its liability to pay this amount On the contrary the plaintiff themselves closed this issue vide its letter dated 5.2.1965 (Exh. P/4). The suit was filed on 7.1.1971 and as such the plaintiff can only maintain its claim for arrears of rent for the period from 1.1.1968 to 31.7.1969. The arrears of rent prior to 1.1.1968 had become time barred on the date of institution of the suit....." 10. In another case reported as Anwarul Haq v. Messrs Standard Eastern Inc. (188 MLD 1170), it was held by Mr. Ajmal Mian, J. (as he then was) that a suit for recovery of arrears of rent is maintainable, if filed within three years after the rent became due. In this reported case, it was a suit filed by the plaintiff for recover of Rs. 65,000/- as arrears of rents from 1.1.1952 to 30.11.1962 which was filed on 7.5.1969. Many issues were framed including issue of limitation as well as issue on the question of legal rights of the plaintiff to claim the rents. Case of Attaullah Malik (PLD 197 Karachi 73) was also considered. It was held by this Court as follows :- " ...... It is, therefore, evident that the suit is barred by limitation if I were to compute the period even from the last date of the period for which the arrears of rent is claimed. I may observe that Mr. Nasim Farooqi, learned counsel for the defendant has rightly pointed out that when a plaintiff claims rent month to month then the cause of action will arise for the recovery of rent for each months when the rent becomes due and payable for the months concerned." 11. In the case of Anwarul Haq, the effect of acknowledgement for the purpose of limitation as provided in section 19 of the Limitation Act was also considered and it was held that withdrawal of the suit does not amount to acknowledgement. In the present case, there is no acknowledgement, of outstanding arrears by any of the defendants. The rent appeal was dismissed due to default in appearance of the counsel for the appellant. There was no final determination of the rate and period of rents. Therefore, the plaintiff has no basis to say that there was an acknowledgment and that the time will run from the date of last acknowledgment It is pertient to note that section 9 of the Limitation Act, 1908, provides that once the time has begun to run then no subsequent disability or inability to sue will stop it 12. The term "rent due" has been discussed in several case laws. The term "all the rent due" in reference to the section 13(6) of the West Pakistan Urban Rent Restriction Ordinance, 1959 came up for consideration before the Honourable Supreme Court of Pakistan in the case of Ashfaquar Rehman v. Muhammad Afzal (PLD 1968 SC 30) wherein it was held that tenant cannot be deprived to take a legal defence under the general law that if the rents unpaid cannot be recovered in view of the law of limitation through a Civil Court, then he cannot be made liable for eviction. Following is the relevant portion of this reported judgment: " .... Though the word "lawfully" is not added to "all the rent due" in section 13(6) yet the effect remains the same. When rent is sought to be recovered by a legal process be it before a court or a tribunal the word 'due' would carry the connotation of "due in law" or recoverable in an action at law." 13. In another case, this Court has also considered the word "rent due" and after following the law laid down by the Supreme Court in the case of Ashfaq-ur-Rahman, it was held by Mr. Saleem Akhtar, J. (as he then was) that the expression "rent due" should mean the rent which has remained unpaid and is legally recoverable under the law. It was further held by the learned Judge that "it is well settled that a landlord cannot recover the rent beyond a period of three years." (For reference please see Mst. Hashmi Begum v. Mst. Alya Zohra Begum 1985 MLD 1514). The same proposition of law was also held in the case of Muhammad Ahmed v. Mrs. Qamar Anwar Sheikh (1980 CLC 664) by Mr. Zafar Hussain Mirza, J. (as he then was). 14. In the present case, the plaintiff is claiming rent for the period November, 1986 till March, 1989. The landlord/plaintiff received the physical possessions of the premises on 7.4.1989. The last rent outstanding was for the month of March, 1989. The rent for the month of November, 1986 became due on the 1st day of December, 1986. According to section 17(2)(i) of the Cantonment Rent Restriction Act, 1963, a tenant is obliged to pay the monthly rent within fifteen days of the expiry of the time fixed in the tenancy agreement. Therefore, the time available to the plaintiff for claiming rent for the month of November, 1986 expired on 15.1.1989. Similarly, the period for claiming rent for the month of March, 1989 expired on 15.4.1992. In these circumstances, time available to the plaintiff for filing suit for recovery of rents against tenants was upto 5.4.1992 but the suit was filed on 10.1.1993. In view of the facts and law discussed hereinabove, this suit is liable to be dismissed, although the question of limitation was not set up as a defence. 15. Suit is dismissed with no order as to costs. (MYFK) Suit dismissed.

PLJ 1996 Karachi 445 PLJ 1996 Karachi 445 Present: HUSSAIN ADIL KHATRI, J. Mirza ANWAR BAIG--Appellant versus ABDUL RAB—Respondent F.R.A. No. 234/1991 dismissed on 6.8.1995. Sindh Rented Premises Ordinance,, 1979 (XVII of 1979)— S. 15—Tenant-Ejectment of--Default--Ground of--Contention that words used in agreement for payment of rent in advance were against provisions of Ordinance-Word advance has no legal value as according to section 10 of Ordinance, what is important is date when rent becomes due-Submission is without any substance-Rent becomes payable in terms of mutual agreement, otherwise rent becomes payable on 10th of month next following month for which it is due-There was an agreement for payment of rent in advance-Accordingly rent having not paid within 15 days of expiry of period prescribed by mutual agreement, appellant had incurred liability of eviction u/S. 15 of Ordinance—Appeal dismissed. [P. 448] A Mr. Asar Hussain, Advocate for Appellant. Mr. Muhammad Akram Shaikh, Advocate for Respondent. Date of hearing: 6.8.1995. judgment The present appeal has been filed assailing the order dated 9.3.1991 passed in Reat Case No. 1541 of 1983 by the 1st Senior Civil Judge & Rent Controller, Karachi Central, whereby the appellant was ordered to be evicted from the shop measuring 90 square yards situated on the ground floor of the building on plot No. 41116 Liaquatabad,, Karachi. The respondents/landlord had sought the eviction of the appellant on the grounds of default in payment of rent for the months of February, March and April 1983, and requirement of demised shop for the respondent's sons who were carrying on furniture business on footpath for more than two years prior to institution of the rent case. According to the respondent, the monthly rent originally was Rs. 200/- which was with the passage of time increased to Rs. 300/- per month. However, the appellant with respect to the quantum of rent pleaded that in January 1983 the rent was enhanced to Rs. 350/- and accordingly he paid the said rent to the respondent on the intervention of Furniture Market Association. He further claimed that he paid the rent for the month of February 1983 so also March 1983 in time and demanded receipt but it was not issued on the pretext that it would be issued after the respondent purchased the receipt book. The respondent thereafter, according to appellant, started pressurizing him to increase the rent to Rs. 400/- per month. Such demand was not accepted by the appellant and he started depositing rent in Misc. Rent Case No. 1470 of 1983. It is further pleaded that the respondent had approached the appellant for loan for the purpose of carrying out repairs/reconstruction of the demised shop. The appellant paid a sum of Rs. 28.000/- as loan to the respondent and a tenancy agreement was executed for an indefinite period with the condition that the appellant would not be evicted from the demised shop on the ground of requirement thereof by the respondent for his personal use or the use of hit childi en. The letuiiuJ Kuril Cuiiiruli-:.-i after recording evidence: reached the conclusion that the rule a rent was Us. 3uu/ per month. The receipt produced by the appellant to establish that the rent was Rs. 350/-, was found to have been tempered and was disbelieved. It may be pointed out that the aforesaid receipt pertains to payment of the rent of the month of January 1983. It brought on record as Ext. 0/4. It may further be pointed out that a photo copy of the said receipt was produced as Ext. 0/3. With regard to the requirement of the demised shop for the use of the sons of the respondent, the learned Rent Controller reached the conclusion that the respondent having bartered his right of evicting the tenant on the ground of personal requirement, under the agreement of the tenancy, he was not entitled to the relief on such ground. With respect of default in payment of rent, the learned Rent Controller reached the conclusion that the appellant having failed to pay rent within 15 days of the agreed date of payment of rent for the month of March and April 1983, he was liable to be evicted. The tenancy agreement was executed between the parties on 6.7.1970. It specifically provided that the tenancy would be for indefinite period and the landlord would not claim the possession of the shop on the ground of his or of his children's personal use or on any other ground subject to the condition that the tenant would regularly pay the rent in advance. I have heard Mr. Muhammad Asar Russian learned counsel for the appellant and Mr. Muhammad Akram Shaikh learned advocate for the respondent. The learned counsel for the appellant relying on Section 10 of the Sindh Rented Premises Ordinance, 1979 (Ordinance XVII of 1979) submitted that as no date has been fixed in the agreement for payment of rent, the rent was payable by 10th of the month, next following the month for which is due. It is further submitted that no period having been fixed for payment of rent, the eviction can be ordered on the ground of non-payment of rent, if it is not paid within 60 days after the rent has become due for payment. Reliance was placed on Section 15(2)(ii) of the Ordinance. Reiving on the aforesaid provision, it was submitted that due date for payment being 10th of the month, the time of 60 days to constitute the default in payment of rent, would be computed after the expiry of the 10th of the month. It was thus sbmitted by him that the appellant having deposited rent in Misc. Rent Case on 17.4.1983 for the months of March and April, he was not liable to be evicted on the ground of default He placed reliance on the case of Yawar Baig v. Usman Ghani Cheepa (1989 CLC 47), Babu v. S.M. Rafi (1989) CLC 94), Hakeem Mozzumuddin Baqi v. Abdul Hussain TahirAli and 3 others (1989 CLC 7) and Fareew Ahmed v. Fikree Development Corporation (1991 MLD 2609). The above provisions of law have been succinctly analysed by Saleem Akhtar, J. (as he then was now Judge of the Supreme Court) in the last mentioned case as under :- In this eouuection section 10 may also be referred which provides thtit the rent shall in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant be paid not later than the 10th of the month next following the month for which it is due. The question for consideration is whether in a case where an agreement which provides for period of tenancy but does not fix a day for payment of rent the grace period shall be 15 days or 60 days. A perusal of sections 10 and 15 will show that although the Ordinance provides for payment of rent on the 10th of the month next following the month for which it is due, it is subject to agreement: if the agreement between the parties is otherwise this date will be changed. In case where the tenancy month ends with the calendar month rent must be paid by 10th of the next month provided there is no agreement to the contrary. In spite of these provisions section 15 has fixed another period for the purpose of calculating default. It contemplates two situations one where by agreement a date for payment has been fixed and the other where there exists an agreement of tenancy but no date for payment of rent has been fixed. In the first case the tenant will be required to pay within 15 days from the date fixed by mutual agreement between the parties; whereas in the second case a grace period of 60 days has been allowed." In view of the above, there can be no cavil with the proportion that where the date for payment of rent is not fixed by mutual agreement between the landlord and tenant, the rent will be due to the 10th of the month next following the month for which it is due and Section 15(2)(ii) of the Ordinance will attract an order of eviction if the rent is not paid within 60 days of the aforesaid date. It is not necessary, in view of the what follows, to dialate any further on the aforesaid proposition. The learned counsel for the respondent submitted that under the agreement executed between the parties, the rent was payable in advance. He further pointed out that under the agreement it was understood between the parties that the rent will be paid in advance on the first of the mouth. He referred to the rent application filed by the respondent wherein it is specifically pleaded that, "The opponent is a tenant is respect of ............ on monthly rent at the rate of Rs. 300/- per month payable in advance on the first of each month regularly." The above averment in the application was not denied by the appellant in his written statement and therefore it is to be deemed to have been admitted. The respondent has reiterated the above statement with regard to payment of rent in advance on the first of each month in his affidavit-in-evidence. Such statement was not challenged in the crossexamination. The appellant in his affidavit-in-evidence also did not rebut the above averment. The impugned order does not disclose that any submission was made with regard to absence of the date fixed for payment of rent. The learned Rent Controller had therefore proceeded on the assumption and rightly so that rent was payable in advance on the first of the month and had found that the appellant had failed to pay rent in respect of the demised premises with 15 days after the expiry of the period fixed by mutual agreement between the parties for payment of rent and accordingly ordered his eviction. In view of the aforesaid admitted position that the rent was payable in advance on the first of the month, the first three authorities relied upon by the counsel for the appellant are not applicable to the facts and circumstance of this case, as no date was fixed for payment of the rent by the respective tenants in the said cases. However the learned counsel for the appellant contended that the words used in the agreement for payment of rent in advance were against the provisions of the Ordinance. In support of such submission, he stated that the word 'advance' has no legal value as according to Section 10 of the Ordinance, what is important is the date when the rent becomes due. The submission is without any substance. Rent becomes payable in terms of the mutual agreement between the parties when there is such agreement, otherwise the rent becomes payable on 10th of the month next following the month for which it is due. In the instant case, there was an agreement for payment of rent in advance. It was specifically pleaded that rent was payable in advance on the first of the month. Such averment, as already stated above, was not disputed either in the written statement or in the evidence by the appellant. Accordingly the rent having not paid within 15 days of the expiry of the period prescribed by the mutual agreement, the appellant had incurred the liability of eviction under Section 15 of the Ordinance. Before parting with the judgment, it may be pointed out that the learned Rent Controller had misread Exhibits 0/3 and 0/4; 0/4, a s already stated above, being the original receipt. The learned Rent Controller has taken the said receipt to be towards payment of rent for the month of February 1983. The said receipt was issued by the respondent for the month of January 1983 on 14.2.1983 on 14..1983. Thus the appellant had committed default in payment of rent for the months of February, March and April. The rent of the aforesaid three months and deposited by the appellant in Misc. Rent Case on 17.4.1983 i.e. after expiry of 15 days fixed for payment of the rent. In view of the above, no exception can be taken to the finding of the learned Rent Controller on the issue of default in payment of rent by the appellant. The appeal is, therefore, dismissed with costs. By consent, the appellant is allowed sixty days time for delivery of vacant possessions of the demised shop to the respondent. M.S.N. Appeal dismissed.

PLJ 1996 Karachi 449 PLJ 1996 Karachi 449 [Original Civil Jurisdiction] Present: RASHEED AHMED RAZVI, J. PAKISTAN STEEL PRODUCTS etc--Plaintiffs versus M/S INDUS STEEL PIPES LTD.»Respondent Suit No. 887 of 1988, decided on 18-4-1995. Contract Act, 1872 (IX of 1872)-- —Ss. 3, 4, 5 & 7~Suit for declaration, specific performance and permanent injunction-Being highest bidder, first offer of plaintiff was not accepted by defendant and further negotiations were held-Then plaintiff made a second proposal, but before its acceptance, same was withdrawn-There is • no impediment in law prohibiting an offer to be withdrawn, but not after its acceptance-There was no valid and legal contract between parties and defendant was not entitled for forefeiture of earnest money deposited by plaintiff-Held: Plaintiff was entitled to withdraw his offer/proposal as same was not accepted by defendant at time of its revocation-Suit for return of earnest money decreed with cost. [Pp. 457 & 458] A to D. PLD 1969 SC 80, PLD 1976 Karachi 277, PLD 1960 Lahore 1419 and PLD 198 Karachi 76 ref. Mr. Khalil-ur-Rehman, Advocate for Plaintiff. Mr. Abdul Rauf, Advocate for Defendant. Date of hearing: 18-4-1995. judgment This suit is for declaration, specific performance and for permanent injunction. The case of the plaintiff as set-up in the plaint is that its proprietoiy concern is, involved in the business of manufacturing M.S. Bars Angles, Tees etc. and that the defendant is a registered limited Company involved in the business of steel pipes. That the plaintiff participated in the tenders to purchase 34,000 meters (approximately 2750 metric ton) of 6" to 18" welded steel pipes lying in the factoiy of defendant at Kotri. The plaintiff paid Rs. 5,00,OOO/- (Rupees five lacs) on 7.8.1988 as earnest money. On 8.8.1988 the bid was opened and the plaintiff was found to be the highest bidder, but the defendant instead of accepting the offer indulged in negotiation with the plaintiff for the enhancement of the rates. Some negotiations also took place between the parties and there was exchange of communication as well. The plaintiff after apprehending that the defendant will forfeit the amount of security deposit/earnest money approached this Court through the above suit. 2. The plaint contains following prayer clauses :- (a) Decree for sum of Rs. 500,000/-. (b) Declaration that withholding of Security Deposit of Rs. 500,000/- by the defendant is unlawful and void. (g) Grant profit at the rate of Bank mark up from filing the suit until refund. (d) Grant permanent injunction restraining the defendant from assignment/Award of the tender for sale of steel pipes to any person or body institution/company pending the refund of security deposit of the plaintiff. (e) (f) 3. In the written statement the defendant has denied the allegations of the plaint. The case of defendant is that the contract was concluded on 4.9.1988 and since the plaintiff failed to performance contract as such the defendant was justified in forfeiting of security deposit/earnest money of Rs. 5,00,000/-. The defendant has prayed for dismissal of the suit with special cost. 4. I have heard Mr. Khalilur Rehman, Advocate for the plaintiff was Mr. Abdul Rauf, Advocate for the defendant. The main thrust of the arguments of Mr. Khalilur Rehman, learned Counsel for the plaintiff is that he defendant never conveyed its acceptance and in absence of such acceptance there is no complete contract thus in the circumstances, there is not .breach of contract and the defendant was not entitled to forfeit the earnest money. He has relied upon the cases reported as Messrs Shalsons Fisheries Ltd. u. Messrs Lohmann & Co. & another (PLD 1982 Karachi 76) and the case of Province of West Pakistan u. Mistri Patel & Co. (PLD 969 S.C. 80). Mr. Abdul Rauf, Advocate for the defendant has justified action of the defendant in forfeituring of earnest money. According to the learned Counsel for the defendant, it is a concluded contract and the plaintiff has committed breach of the same and the earnest money is liable to be forfeited. Mr. Abdul Rauf, Advocate has relied upon the reported cases viz. Mahadeoprasad v. Siemens Ltd. (AIR 1934 Cal. 85) and Chiranjit Singh v. Lar Swarap (AIR 1926 PC 1). 5. No evidence was led by the either side. The order sheet shows that on 22.5.1990 P.W. No. 1 Malik Hussain was partly examined as Ex. 5. On 31.8.1992, following order was passed by consent of both the learned Counsel:- "It is agreed between the learned counsel that evidence in this matter be recorded on the basis of affidavits-in-evidence to be filed with advance copies to the other side by the plaintiff within 10 days and from the side of the defendants within 10 days and from the side of the dependants within two weeks with like copies. The question involved in short, namely, whether the defendant could hold the security deposit placed with the defendant in terms of contract and further whether the defendant suffered any loss irrespective of breach if any on the part of the plaintiff. To come up for evidence in the foregoing terms on 1.10.1992." 6. Again on 1.10.1992 the parties instead of leading any evidence further agreed that the cases be decided on the basis of documents. The Court passed the following order :- "Learned counsel agree hat the short question as reflected in the order dated 31.8.1992 can be decided on the basis of documents which are admitted between them. Such documents are exhibited as Exhibits 5-A to 13. Mr. A. Rauf acknowledges that he has authority to appear and represent the defendant in this case. By consent, adjourned to 22.10.1992 for arguments." 7. In the above circumstances, none of the parties led any oral evidence in the case and the case was argued on the basis of documents brought on record as Ex. 5-A to Ex. 13. These documents were initially filed with the plaint. Mr. A. Rauf, Advocate for the defendant has also signed all these exhibits with endorsement "admitted". For this reason, no need was felt for recording oral evidence of the paries. There appears no illegality in allowing such practice for bringing documents on record, particularly when both the parties have willingly consented. 8. On 3.9.1989 this Court framed the following issues with the consent of the parties :- "1. Whether the offer of the plaintiff duly accompanied with Pay Order No. F/971534 for sum of Rs. 5 lacs dated 7.8.1988 drawn on National Bank of Pakistan, PNSC Branch, Karachi was accepted by the defendant? 2. Whether further negotiation on the already submitted tender before the defendant amounts to the acceptance of the tender ? 3. Whether the defendant is entitled to forfeit the Earnest Money of Rs. 5 lacs accompanied with tender which was not accepted by the Defendant ? 4. Whether the Plaintiff could withdraw the offer by letter dated 7.9.1988? 5. What should the decree be ? 9. My findings and reasoning to the above issues are as follows :- ISSUES NO. 1 AND 2 : 10. Since both these issues are factually related, as such I prefer to discuss both issues jointly. The transaction between the plaintiff and the defendant is started from (Ex. 5-A) which is an advertisement published in daily "Dawn", Karachi dated 27.7.1988 published on behalf of defendant inviting tender from public at large. The plaintiff has offered his tender in response to this advertisement. The following are the relevant terms of Ex.5-A :- "1. 2. 3. On acceptance of the offer 15% of the total price will be deposited with the company by the selected purchaser within 15 days failing which the earnest money shall stand forfeited. 4. The remaining balance will be payable by the purchaser before taking delivery of the pipes provided that all the pipes subject to this contract shall be lifted by the purchaser within 60 days. 5. 6. The Company reserves the right to reject any or all offers without assigning any reason." 11. In response to the abovementioned tender notice, the plaintiff made its offer vide Ex. 6 which is dated 8.8.1988. The rate quoted was Rs. 7,555/~ per metric ton. Alongwith this offer a Pay Order dated 7.8.1988 for Rs. 5,00,000/- (Rupees five lacs) was also enclosed. In para 3 of this letter Ex. 6, it was categorically, mentioned by the plaintiff that if the quoted rate is "accepted they will give a revolving legal letter of credit." However, on opening of tenders on 8.8.1988 the plaintiff was declared highest bidder. 12. Plaintiff in para 6 of his plaint has averred that the defendant instead of accepting the offer in accordance with terms and conditions as laid down in the tender indulged in negotiation with plaintiff to enhance the rate of Steel Pipes. The defendant vide para 6 of written statement has admitted this fact and has further stated therein that although the offer of plaintiff was highest but under the tender inquiry it was not binding on the defendant to accept the offer. The defendant has admitted holding of negotiation. From 8.8.1988 till 4.9.1988 there is nothing on record which may show as to what type of terms and conditions were discussed during the said negotiations held between the plaintiff and the defendant. Both the parties have chosen not to produce any oral evidence to prove such facts. Ex. 8 is relevant to some extent which shows the nature and pattern of the negotiation. This is a letter dated 4.9.988 which contains an offer ad ressed to the defendant by the plaintiff. Through this letter, the plaintiff had increased the rate of steel pipes from Rs. 7,555/- to Rs. 8,000/- per metric ton. Other conditions were also offered which are to some extent not in accordance with the tender notice (Ex. 5-A). There is no evidence as to when this letter Ex. 8 was received by the defendant. On 7.9.1988 the plaintiff withdrew the offer through another letter which was brought on record as Ex. 9 V In this letter, it was again offered to the defendant by the plaintiff that they are willing to purchase the steel pipes at the same rate as of their letter dated 8.8.1988 and that the defendant should convey their "final acceptance" to the plaintiff failing which it will be presumed that the Company is not inclined to sell the steel pipes to the plaintiff. Through this letter; the plaintiff also demanded return of earnest money Rs. 5,00,000/-. 13. The most relevant document for decision of this issue is the letter of defendant dated 8.9.1988 which has been brought on record by the parties as Ex. 10. Appreciation of this letter will resolve the entire controversy. Relevant contents of defendant's letter dated 8.9.1988 (Ex. 10) is reproduced as hereunder :-- "We have received your above referred both letters (dated 4.9.1988 and 7.9.1988) you have given complete details of your submission in your letter dated 4.9.1988 and thereby without any reason you declined to fulfil the same as \ mentioned in your letter dated 7.9.1988. Under the circumstances, in the in interest of justice, we are against giving you an opportunity that if still you are interested to finalize the Agreement in the light of your letter dated 4.9.1988, then please make necessary appropriate arrangement within a period of seven days from the date of issue of this letter else we shall not be responsible or liable for any consequence thereon. Please also note that on failure to comply the same on your part, we shall be freed to assign and awarded the said contract to any person or body else, and your bid security of Rs. 5,00,000/- (Rupees five lacs only) shall be forfeited in our favour, please note." 14. Ex. 10 is sufficient proof of the fact that prior to issuance of acceptance of the offer made by the plaintiff, it was withdrawn through Ex. 9. Both these letters of offer and its subsequent revocation made by the plaintiff are mentioned in the above said letter of the defendant. It is pertinent to note that the plaintiff made offer on 4.9.1988 and withdrew the same within a short period of two days, the third being 6th September, 1988 a day of national holiday is not counted. Through this letter (Ex. 10), the defendant insisted upon the plaintiff to perform on the terms and conditions of the letter of 4th September, 1988 which was revoked by them. This letter of defendant which is Ex. 10 does not in any manner convey acceptance of the tender of plaintiff dated 8.8.1988 offered by plaintiff through Ex. 6. This fact coupled with the fact that subsequent negotiations were held after receiving first offer of the plaintiff is the conclusive proof of the fact that the defendant never accepted offer of the plaintiff made in response to the public notice Ex. 5-A. 15. There is another important aspect of defendant's letter dated 4.9.1988 (Ex. 10) through which the defendant had called upon the plaintiff for "finalization of the agreement in the light of letter dated 4.9.1988". If for the sake of argument this letter of the defendant Ex. 10 is accepted as a confirmed acceptance even then this content of the letter shows that this acceptance was conditional which was to be followed by a written agreement to be executed between the parties. In any manner, the letter of defendant dated 4.8.1988 cannot be termed as absolute and unconditional acceptance of the offer of plaintiff dated 4.9.1988. It cannot be denied that without ommunication of an offer, no contract can arise. Equally, it can also be said that in absence of acceptance of proposal/offer which acceptance should be absolute and unqualified there is no contract. It is the communication of a proposal/offer and intimation of its acceptance which creates a contract. The facts of such transactions are missing in this case. 16. The question under what circumstances an agreement can be called a concluded agreement came up for consideration before several Courts. There are few references which I would like to quote as the facts of these reported cases are to some extent similar to the facts of this case. In the case of Devidatt Ramniranjandas vs. Shriram Narayandas (AIR 1932 Bombay, 291), it was held by a Division Bench of Bombay High Court as follows: " ................................ It seems to me that when a merchant or commission agent sends his quotations or terms of business to other people it is merely an intimation on his part of his readiness to transact business with them on those terms. It is clear that on the mere passing of the letters between the parties a contract as such did not come into existence between the parties. It is conceded, and rightly, that the letters left the parties free and that plaintiffs were free to decline to do any business or carry out any transactions and that the defendants were not bound to send any business to the plaintiffs " 17. In another case, reported as Central Bank Yeotmal Ltd. v. Vyankatesh Bapuji (AIR 1949 Nagpur 286), a learned single Judge of Nagpur High Court held that the offer of the Bank which was never communicated to the defendant who may have come to know of the same after obtaining a copy of the resolution, was not treated as communication of acceptance by the bank. This acceptance was not upheld and the Court declared that there is no concluded and binding contract. This rule was followed by a Division Bench of Lahore High Court in the case of Dr. Azeem Shad v. Municipal Committee, Multan (PLD 1968 Lahore 1419). The question involved in this case was again relating to offer and acceptance and after considering several cases from Indian jurisdiction, the Lahore High Court came to the following conclusion: "The general rule relating to offer and acceptance has always been understood to be that there can be an acceptance of an offer by the communication of the assent of the person to whom the offer is made or by his doing some act which he is required by the terms of the offer to do. Under section 3 of the Contract Act, the communication of proposals and the acceptance of proposals "are to be deemed by any act or omission of the party" proposing and accepting "by which he intends to communicate such proposal" and acceptance. Our attention has not been drawn to any act or omission of the respondent by which it might have intended to communicate the acceptance to the plaintiff. A mere acceptance without, communicating the same cannot be binding." 18. In the case of Messrs Shalson Fisheries Ltd., Karachi v. Messrs Lohmann & Co. and another (PLD 1982 Karachi 76) the issue involved was conclusion and breach of contract. This was a suit for damages arising out of breach of contract by a defendant Company. Section 7 of the Contract Act was interpreted by a learned single Judge of this Court Mr. Saeeduzzaman Siddiqui, J. (as he then was) in the following manner :- " ............................... In terms of section 7 of the Contract Act, in order to convert a proposal into a binding contract; the acceptance to the proposal must be absolute and unqualified. There must be shown to exist a consensus ad idem between the parties with regard to all the terms of contract. A qualified acceptance of a proposal or acceptance of the proposal with variation is not acceptance. It is simply a counter proposal. Such acceptance does not bring into existence a binding contract between the parties...." 19. It has not been denied by the defendant that the letter dated 8.9.1988 was issued after receiving the revocation of proposal made by the plaintiff. In fact, Exhibit-10 clearly shows that this letter was written by the defendant after receiving both the proposal and its revocation (Exhibits 8 and 9). If this letter of defendant dated 8.9.1988 would have been communicated earlier then the letter of revocation, situation would have been different and the defendant may have succeeded in claiming that the agreement was a concluded and binding contract on the plaintiff. The acceptance of the defendant to the offer of the plaintiff was formally made after receiving revocation. Keeping in view the provisions of sections 3, 4, 5 and 7 of the Contract Act, 1872 as well as above quoted law, I am of the considered view that there was no concluded and binding contract between the parties. I, therefore, answer both these issues in negative as not proved. ISSUE NO. 3: 20. The issue whether any party is entitled for forfeiture of earnest money and if so, then upto what extent has been finally settled by the Hon'ble Supreme Court of Pakistan in the case of Province of West Pakistan v. Messrs Mistri Patel & Co. and another (PLD 1969 SC 80). This case was followed by a Division Bench of this Court consisting of Mr. Dorab F. Patel, J. and Mr. Zafar Hussain Mirza, J. (as they then were) in the case of Haji Suleman v. Eastern Rice Syndicate and others (PLD 1976 Karachi 77). In the second case, suit of the appellant was dismissed by a learned single Judge of the High Court by refusing to grant prayers for the return of security deposit/earnest money which was forfeited by the respondent/defendant on the ground that appellant/plaintiff had committed a breach of contract. It was held by the said Division Bench of this Court, as follows :- "Be that as it may, even if it is assumed that the appellant was the defaulting party, in view of the legal position explained above, in my consideration, the respondent could forfeit the earnest money or advance payment only on proof of loss sustained by him. Taking the rule laid down by their Lordships in the above referred Supreme Court case as a guide, it would only be permissible, in the facts and circumstances of the case, to award reasonable compensation subject to the limit of the amount paid under the contract by way of advance. But as stated above, there is no counter-claim set up by the respondent nor is there evidence worth the name brought on the record to indicate as to what should be the reasonable compensation in the circumstances of this case. The espondent has not brought any evidence on the record to indicate at what price the goods were subsequently sold in the market on their release from the Customs Authorities. Nor is there any evidence to show that any loss was sustained on this account. In this absence of such evidence it is not possible to determine such compensation. To dismiss the suit of the appellant would obviously amount to allow the respondent to forfeit the advance merely on account of the alleged breach of contract on part of the appellant, which is contrary to the rule laid down by their Lordships of the Supreme Court. The respondent is, thus, not entitled to retain or forfeit the advance payment even if the breach on the part of the appellant is established " 21. The reported cases relied upon by the learned Counsel for the defendant are not attracted in view of the facts of this case. In the case of Chiranjit Singh, the Privy Council held that the earnest money was part of the purchase price and it was forfeited as the transaction falls through by reason of the fault of failure of the vendee. In the reported case, there was a concluded and binding contract between the parties whereas in this present case I am inclined to take a contrary view, i.e. there was no valid and legal contract between the parties. 22. In the present case, no evidence was led down by the defendant to prove any loss or damage suffered as a result of the alleged breach of contract. Defendant was granted opportunity by this Court on 4th May, 18 th May and again on 18th May, 1993 for clarification of the statement submitted by the defendant for the price received after disposal of the goods in question, but this opportunity was not availed by the defendant. I have already held under Issue No. 1 and that there was no concluded and binding contract between the parties and following the law as laid down in the cases of Mistri Patel and Haji Suleman, I am of the considered opinion that efendant was not entitled for forfeiture of the earnest money deposited by the plaintiff. I accordingly answer this issue in negative. ISSUE NO. 4: 23. None of the Counsel for the parties have addressed this Court on this Issue. It has been proved through documents that first offer of plaintiff dated 8.8.1988 was not accepted by the defendant and further negotiations were held between the parties, as such, the plaintiff made a second proposal but before its acceptance, the same was withdrawn. There is no impediment in law prohibiting an offer to be withdrawn but not after its acceptance. Section 5 of the Contract Act clearly defines such situation where an offer made by the party can be withdrawn. In this connection, it will be very relevant to quote the illustrations given in section 5 :- "A proposes, by a letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards. B may revoke his acceptance at any time before or at the moment when the letter communicating it reaches, A, but not afterwards. 24. In view of the facts of the case and for the law as cited above, the Issue No. 4 is answered in affirmation and I hold that the plaintiff was entitled to withdraw his offer/proposal as the same was not accepted by the defendant at the time of its revocation. ISSUE NO. 5: 25. The plaintiff has claimed six (6) different reliefs through its prayer clause. The question of legal status is not involved in this suit. This is a suit for return of earnest money which was forfeited by the defendant, therefore, there is no ground for making any declaration or granting perpetual injunction. Suit of the plaintiff for return of earnest money is decreed with cost. 26. On 9.1.1988 an amount of Rs. 5,00,000/- (Rupees five lac) was deposited by the defendant with the Nazir of this Court in compliance of this Court's order dated 13.1.1988. The plaintiff will be entitled to withdraw the same amount alongwith the profit, if any, through execution proceedings. In the circumstances, prayer for the grant of profit at the rate of bank mark-up is disallowed. 27. The suit is decreed in the above terms. (MYFK) Suit decreed.

PLJ 1996 Karachi 458 PLJ 1996 Karachi 458 [Original Civil Jurisdiction] Present: RASHEED AHMED RAZVI, J. SAEED ZEHRI-Plaintiff versus NABI BUX ZEHRI and another-Defendants Suit No. 86 of 1994, dismissed on 17.10.1995 (i) Lunacy Act, 1912- —-Ss. 6 and 63-Person and property of a lunatic-Question of--A District Court is empowered to direct inquisition for purpose of ascertaining whether a person against whom a petition has been filed is an idiot or of unsound mind and whether such person is capable of managing himself and his affairs--Any relative of alleged lunatic or any public curator or Government pleader is entitled to apply for inquisition- [P. 462] A & B (ii) Specific Relief Act, 1877- —S. 56-Jurisdiction--Question of~A Civil Court under its ordinary juris­ diction is not competent to declare a person to be lunatic or of unsound mind in a suit brought u/S 4 of Specific Relief Act, 1877 and/or to appoint an Administrator or Manager of his properties. [P. 463] C Mr. Raja Qureshi, Advocate for Plaintiff. Mr. Abdul Waheed Siddiqui and Mr. Abid S. Zuberi, Advocates for Defendants. Dates of hearing: 2nd, 5th and 17th October, 1995. order This order will dispose of the objection raised by this Court as well as the application filed by the defendant No. 1 under Order VII Rule 11 CPC (CMA No. 4493/95). On 2.1.1995, when this case came up for hearing of the injunction application before my learned brother Mr. A.R. Kazi, J. (as he then was) it was observed by him that how this suit is maintainable and hpw the relief sought in the suit can be granted ? However, the case was adjourned at the request of the learned Counsel for the plaintiff to answer the question as raised by this Court. 2. This is a suit for administration for the property and estate of the defendant No. 1. The plaintiff is the real son of the defendant No. 1. Besides plaintiff, the defendant No. 1 has a wife, three other spns and two daughters which fact the plaintiff has admitted in the plaint. The case of the plaintiff is that the defendant No. 1, who is his real father, is aged about 72 years and is suffering from disease of serious nature like hallucination, paranoid, headache, drowsiness, confusion irritable, uncooperative, blood sugar level, diabetic Nueropathy etc., which resulted in mental disorder of the defendant No. 1; That the defendant No. 1 is maintaining a dollar account with the American Express Bank at Karachi and that it has become necessary that the plaintiff or any of his children be appointed as an administrator of the defendant No. 1 to look after him, take decision on his behalf particularly with his finances to control and look after his account. Following is the relief claimed by the plaintiff in the suit :- "(a) to appoint all of the children or any one of them to act as an Administrator of the defendant No. 1, his estate, properties, Bank accounts, with authority to continue the day to day business and work administer the finances of the defendant No. 1 and to employ the same for his benefit. (b) Restrain the defendants, his agents, or any person or persons, bank or banks to withdraw any amount from the bank accounts mentioned above." 3. Mr. Abdul Waheed Siddiqui, Advocate for defendant No. 1 has strenuously argued that the plaint is liable to be rejected as it is barred under section 4 and section 54 of the Specific Relief Act and that the suit is also bad for non-joinder of the proper and necessary parties. He has relied upon the cases of Sadbar Khan v. Amir Hussain and another (PLD 1995 Pesh. 14), Maung Kya Yan and another v. Maung Tha E. (AIR 1936 Rangoon 121) and Munshi Abdul Ghani and another v. Protive Rani Devi (PLD 1952 Decca 450). Mr. Abid S. Zuberi in his well prepared argument has supported the plea of defendant No. 1 that the plaint is liable to be rejected as it is without cause of action as well as it is also barred under the provisions of the Lunacy Act, 1912. 4. From perusal of the contents of the plaint in the above suit, it appears that this is a suit for administration filed by a son for the administration of the estate and properties of the defendant No. 1 who is bis father and is still alive. He has not impleaded wife, other sons and daughters in this suit. It is argued that there is no specific provision in the Civil Procedure Code governing the law for the suits for administration but and that from the perusal of Order XX Rule 13 CPC it indicates that suit for administration generally lies for the determination of the estate and properties of a deceased person. In this regard, Mr. Zuberi has placed reliance on the cases of Yusuf Abbas and others v. Mst. Ismat Mustafa and others (PLD 1968 Karachi 480), Muhammmad Sulaiman Malik and another v. Royal Trust Corporation of Canada and others (PLD 1983 Karachi 38) and the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi & others (PLD 1962 SC 291). 5. The terms "lunatic" has been defined in section 3 of the Lunacy Act (IV of 1912). This law provides for the control and regulation of the person and properties of a lunatic through various forums and procedure. It would be advantageous, if sections 62, 65 and 67 of the said Act 1912 are reproduced hereunder:-- " "62. Power of District Court to institute inquisition as to person alleged to be lunatic. -Where any person is possesse of property and is alleged to be a lunatic, the District Court, within whose jurisdiction such person is residing may, upon application, by order direct an inquisition for the propose of ascertaining whether such person is of unsound mind and incapable of managing himself and his affairs. 65. Inquisition by District Court and finding thereon.-() The District Court, if it thinks fit, may appoint two or more persons to act as assessors to the Court in the said inquisition. (2) upon the completion of the inquisition, the Court shall determine whether the alleged launatic is of unsound mind and incapable of managing himself and his affairs or may come to a special finding that such alleged launtic is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others. ""67. Custody of lunatics and management of their estates.- (1) The Court may make orders for the custody of lunatics so found by inquisition and the management of their estates. (2) When upon the inquisition it is specifically found that the person to whom the inquisition relates is of unsound mind so as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others, the Court may make such orders as it thinks fit for the management of the estate of the lunatic including proper provisions for the maintenance of the lunatic and of such members of his family as are dependent on him for maintenance, but it shall not be necessary to make any order as to the custody of the person of the lunatic." 6. In the case of Habibullah Mian v. Golam Rahman (PLD 1960 Dacca 958), a learned single Judge of Dacca High Court, after considering the case law reported as Mozaharuddin Khan v. Serajuddin Khan (4 CLC 115), Upendra Mohan Ray Chowedhory v. Negendra Mohan Ray Chowdhory (90 1C 878) and the case of Cowasji Bomani Lilaoovala (7 Bom. 15), held that two things are to be determined by a District Judge in an inquisition proceedings under the Lunacy, Act, firstly, that alleged lunatic is of unsound mind of such a degree that he is incapable of managing himself and his properties and that though he might not be dangerous to himself or to the public but is incapable of managing his own affairs. For any further reference, see the cases of Muhammad Amin Khan v. General Public and Others (1991 CLC 394), Allah Rakha v. Shahbaz Ahmed and 6 others (1994 MLD 1160) and an elaborate judgment of Mr. Aftab Hussain, J. (as he then was) in the case of Mst. Jamila Begum v. Awam-un-Nass and others (PLD 1978 Lahore 1376). In a recent case of Sadar Khan v. Amir Hussin and another (PLD 1995 Pesh. 14), a learned single Judge of Peshawar High Court held that it is the Court of District Judge competent to appoint guardian and manager of person and property of a lunatic as per provisions of the Lunacy Act 1912 and that the Civil Courts have no jurisdiction in this matter. 7. The case law referred to by Mr. Abdul Waheed Siddiqui is not relevant in the facts of the present case as the rule laid down in both these cases pertain to a suit filed on behalf of a lunatic through his next friend. In the case ofMaung Kya Yan and another v. Maung Tha E AIR 1936 Rangoon 121), it was held that a suit filed by the next friend in maintainable only if the launatic is such person who has been adjudged to be of unsound mind or a person who is found by the Court., on inquiry that such person is of unsound mind or mentally infirm. Likewise, in the case of Munshi Abdul Ghani and another v. Protiva Rani Devi and others (PLD 1952 Dacca 450), it was held by a learned single Judge of the Dacca High Court that it must be found first, on a properly held inquiry, that by reason of unsoundness of mind or mental infirmity, the person on whose behalf the suit has been filed is incapable of protecting his interest as plaintiff. In the present case, this principle is not involved as the suit has not been filed by the next friend on behalf of a person who is of unsound mind or suffering from insanity. However, it will be pertinent to note that the plaintiff who has admitted that the defendant No. 1 to be of unsound mind and suffering from mental disease should have filed this suit against such defendant through some next friend which care was not taken by the plaintiff. Neither the plaintiff has joined his brothers, sister, and mother as co-plaintiff or as the defendants in the above suit. 8. The Lunacy Act, 1912 was enacted to deal with the person and property of lunatics, idiot and of persons of unsound mind in the same manner as of the law of Guardian and Wards Act, 1890. It was held in the case ofMst. Jamila Begum (Supra) that this Act confers upon the Courts the powers of pater patriae as a father over his children. Section of the Act, 1912 is a saving clause which provides that nothing contained in sections 4 to 36 (Part-II) shall be deemed to affect the powers of any High Court over any person found to be a lunatic by inquisition or over the property of such lunatic, or the rights of any person appointed by such Court as guardian of the person or manager of the estate of such lunatic. It is pertinent to note that sections 62 to 83 falls within Part-Ill of the Act, 1912 through which the District Courts have been authorised to deal with the person and property of a lunatic. By virtue of section 62, a District Court is empowered to direct inquisition for the purpose of ascertaining whether a person against whom a petition has been filed is an idiot or of unsound mind and whether such person is incapable of managing himself and his affairs. Further action of the learned District Courts is dependent on the positive finding as to the fact whether such person is a lunatic. This is the main object of the inquisition as provided in section 62. Section 63 provides that any relative of the alleged lunatic or any public curator appointed under the Succession (Property Protection) Act, 1841 or the Government Pleader as defined in the Code of Civil Procedure is entitled to apply for inquisition. In section 64 it is provided that the provisions of sections 40, 41 and 42 shall regulate the proceedings of the District Court. Section 65 empowers a District Court, if it thinks fit, to appoint two or more persons to act as assessors in the inquisition jproceedings. Subsection (2) to section 65 provides that the District Court shall determine, firstly, whether the alleged lunatic is of unsound mind and in incapable of managing himself and his affairs or that he is capable of managing himself and is not dangerous to himself or to others. In case, if an alleged lunatic is residing fifty miles from the place where the District Court is situated then section 66 provides that the District Court will be competent to issue commission to subordinate Court to make inquisition and to send its report back to the High Court which will dispose of the same in the manner provided under section 65(2). After completion of the inquisition proceedings if the District Court comes to the positive finding then under section 67, the District Court in empowered to make orders for the custody of lunatics and for the management of their estate. The procedure provided in the Lunacy Act, 1912 is comprehensive and exclusively empowers the District Court to declare a person of unsound mind as lunatic and to appoint manager of his person and property. The Legislators have not excluded the provisions as contained in Part-Ill of the Lunacy Act and I am, therefore, of the opinion that it is the District Court which is fully authorised and competent to hold inquiry to declare any person as lunatic and to appoint manager of his person and property. I am further fortified in my view by a case law reported a Rambhabai v. Rukminibai and another (AIR 1957 Madhya Bharat 96) wherein a Division Bench of Indore Bench held that it is the District Judge competent to declare any person to be lunatic and thereafter is empowered to appoint a manager and to entrust to him for management of the estate of the lunatic. 9. For the law as discussed hereinabove and in view of the provisions of the Lunacy Act, 1912 the jurisdiction in a matter, as alleged in the present suit, is vested in the District Courts. Therefore, I am of the considered view that a Civil Court under its ordinary jurisdiction is not competent to declare a person to be lunatic or of the unsound mind in a suit brought under section 42 of the Specific Relief Act, 1877 and/or to appoint any Administrator or Manager of his properties. Therefore, this suit appears to be barred in view of the Lunacy Act, 1912. 10. Today, when this case was fixed for announcement of the order, Mr. Raja Qureshi, learned Counsel for the plaintiff filed a statement on behalf of the plaintiff that he has been instructed to withdraw the suit prior to announcement. He argued that the rejection of plaint may cause some bitterness in the family. Both the learned Counsel appearing for the defendants have not opposed this request of Mr. Raja Qureshi. I, therefore, grant his prayer for withdrawal of suit and thus Suit No. 86 of 1994 is hereby dismissed as withdrawn with no order as to cost. However, the observation made hereinabove, on the question of law will not be effected by withdrawal of the suit. Consequently, CMA No. 4439/95 has become infructuous which is accordingly dismissed. K.K.F. CMA dismissed.

PLJ 1996 Karachi 464 PLJ 1996 Karachi 464 Present: Ms. majida razvi, J. Mst. RASHIDA BEGUM etc.--Plaintiffs versus CHIEF OF NAVAL STAFF etc .--Defendants Suit No. 325 of 1978 admitted on 23.8.1995. Defence of Pakistan Rules, 1971 -- —Rule 121-Sale of "Noise Analysing Equipment" to SUPARCO-Requisitioning by defendant No. 1-Suit for recovery as compensation for loss- Defendant No. 1 could not explain as to why they neglected to trace goods for so long i.e. from 1973 till 1976 when it was requisitioned-Sale notice published in "Dawn", but even then Pakistan Navy did not wake up~Subrule (4) of Rule 121 clearly provides that owner of such goods whose property has been requisitioned will be compensated as the Central Govt. may determine-SUPARCO showed interest in said equipment but due to requisitioning, they changed their stand-Navy, though sent ompensation of Rs. 5,000/-, but after the same having been returned by plaintiff never bothered to settle compensation—Held: In view of efforts made by plaintiff and to ensure his right to compensation he was awarded a decree of Rs. 120.000/- alongwith six percent interest. [Pp. 468,470 to 472] A to D ' Mr. Abrar Hussain, Advocate for Plaintiff. Mr. All Murtaza Hussain, Advocate for Defendants. . Date of hearing: 23.8.1995. judgment This suit has been filed inter alia for recovery of Rs. 200,000/- as compensation for the loss sustained due to requisitioning of "Noise Analysing Equipment" known as "Vibration and Sound Testing Machine" hereinafter referred to as "the said Equipment" by the plaintiff against the defendants or in the alternative against defendant No. 2 who had actually purchased the said Equipment from the plaintiffs. The brief facts, as per the plaint in the suit, are that the present plaintiffs, who are successors-in-interest of late Muhammad Omar Baig, who had originally filed this suit, had purchased the said Equipment in a Grand Auction held by Customs Authorities on 2.8.1975 at Karachi Airport. The said uhammad Omar deposited 25% of the final bid amount on the fall of the hammer and the remaining 75% was paid to the Customs Authorities on 12.8.1975 after the approval of the said sale by the Collector of Customs and delivery of the said Equipment to him. The said Muhammad Omar, after the purchase of the said Equipment ascertained the current price of the sam and also its working from its manufacturer M/s. Bruel and Kjer, Linde Alleir of Denmark vide letter dated 4.9.1975. The said letter was replied by the said company vide their letter dated 5.5.1975 giving the current price of the said Equipment through their representative in Karachi Muskho and Company. After ascertaining full facts and working of the said Equipment, the said Muhammad Omar advertised for the sale of the said Equipment through English daily the "Dawn" on 14.9.1975 and a copy of the same was sent to Navy, Army and the government departments, namely, Director, Hydrography, Deputy Chief of Naval Staff (Supplies), Pakistan Navy, Islamabad, Director, Naval Works Equipment, Islamabad, Naval Headquarters, Islamabad, Director, SUPARCO, Karachi, under his letter dated 25.9.1975. In response to this advertisement, SUPARCO came forward to purchase the same and after some bargaining, the said Equipment was sold to SUPARCO for Rs. 200.000/- and it was also delivered to SUPARCO. The said Muhammad Omar submitted his bill for Rs. 200,000/- to SUPARCO for payment. The delivery of the said Equipment was also acknowledged by SUPARCO vide their letter dated 8.12.1975. After delivery of the said Equipment, the payment of the bill of Rs. 200.000/- remained pending in spite of several reminders. Meanwhile, a letter dated 19.3.1976 was received by the said Muhammad Omar from Commodore Logistics, Pak Navy, Karachi, requisitioning the said Equipment stating that the said Equipment was imported by the Pakistan Navy and was erroneously auctioned by the Customs Authorities. A copy of this letter was also sent to SUPARCO and subsequently the said Equipment was taken away by the Pak. Navy from the custody of SUPARCO. The said Equipment was/is not a secret equipment as is claimed by the Pak Navy, and was available in the open market as is evident from the letter issued by its manufacturer through their local representative Mushko and Company, Karachi. However, after requisitioning the said Equipment, the Naval authorities should have made payment of the price of the said Equipment which was settled with SUPARCO but nothing was paid neither by SUPARCO nor by the Pakistan Navy. The said Muhammad Omar also wrote to judge Advocate General for the payment vide his letter dated 8.4.1976 and also served a legal notice through his advocate which was acknowledged by Pak Navy but no reply was received. That the requisitioning order made under Rule 121 of the Defence of Pakistan Rules, 1971 is without jurisdiction and nullity in law as it is not passed by a competent authority and is illegal, ultra vires, unoperative and — un-warranted by law, hence this suit. Summons were issued and defendant No. 1 and 2 filed their written statements. The defendant No. 1 in its written statement confirmed that the said Equipment was imported by it and that the same was erroneously auctioned by the Customs Authorities and further submitted that they made payment of Rs. 5,000/- to the plaintiff to which he made no protest or any further claim and, as such, it was considered that the same was purchased as per Defence of Pakistan Rules, after paying ompensation. The defendant No. 2 in its written statement while admitting that the said Equipment was sent to them for evaluation and testing, denied the allegation that it was purchased by them. They further denied that any interest was shown in regard to the purchase of the said Equipment and that the bill for Rs. 200,000/- submitted by the said Muhammad Omar, was just a quotation. On the basis of the pleadings of the parties, the following issues were adopted: "1. Whether after completing the formalities in respect of the disputed equipment, which was unclaimed, the Customs Authorities, in a grand public auction held on 2.8.1975 at the Airport auctioned and sold the said equipment, known as "Noise Analysing Equipment" to the Plaintiff for a price of Rs. 5,000/- ? 2. Whether the plaintiff Buyer was a bonafide purchaser for value of the said equipment from the Customs Seller in the auction? 3. Whether after ascertaining the cost-price of the said equipment from its purchaser/manufacturers M/s. Bruel & Kjer in Denmark, the Plaintiff advertised it for sale to the General Public in the Daily Dawn dated 14.9.1975, as also by a separate Circular letter asked the various Government Departments including the Defendant No. 2 (Suparco), the Army and the Pak Navy, whether they were interested in it? 4. Whether in response to the advertisement and the Circular letter, the Defendant No. 2 (Suparco) after bargaining, purchased the said equipment from the plaintiff or a sum of Rs. 200,OOO/- and took delivery of the same from the Plaintiff on 8.12.1975? 5. Whether after the completed contract in respect of the equipment and receiving the Plaintiffs Bill for Rs. 200.000/- the Defendant No. 2 (Supraco) delayed payment of the sale price until it was requisitioned and taken by the Pakistan Navy Under Rule 21 of the Defence of Pakistan Rules 1971? 6. Whether according to the manufactures, the equipment in dispute was not a secret equipment and was saleable in open market the World over? 7. Whether after a completed contract of the sale of goods in question by Public Auction, the Customs Authorities had no right or claim over the said goods (the equipment) much less a right to cancel the auction? 8. Whether the plaintiff is entitled - to a decree for Rs. 200,000/- against the Buyer Le. the Defendant No. 2 with interest at 10% per annum? 9. To what relief is the Plaintiff entitled to?" The plaintiff examined Asghar Ali who is one of the plaintiff/L.Rs and attorney of the plaintiff No. 1. The defendant No. 1 examined Lt. Commander Khalid Zulfiqar posted at Naval Store Depot Dockyard Karachi. Defendant No. 2 examined its Director Mehmood Ali Khan and Mehmoodur Rehman, Law Officer Customs, Karachi. I have heard Mr. Abrar Hussain, learned counsel appearing for the plaintiffs and Mr. Ali Murtaza Hussain, learned counsel appearing for the defendants, and have also gone through the entire record and the evidence adduced. Mr. Ali Murtaza was absent on 23.8.1995 when the arguments were concluded. However, he was allowed to file written arguments on behalf of the defendant. Issue No. 1,2 & 3.---I will deal with these issues together. Asghar Ali in his deposition (Ex. 7) confirmed the contents of the plaint. According to him he used to assist his father in his business. He further averred that in pursuance to the advertisement dated 19.6.1975 issued by the Customs Authorities his father participated in the auction held ~on 2.8.1975 at Karachi Airport and purchased the said "Notice Analysing Equipment" after paying 25 per cent of the price at the fall of the hammer and 75% at the time of final approval and delivery. He further averred that the equipment was purchased to be sold on profit. It was repaired by qualified engineer and to ascertain the price a letter was written to the Manufacturer M/s. Brule & Kjer Lindeallier of Denmark (Ex. 7/2). The said manufacturer replied to their letter and also referred to their agents in Pakistan Le. Mushko & Co. Ltd. Karachi. Meanwhile his father had already advertised for the sale of the said equipment in Daily "Dawn" dated on 14.9.1975. Letters were also despatched to many Govt. Departments including defendants No. 1 and 2 (Ex. 7/6). During this time they received the proforma invoice showing the price of the equipment (Ex. 7/4). Suparco showed interest for the purchase of the same and the equipment was handed over to them and the bill for Rs. 200,000/- was sent as the purchase price. -The bill was never paid. Then a letter dated 19.3.1976 was received from Navy and the letter dated 29.3.1976 from SUPARCO to the effect that the equipment has been requisitioned by the Navy. The bill of Rs. 200,000/- was sent to the Navy also but it was never paid and the suit was filed for the recovery of Rs. 200,000/- with 10% per annum interest and the costs of the suit. This witness was not cross-examined by the defendants. The defendants No. 1 and 3 examined Lt. Commander Khalid Zulfiqar who confirmed in general the contents of the written statement. In cross-examination he averred that no date for the supply of the goods (equipment) was stipulated in the contract. On enquiry in respect of the said equipment they were informed that the equipment was already air lifted as such they started investigating and found that the equipment was sold by the Customs Authorities. However, he admitted that form June 1973 upto August 1975 they did not contact the Customs Authorities to ascertain the position of the goods as they were not aware the goods had arrived at Karachi. He admitted that the said equipment was still in sue of the Pak. Navy. He further admitted that the said equipment was requisitioned by the Pak. Navy under the Defence of Pakistan Rules and averred that Ex. 7/14 was sent by Commander Logistic to the plaintiff to the effect that the matter has been referred to Judge Advocate General Naval Headquarters Karachi and any further correspondence should be addressed to him. He admitted that at the relevant time the price of the equipment in Pakistani currency was Rs. 200,000/- approximately. Mehmoodur Rehman the Law Officer Customs was examined by the Defendants (Ex. 10). He confirmed that in 1975 the Customs Department Air Freight Unit Airport had disposed of the subject equipment through auction. The deposition of the Law Officer Customs confirms that the subject equipment was unclaimed and as such was sold to the plaintiff Muhammad Umar in a grand auction held on 2.8.1975 at the Airport by the Customs Authorities. The defendant No. 1 raised the plea in the written statement that due to wrong description of the equipment in the auction notice as "items of personal effects and electric instruments" the plaintiff purchased it. But nothing has been said in evidence or during arguments. On my querry Mr. Abrar Hasan stated that the boxes containing the eqiupment were open and shown to the bidders at the time of auction. Be that as it may, the defendant could not explain as to why they neglected to trace the goods for so long Le. from 1973 when order was placed and subsequently air lifted till 1976 when it was requisitioned. The sale notice published in Dawn was also sent by the plaintiff to various agents including Navy which (Ex. 7/7) did gave details of the equipment and the name of the manufacturer but even then Pakistan Navy did not wake up. Under the circumstances it can be said that an offer was made by the Customs Authorities which was accepted by the plaintiff for a consideration whereof the contract was completed. The receipt of Ex. 7/4 was not denied. In the circumstances, I answer the issues No. 1, 2 and 3 in affirmative. Issue Nos. 4 and 5:- The plaintiff very clearly stated in his deposition that after advertisement of sale for the equipment in Dawn and the letter Ex. 7/6 the defendant No. 2 indicated their interest and as such the equipment was delivered to them by the plaintiff and after negotiation the defendant No. 2 agreed to purchase the same for Rs. 200,000/- for which the bill was forwarded. The delivery of the equipment was acknowledged by defendant No. 2 on 8.12.1975. This witness was not cross-examined and his deposition remained unrebutted. Lt. Commander Khalid Zulfiqar admitted that the equipment was requisitioned by Pakistan Navy and the delivery was taken from defendant No. 2. Mehmood Ali Khan, the Director of Suparco also admitted that the equipment was brought for inspection and evaluation and on requisition by Pakistan Navy was handed over to them. However he denied the purchase of the same by defendant No. 2. The deposition, documents and the behaviour of the witnesses show a definite interest of defendant No. 2 in the equipment but of course interest without the presence of other essential ingredients of a contract does not create a sale as final. There is no evidence, written or verbal, to prove that the price of Rs. 200,000/- was finally accepted by the defendant No. 2. The offer of sale exists but the acceptance and consideration are missing. Fur­ ther, admittedly the equipment was delivered on 8.12.1975 and the bill was submitted on 30.3.1976 while the requisitioning letter was dated 19.3.1976 and the delivery of the instrument was given immediately thereafter. As such the question of delay in payment of sale price did not arise. In view of the above, the answer to issues No. 4 and 5 is in the negative. Issue No. 6. The querry made by the plaintiff from the manufacturers of the equipment (Ex. 7/2) and the reply from them and their agent in Karachi (Ex. 7/3 and 7/4 respectively) and the proforma invoice (Ex. 7/4/1) giving the prevailing market price of the equipment shows that the manufacturers were ready and willing to supply the said equipment and as such the answer to this issue is in the affirmative. Issues No. 7. The Law Officer Customs, Mehmoodur Rehman, stated in his examination-in-Chief that after coming to know about the equipment in the custody of Suparco, the Pakistan Navy wrote a letter to CBR and on the basis of the information contained in the said letter, the CBR wrote to the Customs Authorities to cancel the auction of the equipment. After the said cancellation, the plaintiff was duly informed by the Collector of Customs and offered the refund of Rs. 5,000/- which was paid by the plaintiff for the purchase of the said equipment. However, Asghar Ali showed his ignorance if the amount was refunded to the plaintiff or not. None of the parties have disputed the powers of the CBR for cancellation of the auction but since the equipment was already requisitioned by the Pakistan Navy under Rule 121 of the Defence of Pakistan Rules, the question whether the CBR was empowered to cancel the said auction or not, did not arise. The plaintiffs have challenged the order dated 19.3.1976 requisitioning the said equipment as illegal, ultra vires, unoperative and un-warranted by law and not having been passed by a competent authority and prays for decree of Rs. 200,000/- against the defendants. ''- Issues No. 8 and 9. Issue No. 8 is whether the plaintiff is entitled to a decree for Rs. 200,000/- against the defendant No. 2 with interest at 10 per cent per ^ annum. As I have already discussed hereinabove, that the plaintiff did submit a bill for Rs. 200,000/- to the defendant No. 2 but since the same was not accepted and acted upon the said contract was never completed. Further, that before the said bill was submitted to the defendant No. 2, the defendant No. 1 had passed an order dated 19.3.1976 requisitioning the said equipment under Rule 121 of the Defence of Pakistan Rules, 1971. Now the question arises that what are the rights and liabilities of the parties if any goods are requisitioned by the Government under the said Rules. "121. Requisitioning of property.--(l) If in the opinion of the Central Government it is necessary or expedient so to do for ensuring the security, the public safety or interest, or the defence of Pakistan, or for securing the maintenance of public order or the efficient conduct of military operations or prosecution of war, or for maintaining supplies and services essential to the life of the community, it may by order in writing requisition any property, movable or immovable, ~\" and may make such further orders as appear to it to be necessary or expedient in connection with the requisitioning: Provided that no property used for the purpose of religious worship and no such property as is referred to in rule 111 or rule 117 shall be requisitioned under this rule. (2) ...................................................... not relevant .................................... (3) ...................................................... not relevant .................................... (4) Whenever in pursuance of sub-rule (2) the Central Government requisitions or acquires any movable property, the owner thereof shall be paid such compensation as the Central Government may determine:" The above sub-rule (4) of Rule 121 clearly provides that the owner of such goods whose property has been requisitioned will be compensated as the Central Government may determine. Under sub-rule (7) of Rule 121, the powers of the Central Government could be exercised by the following persons: "(7). The powers conferred on the Central Government by sub-rules (1), (2), (4), (5) and (6) shall, subject to any general or special order of the Central Government be exercisable also by~ (a) The Commander-in-Chief of the Pakistan Army, the Pakistan Navy, or the Pakistan Air Force; (b) The Formation Commander; (c) The Director General, Defence Procurement, and (d) The Chairman, Pakistan Ordnance Factories Board." As far as the Authority to determine such compensation is concerned has been provided under these rules. Now the question arises if the Central Government or any person inherent with such power had determined a compensation for the goods so requisitioned and the same was paid to and accepted by the plaintiffs. The plaintiff in his evidence which went unrebutted stated that they had submitted bill of Rs. 200,000/- to the Pakistan Navy and had sent reminders but they were informed by a legal notice (Exh. 7/14) that their matter was referred to the Judge Advocate General, Naval Head Quarters, Karachi and as such they should contact him in this respect. He has in unequivocal terms denied any payment and has claimed Rs. 200,000/- with ten per cent interest as compensation/price of the said equipment. Lft. Commander Khalid Zulfiqar in his deposition stated that the plaintiff was offered an amount of Rs. 5,000/- as compensation for the goods in question and a cross-cheque of that amount was sent to the plaintiff, which was duly received and acknowledged by him. He admitted that the value of the consignment in question at the relevant time in Pakistan currency was Rs. 200,000/- approximately. Mehmoodur Rehman, the witness examined by the defendant No. 2 showed his ignorance in regard to the refund of the amount the plaintiff paid to the Customs. While arguments were going on I had inquired from the officer representing the Pakistan Navy if the cheque paid to the plaintiff was encashed. He took out the said cheque from his papers and stated that "this was the cheque" which was sent to the plaintiff. This shows that the cheque, which was sent to the plaintiff Muhammad Umar was returned by him which amounts to nonacceptance of the compensation by the plaintiff. The defendant No. 2 took no pains as to contact the plaintiff and settle the compensation in regard to the equipment. The entire evidence shows that the equipment could be made available by the manufacturers through their agent Mushko & Company Limited, Karachi and the price prevailing at the time has been given in their invoice dated 5.5.1976 as Rs. 120.140/-. Admittedly the plaintiff being a businessman participated in the Custom's auction with the sole motive, to purchase goods from the sanction and after proper examination and if any repairs needed after doing so he will sell the goods with profit. It is very obvious that the Suparco showed interest in the said equipment but due to requisitioning, they changed their stand. The Navy, though sent compensation of Rs. 5,000/- but after the same having been returned by the plaintiff never bothered to settle the compensation. In view of the efforts that the plaintiff made from the date of participation in the auction till the instrument was requisitioned and to ensure his right to compensation of filing the present suit, he is awarded a decree of Rs. 120,000/- alongwith six per cent interest from the date of filing of the suit till payment, however, there will be no order as to costs. (MYFK) Suit decreed.

PLJ 1996 Karachi 472 PLJ 1996 Karachi 472 Present: G.H. MALIK, J. NATIONAL BANK OF PAKISTAN, KARACHI-Plaintiff versus GENERAL TRACTOR AND MACHINERY Co., KARACHI and another-Defendants Suit No. 600 of 1975 decreed on 19.4.1995. (i) Limitation Act, 1908 (IX of 1908)-- —S. 19-Recover--Suit for-Limitation~Question of~Letter dated 10 th August, 1972, is an acknowledgement within meaning of section 19 of Limitation Act-It expressly refers to payment of loan and goes on to say that repayment of loan was not due to wilful negligence of defendant, but due to uncertain conditions prevailing in country-Having said that it makes an offer to pay outstandings as on date of last transaction in 1964. Held: quite clearly, it contains an admission of subsisting liability as well as of jural relationship between parties-Further held: It is an established law that period of limitation in case of a guarantee begins to run from date of demand for payment and in absence of any demand filing of suit amounts to a demand for payment-Suit was filed within period of limitation-Suit decreed. [Pp. 482 & 483] D & E PLD 1970 Karachi 708 and PLD 1971 Kar. 925 ref. (ii) Qanun-e-Shahadat Order, 1984 (X of 1984)-- —Arts. 72 to 76 and 78-Documentary evidence-^Proof of--Contents of a document must be proved by either primary or secondary evidence as provided by Articles 72 to 76 ; secondly, proof of "contents" of a document must be proved under Article 78, by proof of signature and handwriting, thirdly, that genuineness or authenticity of a document may be proved by other evidence on record which court may, in its discretion, consider sufficient proof of its authenticity-Held: Signature on letter in question has been admitted-Letter is concerned with credit facilities given by plaintiffs predecessor-in-interest~Further, letter mentions facts known to defendant only, hence letter is proved by internal evidence and other facts on record. [Pp. 477 & 478] A to C Ms. Sofia Saeed, Advocate, for Appellant. Mr. Ikram Ahmed Ansari, Advocate, for Respondent. Date of hearing: 19.4.1995. judgment The plaintiff had filed this suit for recovery of Rs. 30,43,043.05 on account of various credit facilities granted by it to Defendant No. 1. The case of the plaintiff, as stated in the plaint, is that its predecessor in interest, Bank of Bhawalpur, granted to the General Tractor and Machinery Co. Cash Credit (Hypothecation of Account) amounting to Rs. 1,40,010,.62; Cash Credit (Pledge Account) amounting to Rs. 2,53,615.35; and loan against Import Bills amounting to Rs. 5,26,229.28. It is alleged that defendant No. 1 took over the assets and liabilities of General Tractor and Machine Co. and, consequently, executed three promissory notes all dated 21st December, 1962, for Rs. 1,40,010.62, Rs. 2,53,015/35 and Rs. 5,26,229/88, respectively in favour of the said bank; that the defendant No. 2 executed a guarantee dated the 19th February, 1963, as security for payment of the amounts due by defendant No. 1 to the said bank; that the defendants have admitted their liability to pay but have failed to pay the amount due from them to the plaintiff in spite of various demands by the plaintiff. The defendants in their joint written statement have alleged that the suit is barred by limitation because the account pertains to the year 1962 and the business dealings of defendant No. 1 with the plaintiff had closed in 1964; that the suit has been filed without lawful authority, that the promissory notes were signed in blank and have been filed in without giving any consideration; and that the guarantee is without consideration. They have also denied their liability to pay any amount to the plaintiff. Upon pleadings of the parties, the following issues were, by consent of the parties, framed:- (1) Whether the suit is time barred? (2) Whether the suit had been filed without any lawful authority? (3) Whether the promissory notes were signed in blank and are as such not binding on the defendants? (4) Whether the guarantee is without consideration and not binding on the Defendants and is the same under stamped? (5) To what relief, if any, is the plaintiff entitled? The plaintiff has produced certain documents which have, by consent, been admitted in evidence, but none of the parties has examined any witness. They have agreed that the suit he disposed of on the basis of the record as it is without any oral evidence. I have examined the record and the proceedings and heard the learned counsel for the parties. My findings on the issues are as follows:- Issues No. 1. Ms. Sofia Saeed, learned counsel for the plaintiff, submits that defendant No. 1 had executed three promissory notes (Ex. 7, 8 and 9) on 21st December, 1962, made part payments on 9th January, 1964, 26th February, 1964 and 25th March, 1968; acknowledged its liability by letters dated 29th August, 1966, 21st December, 1967,15th February, 1968, 25th March, 1968, 20th June, 1969, 9th October, 1969, 12th November, 1970, and 10th August, 1972; and that the part payments made by the defendant No. 1 on the 26th February, 1964 and the 25th March, 1968, have been acknowledged by it by its letters dated the 26th February, 1964 (Ex. 12) and the 25th March, 1968 (Ex. 20) respectively. She further submits that the above part payments and acknowledgements were made successively before expiry of the period of limitation and had the effect of extending such period so that the suit having been filed on the 2nd August, 1975, i.e. within three years from the letter dated the 10th August, 1972, (Ex. 24) is not barred by limitation. Mr. Ikram Ahmed Ansari, the learned counsel for the defendants, does not contest that the defendant No. 1 has acknowledged its liability and made part payments as stated above except that, according to him, (i) the contents of the letter dated the 10th August, 1972, have not been proved and, in any case, the letter does not amount to acknowledgement, (ii) part payment must be acknowledged in writing, and (iii) acknowledgements by defendant No. 1 do not bind defendant No. 2. With regard to the proof of the contents of the letter dated the 10th August, 1972, it may be noted that it is specifically alleged in para 6 of the plaint that the defendants by their letters, including the letter in question, a copy whereof is annexure "S" to the plaint, acknowledged their liability; and the defendant's reply, in para 9 of their written statement is:- "That the paragraph No. 6 of the plaint as framed is denied. It is submitted that the said letters do not amount to an acknowledgment of the alleged debts and liabilities." The first sentence of para 9 of the written statement is entirely vague and meaningless and is, in fact, an example of the utter frivolity in pleadings which, unfortunately, has become prevalent and needs to be curbed. There si, however, no denial, in para 9 of the written statement, of the signature on, and the contents of, the letter of 10th August, 1972. The defendants must, therefore, be taken, in view of the provisions of Order 8, rule 5, C.P.C., to have admitted the signature on, and the contents of, the letter. That being so, it was not necessary for the plaintiff to prove either the signature on or the contents of the letter in view of Art. 103 of the Qanoon-e-Shahadat Order 1984, which provides: - "No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings. Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." Notwithstanding the above position, the learned counsel chose, at the time of admission and denial of documents, to refuse to admit the contents of the letter "for want of knowledge", while admitting the signature of defendant No. 1 thereon. This was indeed unfortunate, to say the least, because, in view of their admission in the written statement, the purported refusal, on the part of the defendants, to admit the contents of the letter was vexatious and inconsequential. Besides, there is nothing on the record to show why the defendants should not be bound by the admission in their written statement; and, indeed, in view of that admission, they are estopped from denying the contents of the letter. Even otherwise, in my opinion the contents of the letter have been sufficiently proved. Articles 72 of Qanoon-e-Shahadat Order, read with Articles 75 and 76 thereof provide that the contents of a document must be proved by primary evidence unless secondary evidence is admissible for any of the reasons enumerated in Article 76, in which case such contents may be proved by secondary evidence; and "primary evidence' has been defined by Article 73 as "document itself produced for the inspection of the Court." Proof of "contents" of a document, primary or secondary, is, however, not proof of its genuineness or authenticity. It is, therefore, necessary, as provided by Articles 78 to 84 of the Qanoon-e-Shahadat Order, which apply to both primary and secondary evidence, that a document must be proved in the manner provided for in those Articles. Of those Articles, only Article 78 is relevant for the purpose of this case. It provides:- "If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting." Art. 78 does not prescribe any particular mode of proof. A document may, therefore, be proved by any means recognised by Qanoon-e-Shahadat, which, in the circumstances of the case, are considered by the Court, in its discretion, sufficient. Further, the authenticity of a document may also be proved by reference to the contents thereof; in other words, the internal evidence afforded by the contents is accepted as authentication e.g. when a document states facts and circumstances which are found to be accurate and which could have been known only to the person to whom the authorship is attributed. See Sarkar on Evidence, 13th ed. Vol. 2, page 674. In Mobarik All Ahmad v. State of Bombay (AIR 1957 S.C. 857) the contention was that certain letters and telegrams were held, by the lower Courts, to have been proved on legally inadmissible material; and it was held, at page 864,-- "Most of the letters from the appellant relied upon bear what purport to be his signatures. A few of them are admitted by the appellant. There are also few letters without signatures. Both the complainant and Jasawala speak to the signatures on the other letters. The objection of the learned counsel of the appellant is that neither of them has actually seen the appellant write any of the letters nor are they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of the signatures. Learned trial Judge as well as the learned Judges of the High Court have found that there were sufficient number admitted or proved letters which might well enable Jasawala and the complainant to identify the signatures of the appellant in the disputed letters. They also laid stress substantially on the contents of various letters. In the context of the other letters and telegrams to which they purport to be replies and which form the chain of correspondence, as indicating the genuineness of the disputed letters. Learned counsel objected to this approach on a question of proof. We are, however, unable to see any objection. The proof of the genuineness of a document is proof of the authorship of the document and is proof a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject matter of chain of correspondence, to speak to its authorship. In an appropriate case the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship. We are unable, therefore, to say that the approach adopted by the Courts below in arriving at the conclusion that the letters are genuine is open to any serious legal objection. The question, if any, can only be as to the adequacy of the material on which the conclusion as to the genuineness of the letters if arrived at." Following the above case, Bijayesh Mukherjer, J. of Calcutta High Court held in the case of S.W.F. Product Pvt. Ltd. v. Sohanlal Bagla (AIR 1964 Cal. 209) at p. 213:- " .......... the consignment notes have not been proved in accordance with law: Section 67 of the Evidence Act, I of 1872. But that is of little consequence. Apart from their forming part of the admitted brief of documents . . . the transactions the consignment notes embody are admitted by both parties. So the doctrine of authentication by contents comes into play and these documents are proved by internal evidence afforded by their contents found to be correct on evidence aliunde." In the case of Agro Marketing Corporation Ltd. v. Pakistan (PLD 1982 Lahore 20), Muhammad Afzal Lone, J. held that the proposition that the proof of signature on a document proves its contents as well was "too sweeping to be accepted" and that the circumstances of a case may not call for such an inference. He went on to observe that :- "It is always for the Court to see in the light of the facts and circumstances in each case, as to what weight is to be given to each piece of evidence and whether or not by the proof of the signatures, the contents of a document also stand proved." The rule as to proof of a document, therefore, is that, firstly, the contents of a document must be proved by either primary or secondary evidence as provided by Articles 72 to 76 of the Qanoon-e-Shahadat; secondly, that proof of "contents" of a document is not proof of its authenticity or genuineness which must be proved, under Article 78, by proof of the signature and handwriting; thirdly that the genuineness or authenticity of a document may be proved by any of the methods recognised by Qanoon-e-Shahadat or by reference to its contents or other evidence on record which the court may, in its discretion, consider sufficient proof of its authenticity or genuineness. The letter of 10th August, 1972, may now be considered in the light of the above rule. The signature on the letter has, of course, been admitted. The letter is concerned with the credit facilities given by the plaintiff predecessor-in-interest to defendant No. 1 and the giving of those credit facilities is not in dispute; and it is part of a chain of letters written by defendant No. 1 to Plaintiff, the remaining letters being admitted, wherein the defendant No. 1 has admitted the transaction, i.e. the credit facilities, as well as its liability. Further, the letter mentions facts which could not have been known to any other person except the defendant as when it talks of the reasons for the failure of the defendant to repay the loans. Finally, the letter has been admitted in the written statement. Therefore, in the words of Bijayesh Mukherji, J. in the Calcutta case cited above, "the doctrine of authentication by contents comes into play" and the letter is proved by internal evidence. It is also proved by other facts and circumstances on record mentioned above. Mr. Ansari has cited the case of Muhammad Zaman & others v. Abdul Malik Khan and 7 others (PLD 1991 S.C. 524) wherein it was held that an acknowledgment has necessarily to be made in writing signed by the party against whom any property or right is claimed. In that case, on fact no such writing was available. The case, therefore, is of no assistance to Mr. Ansari. It is, thus, clear that the defendants having admitted the letter dated the 10th August, 1972, }ts proof was not necessary and that, in any event, it has been sufficiently proved. The question whether the letter amounts to acknowledgment or not may now be examined. For facility of reference, it is reproduced below:- "The General Manager, Bank of Bhawalpur, W.P.I.D.C. House, Moulvi Tamiz-ud-Din Road Karachi Dear Sir, Apropose our verbal discussions held in your office on 9th August, 1972, in connection with payment of loans we deem it necessary to further clarify the position in writing. You would appreciate the delay caused in settling down the issue cannot wholly be attributed to our wilful negligence. It has rather happened per force of uncertain conditions prevailing in the country for the last several years. Though the conditions are not still established to help restoring the normal functions of every day economic life yet we feel that our indomitable "will to survive" will not fail us and you. The accumulative effect of disturbances, economic problems has miserably dragged the Company into economic shambles. The liabilities of the Company created in the ordinary course of business now look abnormally too big to discharge under the changed circumstances. In all fairness the solution lies in mutual co-operation. We take pride in extending our hand of co-operation first. As you know the business was closed in the year 1964. At that time certain amount inclusive of normal interest, was payable by us. How the dealings were closed in the year 1964? It has become the story of the past and to narrate the details here will be of no use to anyone of us. We now straightaway offer the following proposal to settle the issue: (i) We offer to pay the outstandings inclusive of interest at the time of last transaction between us in 1964: (ii) The arrears, whatever may be determined amongst us, at the time of our last transaction in 1964 shall be payable at the rate of Rs. 1.0 lac per year. The first yearly instalment of Rs. 1.0 lac will be paid in the month of February, 1973. (iii) No interest whatsoever, shall be charged on the amount held payable throughout the entire period of repayment. (iv) For the safeguard of the interest of the Bank we are prepared to get mortgaged the agricultural land in the name of the Company of the value of the liabilities referred above in favour of the Bank as a security. It would be an equitable mortgage without possession and usufruct. Before we close this offer we have to appraise you of the situation that has come to such a pass as it is impossible for us to propose an offer better than the proposed one. We hope after considering all the circumstances you would very kindly accept the offer and oblige us. Thanking you, Yours faithfully for GTMC Limited, (Sardar Rashidullah) Khan Director Mr. Ansari contends, relying on the case of Messrs Yacoob Habib Kaliya v. Messrs. A.A. Sattar (PLD 1958 (W.P.) Karachi 534), that the letter does not amount to an acknowledgment. In that case the buyer demanded from the seller certain amounts of money by way of damages and refund of deposit, for the seller's failure to deliver the goods, and the seller wrote in reply, inter alia,- "As you have committed a breach of contract by not lifting the contract goods inspite of repeated request both oral and written, you are not entitled to claim Rs. 1,186-14-0 from my client. On the contrary you are liable to my client in damages for not taking delivery of the goods due to downward trend of the market." Wahiduddin Ahmed, J. (as he then was) held that the letter did not amount to an acknowledgment and observed:- "It seems to me that an admission in writing cannot be treated as an acknowledgment unless it is in the nature of an unqualified acknowledgment of a subsisting liability. The mere fact that a party has referred, while denying liability, to an agreement on the basis of which the dispute has arisen between them, will not render such reference an acknowledgment within the meaning of section 19 of the Limitation Act. The language of section 19 of the Limitation Act in this respect is very clear. It does not merely require that there should be an admission about the existence of contract but also requires that there must be acknowledgment of liability in respect of such contract." The learned Judge further observed that Explanation I to section 19 of the Limitation Act:- "applies to such cases where there is an admission that a debt is due but the refusal is based on such grounds which don't amount to denial of liability." Miss Sofia Saeed, on the other hand, contends that the letter of 10th August, 1972, is an acknowledgment and relies on Messrs. M.G. Kadir & Co v. Abdul Latif (PLD 1970 Karachi 708) and Harchandrai v. The Popular Metal Works (PLD 1971 Karachi 925) both of which were decided by Division Benches of this Court. In M.G. Kadir's case, the suit of the Respondent for recovery of Rs. 20,500/- with interest thereon, on account of loan given to Appellant on 13th July, 1948, was held to be within the period of limitation on account of part payment and acknowledgment of liability. The Appellant/Defendant had written to the respondent/plaintiff, "you are no doubt correct in stating that there is a credit balance of Rs. 20,500/- in your personal account" but claiming that on taking into account various matters and accounts of their business it would be seen that "the net position would be a debt (sic) balance against you and not a credit balance in your personal account." It was held that the letter amounted to an acknowledgment because it expressly admitted credit balance of Rs. 20,500/- in the personal account of the defendant in the books of the appellant and proceeded to set off that balance against certain claims against the respondent. Noorul Arfin, J. ( speaking for the bench, stated, upon exhaustive analysis of cases,- "The expression "acknowledgment' itself has not been defined in the Limitation Act but we may accept the definition followed by the courts in England as well as by the High Courts in India and Pakistan, given by Fry, L.J. in Green v. Humphreys. According to this definition, an acknowledgment is an admission by the writer that there is a debt owed by him. Proceeding further, Fry, L.J. observed that in order to take the case out of statute of limitation, there must, upon the fair construction of the letter, read in the light of the surrounding circumstances, be an admission that the writer owes the debt. Next, some rules have to be observed in construing a document which is set up as an acknowledgement of liability. One principle is, that the limitation Act being a statute in derogation of the right to sue, exceptions in the Act must be construed liberally. A writing claimed to be an acknowledgment must, therefore, be interpreted liberally, so as to maintain the right to sue rather than in negation or derogation of such right Another rule which has to be kept in mind is that an acknowledgment, like any other document should be construed according to the intention of the parties but this intention is the intention as revealed by the language of the body of the deed. If the deed is ambiguous surrounding circumstances may be looked into ...." and went on to hold that the test to determine whether or not a writing amounts to an acknowledgment is:- (i) Whether there is an admission of liability or of jural relationship. (ii) Whether the admission is relatable to a subsisting liability or jural relationship, so that, in the latter case, on ascertainment of facts constituting the jural relationship, as in the case of accounts between the parties, a debtor or liability shall be found to exist against one or the other of parties. This admission may be evident from the language of the writing itself, or may be inferred by implication, or by ascertainment from the surrounding circumstances if there is any ambiguity in the writing." The decision in Kaliya's case (cited above) was not followed was, in fact expressly dissented from. The case of Harchand Rai was decided by a Division Bench consisting of Qadeeruddin Ahmed C.J. and Marri, J. In that case the defendant had written to the plaintiff:- "Our Income-tax Officer required some permanent evidence in support of the financial aid of Thirty five thousand given by your goodself for the construction of Shabina Hotel last accounting year" and asked him to send either his balance sheet or a certificate in prescribed form, showing that he had given a loan of Rs. 35,000/- to the defendant. The letter, following the test laid down inM.G. Kadir's case, was held to amount to an acknowledgment because it was evident from it that the defendant was conscious of existing liability against him and because, considered with other documents produced in evidence, it amounted to acknowledgment. The decision in Kaliya case was not followed. Applying the test to the present case, it appears to me that the letter dated the 10th August, 1972, is an acknowledgment within the meaning of section 19 of the Limitation Act. It expressly refers to payment of loan and goes on to say that the delay in "settling down the issue" i.e. repayment of the loan was not due to wilful negligence of the defendant but due to uncertain conditions prevailing in the country. It proceeds further to say that the liability of the defendant had grown "to big to discharge" and that the solution lay in mutual co-operation between the parties; and having said that it makes an offer to pay the outstanding as on the date of the last transaction in 1964. Quite clearly, it contains an admission of subsisting liability as well as of jural relationship between the parties. Besides, the previous letters of the defendant, referred to above, are all, admittedly, acknowledgments; and the letter in question is a link in the chain of letters containing acknowledgment of liability of the defendant No. 1. Mr. Ansari submits that the letter is merely an offer to settle the matter of payment of dues of the plaintiff in the manner set out in it. It is true that the letter contains an offer to pay the amount outstanding as in 1964 but that does not detract from the clear acknowledgment of liability which, on the language of the letter, was larger than that outstanding in 1964. Mr. Ansari then submits that part payment, in order to have the effect of extending the period of limitation under Section 20 of the Limitation Act, must be acknowledged in the handwriting of, or in a writing signed by, the person making the payment; and relies on Nabodwip Chandra Fodder and another v. S.D. Ahmed (PLD 1969 Dacca 629) and United Bank Ltd. v. Ali Muhammad B. Rajani (1994 CLC 173). There is no cavil with the proposition of law but the fact is that part payments made on the 26th February, 1964, and the 25th March, 1968, have been acknowledged by the defendant No. 1 by the letters which are exhibits 12 and 20, respectively, whereby the defendant No. 1 had forwarded cheques to plaintiff. It is finally submitted by Mr. Ansari, relying on the case of Commerce Bank Ltd. v. Messrs. Crescent Paint Colour and Varnish Works, Ltd. (PLD 1975 Karachi 504), that acknowledgments and part payments by defendant No. 1 do not bind the defendant No. 2 and, therefore, cannot extend the period of limitation against him. Once again, there can be no cavil with the position of law but the argument overlooks the fact that by the guarantee (Ex. 10) the defendant No. 2 had undertaken to make payment "on demand" and it is not the case of the defendant No. 2 that any demand _ was made by the Plaintiff, prior to the filing of the suit, for payment under the guarantee. It is an established law that the period of limitation in the case of a guarantee such as the one in this case begins to run from the date of demand for payment and that in the absence of any prior demand, the filing of the suit amounts to a demand for payment. In the circumstances, the suit as against both the defendants was filed within the period of limitation. Issue No. 2 This issue was admittedly decided by the order dated 14th November, 1978. Mr. Ansari, therefore, does not press it. Issue No. 3 The burden of this issue lies on the defendants but they have led no evidence. The issue is, therefore, decided against the defendants. Issues No. 4 The burden on this issue also lies on the defendants but they have failed to produce any evidence and no argument has been advanced by Mr. Ansari on the issue. In any event, the grant of credit facilities to defendant No. 1 is not in dispute. The guarantee was, therefore, evidently, for consideration. The issue is answered accordingly. Issues No. 5 Mr. Ansari does not question the amount of money claimed by the plaintiff against defendant No. 1 except to say that the plaintiff is not entitled '"" to claim penal interest because there is no agreement between the parties to pay such interest. However, Miss Sofia Saeed says that the plaintiff has not changed any penal interest and Mr. Ansari has made no attempt to show the contrary. The argument is, thus, without any substance. As for the defendant No. 2, Mr. Ansari says that he has died. Miss Sofia Saeed says, in reply, that notwithstanding the alleged death of defendant No. 2, the suit can proceed against him because no intimation of •his death has been given by the person nominated by him for the purpose under Order 8, C.P.C., nor has any application been made by any one to bring his legal representatives on record. In support of her submission she has relied upon a case reported in 1972 MLD 490. The submission of Ms. Sofia Saeed k obviously correct and the death of defendant No. 2 is no bar to the decree being passed against him in the circumstances of the case. Mr. Ansari has further argued that the guarantee (Ex. 10) is only for Rs. 10;00,000/-, whereas the claim in the suit is for over Rs. 30,00,000/-; and that the decree against defendant No. 2 can only be passed to the extent of the amount of guarantee. It will be seen, however, that defendant No. 2. guaranteed to the plaintiff repayment of Rs. 10,00,000/- together with interest," commission, charges and other expenses connected therewith. The claim of the plaintiff is, in fact, for the amount of credit amounting to about 1 Rs. 10,00,000/- together with interest thereon. The guarantor is, therefore, liable for the amount claimed against him in the suit. In the circumstances, the plaintiff is entitled to a decree against the defendants as prayed. The suit is decreed accordingly. Thus, hopefully, ends the saga which began 20 years ago in 1975 when he suit was filed. The summons was not served on the defendants till August, 1977 i.e. two years after the suit was filed. Another year elapsed, apparently in connection with the proceedings for directions, before issues were settled on the 13th October, 1978, and it was ordered that the case would come up for hearing of preliminary issue on the 21st November, 1978. In the meantime, documents were admitted. On the 21st November, 1978, the case was partly heard and was adjourned to January, 1979 because the parties wanted to negotiate a settlement. On three occasions thereafter the hearing was adjourned at the defendant's request and then, sometime in April, 1979, the plaintiff made an application for amendment of the plaint. That application came up for hearing eleven occasions between April, 1979 and September, 1981 when it was finally granted. The suit then came up for evidence for the first time on the 20th December, 1989 i.e. more than 14 years after it was filed; and in the meantime no mention was made of the preliminary issue. The hearing was adjourned on that date and on 12 subsequent dates until the 31st March, 1991, when the plaintiffs side was closed because it did not wish to lead any evidence except in rebuttal, if necessary. The adjournments were obtained on four out of 13 occasions on the ground that the parties were negotiating settlement out of court. The case then came up for the defendant's evidence on 2nd May, 1991, but was then and on subsequent dates of hearing adjourned until on the 19th November, 1991, the counsel for the defendants stated that he had no instructions; and, consequently, the side of the defendant closed. Thus, a period of six months elapsed in an attempt to record the defendants' evidence, which, in the event, was fruitless. The case thus entered the final stage of arguments and came up for hearing on no less than nineteen occasions between the 31st December, 1991, and the 19th April, 1995, when the hearing concluded. The hearings were more often than not adjourned during this period at the instance of one or the other of the parties. To summarise, it took two years to have the summons served; another one year before the issues were framed; and two and half years to hear and dispose of the plaintiffs application for amendment. Thereafter no proceedings took place for more than eight years. A period of 16 months was taken up for recording plaintiffs evidence and in the end the plaintiff chose not to lead any evidence; and another period of eight months was consumed for recording the evidence of the defendants without any result because they /—-did not eventually produce any evidence and their side was closed. Finally, it took almost three and half years to hear the arguments. The above record, I think speaks for itself and is a sad commentary on the present state of affairs which needs to be rectified before long. I would only observe, in this connection that the fault lies not so much with the system but with the way in which all concerned contribute to the delays most of which are not unavoidable. (MYFK) Suit decreed.

PLJ 1996 Karachi 485 PLJ 1996 Karachi 485 Present: G.H. MALIK, J. UBL~Plaintiff versus SHAHRYAR TEXTILE MILLS, etc.-Defendants Suit No. 280 of 1993, dismissed on 31.5.1995. (i) Competency of suit- —Where directors of plaintiff are empowered to exercise all powers of Company and to authorise any Manager or officer to perform their authorities, of such Manager or officer has obviously been given power of attorney to sign the plaint and file suit—Held: Requirements mentioned above have been met, suit has, therefore, been competently filed. [P. 488] A & B (ii) Contract Act, 1872 (IX of 1872)-- —-S. 2(d) and S. 127 read with illustration (c)--Whether a guarantee for part consideration is void-Question of-If a loan is given by a creditor to Principal borrower at the behest of surely, that in terms of section 2(d) and 127 constitutes sufficient consideration-Consideration for guarantee, was, therefore, advances granted by plaintiff in past as well as in future-­ Held: Guarantee is good as to both past and future transactions-Said guarantee in question was given for sufficient consideration and not void. [Pp. 492 & 493] D & E (iii) Contract Act, 1872 (IX of 1872)-- —-S. 130~Guarantee-Revocation of-It is stated that defendant No. 4 had informed Pakistan Banking Council that he would not be responsible for liabilities of defendant No. 1, .vhereas Pakistan Banking Council was not party to guarantee, secondly that would not amount revocation of guarantee-Held: Under section 130, a guarantee can be revoked only as to future transaction and there were no future transaction after defendant wrote letters to plaintiff. [P. 493] F (iv) Contract Act, 1872 (IX of 1872)-- —S. 145 read with Companies Ordinance, 1984-S. 318-Section 145 of Contract Act provides that in every contract of guarantee, there is an implied promise by principal debtor to indemnify surety and surety is entitled to recover from principal debtor whatever sum he has rightfully paid under guarantee and section 318 of Companies Ordinance provides that an order for winding up of a company operates in favour of all creditors and contributories of company-Held: If, therefore, defendant becomes liable to pay by virtue of his guarantee, surely, he would be entitled to claim payment from liquidator of company. (P. 489] C (v) Contract Act, 1872 (IX of 1872)-- —S. 145 read with S. 133-Discharge of guarantee-Making of claim before liquidator do not amount to forgo claim against sureties-There is no such principle or authority that if petition for winding up of a firm is not opposed, his surety is discharged-There is nothing on record to show that approval for "revised repayment schedule" was ever accorded by plaintiff-There was, therefore, in fact, no variation in repayment schedule-S. 133 provides that variation without consent of surety would have effect of discharging surety, whereas, guarantee admittedly contains such consent and therefore not discharged. [P. 494] I (vi) Discharge of Surety- —Whether a surety is discharged when principal debtor firm is ordered to be wound up--Question of-Winding up order makes it clear that plaintiff did not give up its pledge but, has preserved right as pledgee to proceeds of sale subject only to determination of specific quantity of bales which may be found to have been pledged to it-Held: Defences set up are far from plausible-Defendant No. 4 not entitled to leave to defend suit-­ Application dismissed. [P. 495] J, K, L. Ms. Sofia Saeed, for Plaintiff. Mr. Baqar Maqbool, for Defendant No. 1 to 3. Mr. Khirat H. Shamsi, for Defendant No. 4. Date of hearing: 31.5.1995. order This is an application by Defendant No. 4 for leave to appear and defend the suit. Mr. Shamsi submits, firstly, that the plaint has not been signed by an authorised person and the suit is, therefore, not competent because the person signing the plaint has not been authorised by power of attorney to file the suit. He relies on Millat Tractors Ltd. v. Ch. Tawaklullah (NLR 1991 A.C. 432), Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lahore 381), Khan Iftikhar Hussain Khan ofMamdoj v. Messrs Ghulam Nabi Corporation Ltd. (PLD 1971 S.C. 550), and Messrs Muhammad Siddique Muhammad Umar v. The Australiasia Bank Ltd. (PLD 1966 S.C. 684). Ms. Sofia Saeed, on the other hand, submits that the defendant has taken this plea for the first time in the additional affidavit in rejoinder; and that he was not entitled to do so by virtue of Rule 75(2) of the Sindh Chief Court Rules which provides that an affidavit in rejoinder must be confined to matters of reply. The submission of Ms. Sofia Saeed is obviously right. The defendant was not entitled to raise this question by way of affidavit in rejoinder. Mr. Shamsi submits, in reply, that he was entitled to raise this question because it is a question of law. The submission is not correct because whether or not power of attorney had been executed in favour of the person who has signed the plaint is a question of fact and not of law. In any event, the record shows that in response to the objection raised by the office, the Plaintiff produced the original power of attorney for inspection by the office and filed a photocopy thereof which is at Page 271 of the record. Paragraph 9 of that power of attorney authorises Mr. Nasrul Hasnain son of Syed Zakawat Hussain "to commence, prosecute, continue and defend all actions, suits or legal proceedings". Ms. Saeed has to-day produced a copy of the Memorandum and Articles of Association of the Plaintiff. By Article 98 of the Articles of Association, the management of the business of the Company has been vested in the Directors and they have been empowered to do all such acts and things as may be done by the Company. By Article 99(4) of the Articles, the directors have >een empowered, inter alia, to "authorise or empower the Manager or any other officer for the time being of the company to exercise and perform all or any of the powers, authority and duty conferred or imposed upon the Directors by the Memorandum and Articles of Association subject to such restrictions and conditions, if any, as Board may think proper." Again, Article 101 of the Articles of Association provides that the directors may at their discretion delegate to any Manager or other officer such powers as they are not expressly prohibited from delegating for such time and subject to such condition and restriction as they may think expedient. It will, thus, be seen that the directors of the Plaintiff are empowered to exercise all the powers of the company which includes the power to file a suit. They are further empowered to authorise any Manager or officer of the company to perform all or any of the powers and authorities of the directors, and to delegate any of the powers to any Manager or officer of the Plaintiff. The power of attorney has obviously been given in exercise of the powers granted to the directors by the Articles of Association. In the case of Muhammad Siddiq Muhammad Umer v. The Australasia Bank Ltd. (PLD 1966 S.C. 684) it was observed, at Page 695, as follows:- "It was apparent from the pleadings that the suit was being instituted by a constituted Attorney of a public limited Company. He could only do so if he was duly authorised in that behalf and occupied one or other of the offices mentioned in Rule 1' of Order 29 of the Civil Procedure Code. A copy of the power of attorney had been produced which showed that Muhammad Khan had been empowered in that behalf but the question still remains to be ascertained as to whether those who gave him that power were competent to do so, as the authority was on behalf of the public limited company. For this purpose a reference to the Articles of Association of the Company was certainly necessary to see whether the Directors were competent to delegate such power. It was not necessary to see whether the Directors had in fact approved of the giving of such power of attorney to the person who presented the Plaint." It is obvious that the requirements mentioned in the passage cited above have been met in the present case. The suit has, therefore, been competently filed. It is next contended that the suit cannot proceed against the defendant because Defendant No. 1 Company has been ordered to be wound up. The argument appears to be that in view of the provisions of Section 318 of the Companies Ordinance, 1984, the defendant No. 4 will not be able to exercise his right under Section 145 of the Contract Act. I must confess that I am unable to understand the argument. Section 145 of the Contract Act provides that in every contract of guarantee there is an implied promise by the principal debtor to indemnify the surety and the surely is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee; and Section 318 of the Companies Ordinance provides that an order for winding up of a company operates in favour of all the creditors and contributories of the company. If, therefore, the defendant becomes liable to pay by virtue of his guarantee, surely, he would be entitled to claim payment from the liquidator of the company. It is then submitted by Mr. Shamsi that the guarantee was for past consideration and was, therefore, in view of Section 127 of the Contract Act, read with illustration (c) thereto, void. He relied on Paulo Varghese and others v. Ittipe Abraham and others (AIR 1952 Tranvancore-Cochin 202) and Ram Narain v. Lt. Col. Harisingh and another (AIR 1964 Rajasthan 76). Section 127 of the Contract Act provides:- "Any thing done, or any promise made for the benefit of the principal debtor may be sufficient consideration for the surety giving the guarantee." and illustration (c) to Section 127 is as follows:- "A sells and delivers goods to B. C afterwards, without consideration, agrees to pay for them in default of payment. The agreement is void." Reference, in this connection may. also be made to Section 2(d) of the Contract Act which defines "consideration" as follows:- "When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or promises to do or abstain from doing, some thing, such act or abstinence is called a consideration for the promise." It is clear that, by virtue of Section 2(d), anything done or abstained from or any promise made by a promisee, in order to amount to "consideration", must have been done or abstained from or made at the desire of the promisor. If, therefore, the promisee does or abstains from doing, or promises to do or abstain from doing, something, at the desire of a surety, such act or abstinence or promise would be good consideration for the guarantee. If, on the other hand, the act or abstinence or promise of the promisee is not done or made at the desire of the surety, such act or abstinence or promise is not good consideration. For the same reason, a guarantee given subsequently, for an act or abstinence or promise which was not done or made at the desire of the surety, is without consideration; and such act, abstinence or promise cannot be treated as consideration for a guarantee given subsequently without any further act, abstinence or promise done or made by the promisee. If, however, a guarantee is given afterwards in return for some thing more done or abstained from or some promise made by the promisee at the desire of the surety, such some thing more would be good consideration for the guarantee for future as well as for past transactions. Such, in fact, is the effect of illustration (c) to Section 127 of the Contract Act; and all that Section 127 does is to make it clear that it is not necessary that the surety himself must receive some benefit in return for his guarantee and that any benefit to the principal debtor is sufficient consideration for the guarantee. He rule is clearly stated in Clilty on Contracts, Volume II, 2nd edition, page 1018, thus:- "If the surety guarantees past transactions in return for an undertaking by the creditor to continue to deal with the debtor, or to grant him further credit, there will be good consideration. In practice, the surety frequently guarantees both past and future transactions in return for such an undertaking, and such a guarantee is good as to both sets of transactions, for consideration to be executed on one side is at all events prima facie consideration for all that is done on the other, and all the promises are to be referred to all the considerations. Difficult question of construction may arise in these cases since guarantees are often expressed in terms which leave it doubtful whether the surety is guaranteeing past and future transactions, or past ones only. In these circumstances, extrinsic evidence is admissible to show that the parties contemplated future transactions as falling within the guarantee, and that the whole guarantee is therefore valid. But if it is evident that the guarantee was intended to be limited to past transactions above, the guarantee will be void as being without consideration." In the case of Chakhan Lai and others v. Kanhaiya Lai and others (AIR 1929 AllT 72) the facts, as recited in the headnote of the report, were that a person stood surety for his brother for the payment of a sum, part of which was due on previous debts of the brother, part was due on hundis jointly executed by both, part was paid at the time the person agreed to stand as surety and part was to be paid later on by the creditor who did not pay the same. It was held by a Division Bench of Allahabad High Court that there was sufficient consideration for the guarantee for the whole sum including the sum due on past debts of the brother. In M. Ghulam Hussain Khan and another v. M. Faiyaz Ali Khan and another (AIR 1940 Ondh 346) one Madar Khan had executed an instalment bond, in February, 1929, in favour of a Dargah Committee. Subsequently, the appellant executed, in July, 1929, a surety bond in favour of the committee binding himself to pay a certain sum to the committee in the event of default on the part of Madar Khan. It was presumed, in the circumstances of the case, that if the security bond had not been furnished, the lease given to Madar Khan, in return for which he had executed the instalment bond, would have been cancelled. It was, therefore, held that there was sufficient consideration for the surety bond. Reliance was placed on the case of Jagadindra Nath Roy v. Chandra Nath (1904 31 Cal. 242) wherein it was held:- "The surely deed .... itself shows that the demand for fresh security was made by the lessor and it is clear that the defendant 2 was asked to become and became surety for defendant No. 1 in order to save him from the result of failure to comply with the demand of the lessor which would have been either forfeiture of his lease or institution of legal proceedings. This resulted in an advantage to the lessee and we therefore hold .... that there was sufficient consideration for the bond executed by defendant of 2." In the case of Paulo Varghese, it was alleged in the plaint that the respondent promised that he would make the defendants Nos. 1 and 2 discharge the debt to the plaintiff and that he himself would be personally responsible for the discharge of the debt. It was held:- "The debt was already contracted and subsequently the alleged surety is stated to have come forward and said that he would be responsible for the discharge of the debt. The creditor did not suffer any detriment at the instance of the surety. This is an obvious instance of a promise which is not supported by consideration." The case is clearly distinguishable and is of no assistance to the defendant. In the case of Ram Narain v. Lt. Col. Hari Singh the plaintiff had money dealings with one H. The transactions between the plaintiff and H. were settled and H executed an entry in the account book of the plaintiff for having received a sum of Rs. 7,500/- in cash on 18.12.1953. The respondent signed this entry stating that he was responsible for payment of this amount. It was found as a fact that previous accounts between the parties were squared up on 16.12.1953 and the account book came to be written on 18.12.1953, that no cash was paid on 18.12.1953 and that if H stood discharged of all his liabilities on 16.12.1953, nothing was done on 18.12.1953 by way of benefit to H. In those circumstances it was obvious that the Respondent was not liable; and the case, therefore, is distinguishable on facts. The learned Judge, however, went on to hold, obiter, that, in view of the language of illustration (c) to Section 127, any thing done or any promise made for the benefit of the principal debtor must be contemporaneous to the surety' contract of guarantee. He dissented from the Oudh case cited above. I am afraid that it is not possible to agree with the conclusion arrived at by the learned Judge in Ram Narain's case for several reasons. In the first place, there is nothing in the language of Sections 2(d) and 127 of the Contract Act or in that of illustration (c) to the latter section which excludes past consideration given at the desire of the surety. Secondly, it is not possible to see why, on principle, a guarantee executed by a surety after consideration is given to the principal borrower at the desire of the surely, should not be held to be good guarantee. If a loan is given by a creditor to the principal borrower at the behest of surety, a benefit is thereby conferred upon the principal borrower; and that in terms of sections 2(d) and 127 constitutes sufficient consideration. Does it make any difference that, in pursuance of such a transaction the surety subsequently executes a guarantee? In my opinion, it does not, either in principle or on authority. Finally, the conclusion runs counter to the authorities. The question for consideration now is whether the guarantee in question can, in the light of the above principle, be said to be without consideration. It provides, in relevant parts, as follows:- "In consideration of your agreeing to grant advances, credit, facilities or accommodation at my/our request to Shahryar Textile Mills Ltd. (hereinafter referred to as the customer (s). I/we (jointly and severally) hereby agree to pay and satisfy to you on demand up to Rs. 40,000,000/- but not exceeding the sum of rupees forty million all mo'neys and liabilities already advanced, paid or incurred or which you at any time advance, pay or incur to or for the use and accommodation of or on the credit of the customer(s), (whether on current), cash credit, overdraft or loan account or by way of opening of any letter of Credit or otherwise or by the discount of, or otherwise in respect of bills of exchange, promissory notes 01 other negotiable securities drawn, accepted or. endorsed by the customer(s) or otherwise however) together with all interest, discount, commission and other banking charges, law and other costs charges and expenses which may become payable in connection therewith. 2. This guarantee shall be a continuing guarantee and remain in full force and effect until three calendar months after. I/each of us shall have given or sent to you notice in writing of my/our intention to discontinue and determine the same The defendant No. 4 has, by the above guarantee, undertaken to pay the plaintiff the sum named therein on account of "all moneys already advanced" or which the plaintiff may "at any time advance". The consideration for the guarantee was, therefore, advances granted by the plaintiff in the past as well as the advances which the plaintiff agreed to grant the principal borrower in future. Besides, in return for the guarantee the bank undertook to continue to deal with the principal borrower and thus conferred a benefit on it. The guarantee is, therefore, good as to both the past as well as any future transactions. One other factor which may be taken note of in this connection is that the defendant No. 4 was apparently a director of the principal borrower when loans were given to the latter and, as Miss Sofia Saeed points out, it was a condition of the loans that the directors of the company would execute personal guarantees as security. The guarantee in question was, therefore, executed in pursuance of that condition. I am, therefore, satisfied that the guarantee in question was give for sufficient consideration. It is contended that the guarantee was revoked by Defendant No. 4 by his letters copies of which are Annexures D-3, D-5 and D-6 to the affidavit in support of the application. Annexure D-3 is the letter from the defendant to the plaintiff stating that he had resigned from the Directorship of the Defendant No. 1 with immediate effect. Annexure D-4 is to the same effect. Annexure D-5 is the plaintiffs letter dated January 18, 1988, in reply to the above letters, stating that "resignation from the directorship of company would not absolve the defendant from his legal obligation to the bank as guarantor. Annexure-D-6 is a letter from the Defendant to the plaintiff referring to his earlier letters and stating that he had informed Pakistan Banking Council that he was not responsible for the liabilities of the Defendant No. 1. There is evidently nothing in those letters to show that the defendant No. 4 had revoked the guarantee. Mr. Shamsi refers to the letter dated February 8, 1988 (Annex D-6) wherein it is stated that the defendant had informed Pakistan Banking Council that he would not be responsible for the liabilities of defendant No. 1. In the first place, Pakistan Banking Council was not party to the guarantee and, secondly, even if the defendant No. 4 had'informed Pakistan Banking Council, as alleged, that would not amount revocation of the guarantee. Section 130 of the Contract Act provides that a continuing guarantee may at any time be revoked by the surety as to future transactions by notice to the creditors. Ms. Sofia Saeed submits that the words "resignation" and "revocation" mean totally different things and the intimation of resignation from directorship cannot possibly be construed as notice of revocation of the guarantee. Be that as it may, under Section 130, a guarantee can be revoked only as to future transaction; and it is nobody's case that there were any future transactions after the defendant wrote the letters mentioned above to the plaintiff. The argument, therefore, clearly fails. The next argument advanced on behalf of the defendant is that the guarantee was discharged because (i) the defendant will not, in view of the winding up of defendant No. 1, the principal borrower, be able to claim reimbursement as provided by Section 145 of the Contract Act and (ii) the plaintiff varied the repayment schedule without the consent of the defendant. The first limb of the above argument has already been dealt with above; but Mr. Shamsi submits that the plaintiff, not having opposed the petition for winding up of defendant No. 1, the defendant No. 4, the surety, is discharged. He is, however, unable to cite any principle or authority in support of his proposition or to show that the plaintiff was under any obligation to do so; and I do not believe that there is any such principle or authority. In the case of Punjab National Bank v. Mehra Brothers (P) Ltd. (AIR 1983 Cal. 335), the bank had filed the suit for recovery of money against the principal debtor and the sureties. The principal debtor was ordered to be wound up and an official liquidator was appointed but leave was obtained from the Company Judge to proceed with the suit against it. The bank had, in addition, also preferred a claim against the principal debtor in the winding up proceedings. It was contended that, in those circumstances, the liability of the sureties had ceased and or lapsed. It was held, rejecting the contention, that making of a claim before the liquidator did not amount to foregoing the claim against the sureties and that the Bank had not, by preferring a claim before the liquidator and by its claim being admitted by the liquidator, foregone its claim against the sureties. . Mr. Shamsi has cited the case of United Bank Ltd. v. Messrs Kohistan Ltd. (1987 CLC 2364) where it was held that where a company which was the principal debtor was completely dissolved under the provisions of Martial Law Regulation No. 63, the sureties could not be sued. There the creditor had not filed its claim before the Administrator and had filed the suit against the surety two years after the company had been completely dissolved. The case obviously has no application to the facts of the present case. In support of the submission that the plaintiff varied the terms of repayment without the consent of the defendant No. 4, Mr. Shamsi relies on the letters which the defendant wrote to the plaintiff, copies whereof are Annexures P-14, P-15 and P-16 to the plaint. By these letters the defendant had sent to the plaintiff "revised repayment schedule" with a request to approve the same. There is nothing on the record to show that such approval was ever accorded and, indeed, Mr. Shamsi has not been able to point out any such approval. There was, therefore, in fact, no variation in repayment schedule. Assuming, however, that there was any such variation, Ms. Saeed points out that the plaintiff was, by virtue of clause 3 of the guarantee entitled to grant time or indulgence to defendant No. 1. She submits that in view of that fact the provisions of Section 133 of the Contract would not apply. Mr. Shamsi submits that clause 3 of the guarantee is not valid because it violates the provisions of Section 23 of the Contract Act as it is intended to defeat the provisions of Section 133 of the Contract Act. Section 133, as has been seen, provides that variation without the consent of the surety would have the effect of discharging surety. The guarantee admittedly contains such consent as has been contemplated in Section 133. The provisions of Clause 3 of the guarantee, therefore, are in pursuance of Section 133 of the Contract Act and not intended to defeat them. It is finally contended on behalf of the defendant that he is discharged because the plaintiff has lost security of pledged cotton given by defendant No. 1. Mr. Shamsi has today produced a certified copy of the order passed in J.M. 10/93 wherein the defendant No. 1 has been ordered to be wound up. According to him, that order shows that the plaintiff has not only lost the pledged cotton but has also agreed that the pledged cotton be sold and sale proceeds be distributed among all the creditors of defendant No. 1. The order, however, shows clearly that the cotton in question had been mixed up with cotton pledged to another bank and that it was not possible, for the time being, to indentify the particular bales of cotton as being the subject matter of a pledge to any particular bank. It was, therefore, ordered by consent of the counsel, that the bales of cotton may be sold by the Official Liquidator and the sale proceeds be held by him for payment disbursement to the banks or any of them who can prove that they were the pledgees of the bales of cotton in question or any part thereof. The order thus makes it very clear that the plaintiff did not give up its pledge but, on the contrary, has preserved the right as pledgee by reserving the right to the proceeds of the sale subject only to determination of the specific quantity of bales which may be found to have been pledged to it. No other ground has been urged in support of the application and, as can be seen from the foregoing discussion, the defences set up are far from plausible. In the circumstances, defendant No. 4 is not entitled to leave to defend the suit. The application is, therefore, dismissed. The application of defendants No. 1, 2 and 3 for leave to appeal and defend the suit was dismissed on the 24th May 1995, and the suit is proceeding against defendant No. 1 with the leave of the company Judge. Today the application of defendant No. 4 has also been dismissed. The plaintiff is, therefore, entitled to a decree. It is, therefore, hereby declared that the sum due on account of mortgage by the defendant No. 1 is Us. 9,22,86,593 with interest thereon at the rate of 14% p.a. with quarterly rests from the date of the suit till payment. Let preliminary decree in Appendix D, Schedule I, CPC, be prepared. The suit is also decreed against the defendants Nos. 1 to 4 jointly and severally for Rs. 9,22,86,593/- with interest thereon as aforesaid and costs of the suit. (MYFK) Suit dismissed.

PLJ 1996 Karachi 496 PLJ 1996 Karachi 496 Present: rana bhagwan das, J. DARUL AMAN CO-OPERATIVE HOUSING SOCIETY LIMITED-Plaintiff versus SECRETARY GOVERNMENT OF PAKISTAN etc.-Defendants Civil Suit No. 3 of 1977, dismissed on 4.5.1995. (i) Co-operative Societies Act, 1925 (VII of 1925)- —-S. 70-Suit for declaration, possession and damages-Provision of S. 70 renders it absolutely necessary on plaintiff to serve a notice on Registrar before filing a suit-Plaintiff society, though, had served notices on all defendants, but no care was taken to give notice to Registrar, Cooperative Societies which was imperative-Suit cannot be maintained- Suit dismissed. [Pp. 499 & 500] A to C PLD 1975 karachi 428, 1989 MLD 4250, ref. (ii) "Lis Pendens"-- —"Lis pendens" literally means a pending suit or cause and doctrine of "Lis pendens" has been defined as jurisdiction, power or control which a court acquires over property involved in a suit, pending continuance of action _^ - and until final judgment in it-Its net effect would be to maintain status quo-No interest which is created during pendency of suit can affect any decree passed in suit-Held: Subsequent events affecting rights of parties may be of no significance-Plaintiff society has failed to establish its entitlement to plot in suit. [Pp. 503 & 504] D to F Mr. A.F.M. Mokarrum, Advocate, for Plaintiff. Mr. ArifBilla Sherwani, Advocate, for Defendant No. 2. Mr. Mubarak Hussain Siddiqui, Advocate, for Defendant No. 4. Date of hearing: 4.5.1995. judgement The plaintiff Society has brought this suit for declaration, possession and damages in respect of amenity plot No. 19, Block 7 and 8 Karachi Co­operative Housing Societies Union, admeasuring 3040 Sq. yards seeking a declaration that cancelation of allotment in their favour and its allotment and lease in favour of defendant No. 4 be declared as illegal, void and inoperative. Besides praying for restoration of possession, the plaintiffs have asked for damages to the tune of Rs. 25,000.00 with 12% interest against the defendants. Mesne profits at the rate of Rs. 1,000/- per month from the date of the suit have also been claimed against defendant No. 4 with interest at 12% per annum. 2. Plaintiffs as well as defendant Nos. 2 and 3 are the registered cooperative societies under the Cooperative Societies Act. (hereinafter referred as Act). Defendant No. 1 entered into an agreement dated 14.1.1954 with defendant No. 2 whereby 1175 acres of land in Karachi was placed at the disposal of defendant No. 2 with a specific provision regarding the plots reserved for public amenities. In pursuance of this agreement, Defendant No. 2 allotted lands to various member ocieties for residential as well as commercial purposes and was bound to ear-mark 5% of the total area so allotted in the form of amenity plots. In the first instance plot in suit was allotted by Defendant No. 2 to plaintiffs vide letter dated 8.11.1958 as amenity plot, who obtained approval of a building plan thereon. It is the case of the plaintiffs that they started construction of a room for office purposes in order to construction of a room for office purposes in order to construct the main building as per approved plan when on 10.7.1976, defendant No. 4 when to the site and emolished the construction raised by the plaintiffs and took away their property. It is alleged that later, Defendant No. 4 forcibl trespassed on the plot in suit and occupied the same. For this purpose, the plaintiffs assessed the damages at Rs. 25,000/-. Plaintiffs averred that they did not receive any notice of cancellation of allotment nor were they provided an opportunity of hearing before the cancellation of allotment in their favour while defendant No. 4 claimed that he had been allotted and leased out the plot in suit in July, 1975 by defendants No. 1 and 3. After service of a legal notice thorough their advocate on all defendants and receiving no response plaintiffs filed this suit asserting that the allotment and execution of lease in respect of the plot in suit in favour of defendant No. 4 by defendants No. 1 and 3 is illegal, void and inoperative. 3. While defendants No. 1 and 3 did not contest the suit, defendants No. 2 and 4 filed separate written statements resisting the suit. It is the case of defendant No. 2 that in the first instance, plot in suit was allotted to the plaintiffs and later without cancellation of the allotment, the said plot was allotted to defendant No. 3, who in turn allotted the same to defendant No. 4 for amenity purposes. According to this defendant, subsequent allotment in favour of Defendant No. 3 by the management of the society was illegal and unjust as the plot in suit was already allotted in favour of the plaintiffs, who were put in possession thereof and had a vested right in it. Consequently, allotment and lease of the plot in favour of defendant No. 4 was equally jllegal and ultra vires. It is further the case of this defendant that after promulgation of Martial Law Order 34 they cancelled the allotment of all amenity plots including the plot in suit vide cancellation order dated 13.12.1977. A detailed report with regard to cancellation of amenity plots was sent to Martial Law Authorities for confirmation of action who appointed a high official committee for confirmation of the action taken which was subsequently confirmed. Decision dated 17.7.1979 taken with the approval of the Governor of Sindh/Martial Law Administrator, Zone C was communicated to the Secretary of this defendant which was also sent for compliance to the Registrar, Cooperative Societies on 23.7.1979. 4. The case of defendant No. 4 as reflected in his written statement s that the plot in suit belonged to defendant No. 3, who allotted this plot in is favour and on their recommendation defendant No. 2 demarcated boundaries of the plot and delivered its possession to him in May, 1976 which was followed by execution of a sub-lease in his favour. This defendant, as per terms of the lease and understanding with defendant No. 2 society raised certain construction on the above plot for the purposes of community interest and invested a sum of about Rs. 200,000.00 on earth filling work and construction. According to this defendant, the plaintiffs did not take any action for cancellation of the lease, possession of the plot or any other remedy till July, 1976 when for the first time Maqbool Ahmed Khan, Secretary of the plaintiff society, forcibly occupied the plot of land. Matter was reported to police and apprehending adverse action the said Maqbool - Ahmed Khan abandoned possessions of the plot which was taken over by defendant No. 4 under intimation to S.H.O. Ferozeabad Police Station. Subsequently, Maqbool Ahmed Khan, started threatening this Defendant to dispossess him by force with the result that he filed Suit No. 1340 of 1976 in the civil court in which an order of interim injunction was passed. Thereafter, the plaintiffs served Defendant No. 4 with a notice dated 27.7.1976 raising their claim with regard to allotment of the plot in th ir favour and questioning the allotment and lease in favour of this defendant. Pleas with regard to lack of jurisdiction, misjoinder of parties, under­ valuation of suit and non-maintainability thereof were also raised. "" ! - 5. On the pleadings of the parties, following issues were settled by consent:- 1. Whether the plaintiff is entitled for the declaration that the cancellation of the allotment order in favour of the plaintiff as well as the allotment and lease in favour of the defendant No. 4 is illegal, void and inoperative and the allotment with possession in favour of the plaintiff still subsists 2. Whether the plaintiff is entitled for the restoration of the possession of the plot of land in dispute? 3. Whether the defendants are liable jointly and severally to pay damages of Rs. 25,000/- to the plaintiff? 4. Whether the defendant No. 4 is liable to pay mesne profit at the rate of Rs. 1,000/- per month from the date of the suit till vacant and peaceful possession of the disputed plot is handed over to the plaintiff? 5. Whether the suit is bad for mis-joinder of parties and causes of action? 6. Whether the suit is under-valued? 7. Relief? 6. In support of its case, the plaintiff society examined Muhammad Laiq, Chairman of the Society P.W-1, Muhammad Munawar, Chief Officer of defendant No. 2 P. W-2 and Maqbool Ahmed Khan, Secretary cl the plaintiff ociety P. W-3. On the other hand, defendant No. 4 Muhammad Ashfaq appeared as his own witness and examined Hamza Alt Mangrio Chief Officer D. W-2. A number of documents including a deed of cancellation dated 20.1.1980 with regard to cancellation of lease executed in favour of defendant No. 4 as well as execution of lease deed in favour of the plaintiff society dated 1.2.1984 were produced by the parties which shall be discussed later on. 7. I have heard learned counsel appearing for the parties and gone through the relevant evidence on record-. My findings on each issue with reasons therefor are as under: FINDINGS Issue No. 1. Issue No. 2. Issue No. 3. Issue No. 4. Issue No. 5. Issue No. 6. Issue No. 7. Negative. Negative. Negative. Negative. Not maintainable for want of statutory notice. Not pressed. Suit dismissed with costs. REASONS 9. Issue No. 5. This issue was raised by defendant No. 4. Mr. Mubarak Hussain Siddiqui, learned counsel for defendant No. 4 contended with vehemence that the prayer of the plaintiff Society was directed against the defendants No. 2 to 4 whereas defendant No. 1 has been joined unnecessarily because Government of Pakistan is neither a necessary nor proper party to the suit. It appears that no cause of action arose to the plaintiff Society against the Federal Government and undoubtedly no relief has been sought against the said defendant, I am however of the view that the suit shall not fail for misjoinder of this defendant who have advisedly not contested the suit. 10. However in the context of this issue, a legal question has been raised as to the non-maintainability of the suit for want of statutory notice under section 70 of the Cooperative Societies Act which is mandatory in nature. This provision of law renders it absolutely necessary on the plaintiff to serve a notice on the Registrar before filing a suit relating to a dispute touching the business of the Society which can only be referred to Registrar for arbitration under section 54 of the Act. 11. This provision of law reads as under:- "70. Notice necessary in suit.-No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar, or left at his office stating the cause of action, the name, description and place of residence of the plaintiff and relief which he claims and the plaint shall contain a statement that such notice has been so delivered or left." 12. In the present suit, plaintiff Society was conscious of this legal position and fully aware of the legal consequences emanating from nonservice of statutory notice. In fact it had served notice dated 27th July, 1976 on all the defendants intimating them that the proposed suit shall be filed in Court of law for the reliefs claimed in the suit after the expiry of statutory period. It is however strange to note that no care was taken to see that notice was given to the Registrar, Cooperative Societies which was absolutely necessary within the meaning of the provision of law referred to above. It is admitted that the plaintiff Society as well as defendants No. 2 and 3 are Societies registered under the provisions of the Act and the plaintiff Society is seeking to enforce its claim not only against defendant No. 4 but also against both the Societies in relation to an act of defendants No. 2 and 3. This act certainly touches the business of the Society and no suit can be filed until the expiration of two months after the delivery of notice to the Registrar stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims. The language of law not only insists upon the mandatory service of statutory notice on Registrar but also envisages that the plaint shall contain a statement that such notice has been so delivered or left at the office of the Registrar. There is no dispute as regards the status of plaintiff Society and defendants No. 2 and 3 although defendant No. 4 is not a member of the plaintiff Society. In these circumstances it was imperative on the plaintiffs to serve the statutory notice on the Registrar which was not actually served, therefore the suit cannot be maintained. Had this point been raised at initial stage of the suit, proper course for the Court would have been to reject the plaint under Order VII rule 11 CPC but after the conclusion of evidence and hearing arguments on all issues only course open to this Court would be to dismiss the suit for want of statutory notice and I hold accordingly. 13. 1 am fortified in this view by the judgments in the case of Muhammad Ali Memorial Cooperative Housing Society Ltd. Karachi v. Syed Sibtey Hasan Kazmi (PLD 1975 Karachi 428) and Sajjad Hussain Khan & 126 others v. Muhammad Hanif Siddiqui & 3 others (1989 M.L.D. 4250). 14. In the case at serial No. 1, the view taken was that the provisions of section 70 are mandatory and failure to comply with the requirements of that section, that notice must be given would render the suit not maintainable. 15. In the case at serial No. 2, a similar view was taken and the plaint was rejected by reason of bar of jurisdiction under sections 54 and 70- A of the Act. 16. Learned counsel for the plaintiffs was not in a position to controvert the aforesaid position in law emerging from the facts of the suit xcept saying that the Registrar or his nominee would not have been able to adjudicate upon the uispute between the parties. There is no merit in the stand taken on behalf of the plaintiffs who have not been able to cite any law to the contrary though sufficient time and opportunity was allowed to them fbr this purpose. Issue No. 1. 17. From the evidence on record it transpires that in the first instance an area of 3040 Sq. yards bearing survey number amenity plot 19 was allotted to the plaintiff Society alongwith a lay out plan by defendant No. 2 Society. Plaintiffs had desired the conversion of this amenity plot into commercial plot which was referred and recommended by defendant No. 2 to defendant No. 1 who however, declined to accept the proposal vide letter Ex. 5/1) dated 12.1.1973. It further appears that thereafter plaintiff Society expressed their inability to utilize this area as amenity and acquired an alternate site as amenity area in Block No. 3 of defendant No. 2 Society but consequent upon refusal by defendant No. 1 to convert the plot in suit into commercial, allotment of the plot in favour of plaintiff Society was cancelled and the area stood reverted to defendant No. 2. A letter to this effect dated 27th November, 1973 Ex. 10/1 and its copy Ex. 11/1 were produced in evidence. No doubt, plaintiffs have denied the receipt of this letter conveying the cancellation of allotment of plot in their favour there is satisfactory and sufficient evidence of Hamza Ali Mangrio who was serving as Chief Officer of defendant No. 2 at the relevant period to show that the allotment in their favour was cancelled. 18. Learned counsel for the plaintiffs referred to para 8 of the plaint in which it was averred that plaintiff Society did not receive any notice for cancelling its allotment by defendant No. 2 nor where they given any opportunity of hearing by defendants No. 1 and 2 in respect of the cancellation of the allotment. He also attempted to rely on the contents of written statement filed by defendant No. 2 in which it was stated that the plot in suit was allotted to defendant No. 3 without cancellation of the allotment in favour of the plaintiffs. Be that as it may, mere statement in written statement by an Officer of a Cooperative Society would not by itself be sufficient to contradict the documentary evidence brought on record. In fact Mr. Hamza Ali Mangario serving as Chief Officer in Karachi Cooperative Housing Societies Union from 1973 to 1977 unequivocally stated that after the rejection of the request of the plaintiff Society for conversion of amenity plot into commercial by the Ministry of Works original allotment in favour of plaintiff Society was cancelled and the plot resumed by the Union. Later, it was allotted to defendant No. 3 Society who subsequently allotted it to defendant No. 4 and possession was handed over to him by defendant No. 2 vide Certificate Ex. 6/3 dated 29.5.1976 of handing over and taking over possession. He produced photo-copy of letter Ex. 10/1 addressed by the then Administrator to the Secretary of the plaintiff Society showing that original allotment in respect of the plot had been cancelled on account of refusal to allow commercialisation of the plot. 19. It further transpires from the evidence that during pendency of the suit lease in respect of the plot in suit executed in favour of defendant No. 4 was cancelled by defendant No. 2 and a deed of cancellati n Ex. 5/23 was executed on 20.1.1980 before the Sub-Registrar. Later, a lease deed Ex. 5/24 in respect of the plot in suit was executed in favour of plaintiff Society on or 1.2.1984. It may be pertinent to observe here that despite these material developments indicating the cancellation of lease deed in favour of defendant No. 4 and execution of lease deed in favour of plaintiffs, none of the parties cared to amend their respective pleadings. I am of the view that after the change in circumstances prayer of the plaintiff Society to the extent of declaratory relief having been granted it was incumbent upon them to amend the plaint but for the reasons best known to the parties neither the plaintiff nor defendant No. 4 came forward for amendment of pleadings. 20. A serious question of law at this stage would arise whether these transactions are not hit by the principle of "lis pendens" as enshrined in section 52 of the Transfer of Properly Act. This provision of law bars the transfer or encumbering a right to immovable property during the pendency of a suit or proceeding before a Court of Law. "Lis pendens' literally means a pending suit or cause and the doctrine of "lis pendens" has been defined as jurisdiction, power or control which a Court acquires over property involved in a suit, pending the continuance of the action and until final judgment therein. It denotes those principles of rules and laws which define and limit the operation of the Common Law Maxim to the effect that nothing relating to the subject matter of a suit can be changed while it is pending. One, who with actual or constructive notice of the pending action acquires from a party thereto an interest in the property, involved in litigation in a Court and of the person or the one from whom the interest is acquired, takes subject to the rights of the parties to the litigation as finally determined by the judgment, order or decree. It has been observed that the effect of "lis pendens" is in its nature, the same as that of registration since it is only a different example of the operation of the rule of constructive notice. Its net effect would be to maintain status quo. No interest which is created during the pendency of the suit can affect any decree passed in the suit. 21. In the case of United Bank Ltd. v. Azizunisa (PLD 1956 S.C. (Pak.) 274) it was held that a plea of lis pendens will be allowed to be raised even though the point is not taken in the pleadings or raised as an issue. --. 22. However a strange argument was advanced on behalf of plaintiff Society that lease in favour of defendant No. 4 had been cancelled under the provisions of Martial Law Order 34 promulgated on 30.9.1977 by Martial Law Administrator Zone-C directing the cancellation of all allotments of plots reserved for road, hospitals, schools or amenity purpose but were subsequently unauthorisedly or by political manoeuvres converted into residential or commercial plots and on which no construction had been made. This M.L.O. was reconstituted as Martial Law Order 89 promulgated on 19.4.1979. In the reconstituted Order an aggrieved person was given a right of appeal to Government within 15 days of the promulgation of the Order. No doubt argument on the face of it is highly attractive, but there is hardly any evidence to show that lease in favour of defendant No. 4 was cancelled under the provisions of M.L.O. 34 as assumed by the plaintiffs. In this connection, reliance was placed on notice dated 30.9.1979 purportedly published by defendant No. 2 in the Sindh Government Gazette dated October, 4th, 1979 stating that defendant No. 2 had already cancelled the allotment of amenity plots in pursuance of Martial Law Order 34 and had notified the same in daily "Jang" and "Dawn" in the month of January, 1979 It was further notified that Martial Law Administrator Zone-C and Governor of Sindh had confirmed the orders of cancellation. 23. A serious reservation was taken to this action taken by defendant No. 2 during the pendency of the suit for a number of reasons, firstly; that MLO 34 or MLO 89 did not confer jurisdiction to cancel allotment of amenity plots on defendant No. 2, secondly; that both the Martial Law Orders covered the cases of allotment whereas there was a valid registered lease deed in favour of defendant No. 4, thirdly; that the notice published by defendant No. 2 in daily "Jang" Karachi dated 27.1.1979 did not incorporate the plot in suit or the name of defendant No. 4 and lastly there is no evidence to show that the plot in suit had been used for commercial or residential purposes or obtained by political manoeuvres. The argument advanced questioning the validity of action purported to have been taken under the two M.L.Os. is not without force and has much substance in it. Defendant No. 2 being a party to the suit could not in law change the situation by effecting transfer of the property in suit in favour of plaintiffs after cancellation of lease in favour of defendant No. 4 and certainly the action would be hit by the doctrine of "lis pendens". There is absolutely no evidence to show that Defendant No. 2 were authorised to exercise the powers vested in Martial Law Administrator Zone C. 24. Taking a strict view of the matter, I am of the view that subsequent events affecting the rights of the parties may be of no significance. Th fact however remains that the plaintiff Society has failed to establish its entitlement to the plot in suit or a declaration to the effect that allotment and lease in favour of defendant No. 4 was illegal, void and inoperative. Issue No. 2. 25. It is admitted position that defendant No. 4 is in possession of the plot in suit. For the purpose of deciding this issue, it is not necessary to dilate upon the circumstances under which he obtained the possessions of the plot in suit. As a necessary corollary of the finding in issue No. 1,1 hold that the plaintiff Society is not entitled to possession of the plot in suit. Issues No. 3 & 4. 26. Plaintiffs having failed to establish their right, and title to the property in suit, both the issues must fail and are answered in negative. Issues No. 6. 27. Learned counsel for Defendant No. 4 has not pressed this issue which is rendered redundant. Issue No. 7. 28. In view of the aforesaid discussion and findings on the foregoing issues, there is no merit in the suit which is accordingly dismissed with costs. (MYFK) Suit dismissed.

PLJ 1996 Karachi 505 PLJ 1996 Karachi 505 [Original Jurisdiction] Present: deedar hussain shah, J. DR. IZHAR FATIMA--Plaintiff Versus Haji MUHAMAMD and others-Defendant and Arbitrator Suit No. 687 of 1986. Dismissed on 211-11-1995 Civil Procedure Code, 1908 (Act V of 1908)-- —-Order 9 Rules 8 & 9 read with Article 163 of Limitation Act, 1908-Suit dismissed for non-prosecution-Application filed after nine months of dismissal order-Contention that plaintiff is a lady and was not aware of date-Held: No sufficient cause for restoration of suit is made out in application which otherwise hopelessly is time barred-Held further : Plaintiff has shifted blame of her absence upon counsel so as to get scot from her own legal obligation to attend her suit.-Applications dismissed. [Pp. 513 & 514] A & B SCMR 1973 p. 103, PLD 1972 SC 123, 1993 SCMR 1949, PLD 1979 Kar. 635, 1992 SCMR 917, SCMR 1981 212,1974 SCMR 162,1995 SCMR 1419, and PLD 1995 SC 396, 1995 CLC 461 Kar. 1970 SCMR 76 ref. Mr. Dewan Bashir Ahmad, for the plaintiff. Mr. KB. Bhutto, for defendant. order 1. In this CMA which is filed on 10.1.1994 the plaintiff has prayed that order 6.4.1993 may be set aside and suit be restored for decision on merits. This application is supported by affidavit filed by Dr. Izhar Fatima, the plaintiff. The relevant and actual contents of the affidavit are as follows :- "2. That the accompanying application under Order 9 Rule 9 read with section 151 CPC has been drafted under my express instructions, and I crave leave of this Honourable Court to deem its contents as a part of this affidavit." "3. That I say that whatever stated in the said application is true and correct." "4. That unless the prayer in the accompanied application is granted, I shall be seriously prejudiced, and shall suffer irreparable loss and injury." 2. This CMA is opposed by Abdul Ghaffar, the attorney of defendants No. 6 and 7 The relevant paragraphs of the counter affidavit are reproduced as under :- "That the contention raised in para 3 of the affidavit is untenable in law and baseless, as per the advice received by me which is verily believed by me to be correct. It is submitted that the said objections of the defendant against the impugned Award, are not an interlocutory application in any suit and it was, as a matter of fact and in law striking against the very root of the Award and the application filed U/S 14 of the Arbitration Act 1940 which was registered as Suit No. 687 of 1986. As such the order dated 6.4.1993 dismissing the said suit U/O 9 Rule 8 CPC is a legal and proper one. Further more the said application U/O 9 Rule 9 CPC is grossly time barred." "5. That the contentions made in para 4 of the affidavit are not only misleading and malafide but the same are also misconceived in law. As such the said application, being frivolous, malafide, not maintainable in law and time barred, is liable to be dismissed with cost." 3. I have heard Mr. Dewan Bashir Ahmed who has contended that when the case was called out no person the side of plaintiff was present and the suit was dismissed under Order 9 Rule 8 CPC. 4. That the matter was fixed for hearing of CMA No. 1622/92, and objections to award filed by the defendant and for non prosecution the CMA and objections could have been disposed off only and not the suit. That the plaintiff is a lady and not aware of the date and absence was not bonafide. 5. Mr. K.B. Bhutto has contended that objections of the defendant against the impugned award were not an interlocutory application in suit and were as a matter of fact and in law striking against the way very root of the award and application filed U/S 14 of the Arbitration Act 1940 was registered as a suit No. 687/86; that order dated 6.4.1993 is a legal and proper one; that the CMA being frivolous, malafide, not maintainable in law and time barred is liable to be dismissed with costs. 6. In this matter the award by the learned Arbitrator was presented in office on X 14th October 1986 and this Court on 16.10.1986 passed the following order :- "Plaintiff with her counsel Mr. Qamar Muhamamd Khan. Defendant with his counsel Mr. S.A. Kirmani. 1) Granted. 2) It is an application U/S 17 of the Arbitration Act 1940 signed by the parties as well as their counsel for making the Award rule of the Court. The Award has been filed on 14.10.1986 and is accepted by the parties. The application is granted. The award is made rule of the Court, in so far as it concerns the parties. Sd/- Judge" 7. Against this order J.M. 8/89 was allowed by this Court vide order dated 9.4.1991 with the observation as under :- "I have considered the submissions of the learned counsel. As stated by Mr. K.B. Bhutto and borne-out by the record in suit No. 687/86, it is clear that the defendant had died on 8.10.1986 whereas the application U/S 14 of the Arbitration act was made on 14.10.1986 and also that no notice of this application or the subsequent application of the plaintiff made under Rule 110 Sindh Chief Court Rules (O.S.) was issued to the defendant but on 16.10.1986 some person claimed to be the defendant appeared in the Court and gave consent for making the award rule of the Court. This obviously is committing fraud and making mis­ representation with regard to proceedings in the suit. No doubt it is a settled law that section 12(2) CPC would not be applicable where the fraud or mis-representation is claimed with regard to actual facts but the provisions of this section would certainly be applicable where the fraud or mis­ representation is alleged and shown to have been committed with regard to proceedings in the matter. As observed above in the present case, the applicant have sufficiently shown that the fraud has been played with regard to proceedings in the suit. I would, therefore, allow this application and set aside the decreed passed in the suit on 5.4.1987 whereby the award was decreed as rule of the Court. However, the suit will proceed from the stage the application U/S 14 of the Arbitration Act was moved of which a proper notice will issue to the concerned parties. It will be open for the present applicants to make application to be joined in suit being legal representatives of the defendant. There will be no order as to costs. Sd/- Judge" 8. Against this order plaintiff Dr. Izhar Fatima filed the appeal and the learned D.B. of this Curt in High Court Appeal No. 85/91 passed the order on 2.10.1991 which reads as follows :- "It is, however, admitted that defendant Muhamamd son of Umar was already dead when the order dated 16.10.1986 was passed showing that the parties including the defendant had signed the application and had no objection to the award. The plaintiff may not have been aware of the death of the defendant on 8.10.1986 at the time the proceedings took place on 15th and 16th October 1986, but the fact remains that the defendant had already died on 8.10.1986. Without notice to the legal heirs of deceased defendant, the awar could not have been made a rule of the Court. Admittedly, neither the respondents No. 2 to 5 (legal heirs of deceased, defendant were made parties to the proceedings nor any notice was issued to them. If the Court had been informed that the defendant was already dead, the Court would not have made the award rule of the Court without issuing notice to the legal heirs of deceased defendant. The Court was wrongly informed on 16.10.1986 that the defendant had signed the application U/S 17 of the Arbitration Act and there was also a wrong statement about the presence of the defendant before the Court on 16.10.1986, as the defendant had already died earlier on 8,10,1986. In the circumstances, the learned Single Judge rightly allowed the application U/S 12(2) CPC setting aside the judgment and decree. 9. In this background of the litigation the Court passed order dated 6.4.1993. 10. Mr. Dewan Bashir Ahmed has referred the following case laws:- (1) SCMR 1973 P. 103 Syed Nasir Hussain Shah versus Allah Ditto. The Honourable Supreme Court has held as follows :- "Suit dismissed for default on date not fixed for hearing-Suit, held, could not be dismissed in absentia and restoration rightly ordered by trial Judge." Whereas suit in hand was fixed for hearing and the learned Judge in absence of the plaintiff and his counsel dismissed the suit. (2) PLD 1972 SC 123 M. Imamuddin Janjua versus The Thai Development Authority. The rule laid down by the Honourable Supreme Court is as follows :- "It is, no doubt, true that parties to an arbitration agreement can also by consent modify an award, but this does not mean that they can waive the statutory requirements of the Limitation Act. There can be no kind of estoppel against a statute, particularly where the question of limitation is involved, for section 3 of the Limitation Act clearly enjoins upon the Court that every suit, appeal or application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed although Limitation has not been set up as a defence." The contention, therefore, that since the opposite party had consented to the withdrawal of the application with permission to file a fresh application amounted to an estoppel, had no force." (3) 1993 SCMR - 1949 Qazi Muhamamd Tariq versus Hasin Jahan & 3 others. The Honourable Supreme Court observed as under :- "Suit dismissed for default on date not fixed for hearing - Suit, held, could not be dismissed in absentia and restoration rightly ordered by trial Judge." Whereas suit in hand was fixed for hearing and the learned Judge in absence of the plaintiff and his counsel dismissed the suit. (4) PLD 1979 Kar. 635 Karachi Shipyard and Engineering Works Ltd. versus Muhamamd Aslam Khan. The petitioner brought the application U/S 8 of the Arbitration act on 18.8.1977 seeking appointment of an Arbitrator to decide the suit between the parties. Zafar Hussain Mirza, J. (as his Lordship then was) held as follows:- "The right to apply under section 8 clearly arises upon the failure of the other parties to appoint the arbitrator within 15 clear days after the service of such notice. It is, therefor, clear to me that the effect of the language employed as to the time when the right to apply accrues in the two section is materially different. In my humble opinion this distinction has been clearly mentioned in the cited passage in the Supreme Court judgment. The commencement of the period of Limitation for an application under section 8 cannot, therefore, be related to the point of time when differences arise between tBfe parties." (5) 1992 SCMR 917 Tanveer Jamshed & another versus Raja Ghulam Haider. My Lord Sajjad Ali Shah, J. has held as under :- "Appeal before High Court to be filed within thirty days- Time-barred appeal by about eight months which time was spent in pursing appeal in wrong forum-Such time could not be excluded on the ground of legal advice where mistake was neither bona fide nor was unavoidable after acting within limits of diligence—Appeal being time-barred was dismissed." The case law cited here-to-above by Mr. Dewan Bashir is different and distinguishable from the facts of the present case. As such is not helpful to the case of the plaintiff. 11. Mr. K.B. Bhutto has referred to an unreported authority of this Court (1) Civil Revision No. 314/88 Bhooralal versus M.A. Ansari & another. (2) SCMR 1981 - 212 Sher Muhamamd versus Said Muhamamd Shah. It was held by the Honourable Supreme Court :- "It was undoubtedly the duty of the petitioner's counsel to inform him, if not of the date of hearing at least of the result, namely, the dismissal of the revision petition, but the counsel failed to perform this duty, and the petitioner learnt of the High Court's order only through a friend three months later. Even if these facts are accepted as correct, this would not constitute sufficient cause for the condonation of delay." (3) 1974 SCMR 162 Zulfiqar Alt versus Lai Din and another. It was held by the Honourable Supreme Court that :- "The contention is without any force. The mere fact that a litigant has engaged a counsel to appear on his behalf does not absolve him of all responsibility. It was as much his duty as that of the learned counsel engaged by him to see that the appeal was properly and diligently prosecuted. If he engaged a counsel was lacking in his sense of responsibility to the Court, it is he who should suffer and not the other side." (4) SCMR 1995 - 1419 Mst. Nadira Shahzad versus Mubashir Ahmed & others. My Lord Ajmal Mian, J. has held as under :- The ground disclosed by respondent No. 1 in the abovequoted paras. 3 and 4 of the application under Rule 22 of the Rules lack material particulars as to the date when respondent No. 1 left for abroad, as to the date of his return etc. He was supposed to give justificable reason for the delay of each day, which he failed to do." (5) PLD 1995 SC 396 Government of the Punjab through Secretary (Services), Services General Administration and Information Department, Lahore and another versus Muhammad Saleem. My Lord Saleem Akhtar, J. has held as under :- "In the present case, the High Court gave good reasons for declining to condone the delay. It held that the ground taken by the appellants in their application under section 5 of the Limitation Act that they could not file the appeal within time as they had entered into correspondence with litigating departments and the Solicitor was quite vague and reliance was also placed on a judgment of this Court reported in 1990 SCMR 1059 wherein it was held that "It is a well-settled principle of law that under section 5 of the Limitation Act delay of each day is to be explained" and further that, the Government cannot be treated differently than a private liti.'gajDLt, txo. the question of limitation under section 5 of the Limitation Act. Discretion exercised by the High Court proceeded on correct appreciation of factual and legal position. It, therefore, does not call for any interference by this Court." (6) 1995 CLC 461 Kar. Messrs Ciba-Geigy (Pah.) Ltd. versus Muhamamd Safdar. My learned sister Majida Razvi, J. has held as under : "It may be pointed out here that under Article 163 of the Limitation Act, the petition for filing an application to set aside an order dismissing a suit for default of appearance of the plaintiff is thirty days." 12. I would like to refer the case of Honourable Supreme Court (1970 SCMR 76) Muhammad Sharif Khan and 4 others versus Board of Revenue. The Honourable Supreme Court has been pleased to hold as under:- "We are not prepared to accept that a client's responsibility ceases after he has briefed a counsel to appear on his behalf, it is his duty to keep in touch with his counsel and to find out the progress of the matter. If he cannot go personally, it is his duty to make proper arrangements for time information to be conveyed to him by either the counsel or his clerk." 13. The order passed in the J.M. 8/89 was agitated before D.B. in H.C.A. No. 85/81 filed by Izhar Fatima after dismissal of the H.C.A. The Parties were representated through their counsel and were attending the Court when order dated 6.4.1993 referred to above was passed. I would like to reproduce Order 9 Rule 8 CPC which reads as under :- "8. Procedure where defendant only appears.-Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." 14. The contention of Mr. Dewan Bashir is that the matter was fixed for hearing of CMA No. 1622/92 and objections to the award filed by the defendant and for non prosecution two (CMAs & objection to award) could have been disposed off only and not the entire suit is not tenable. The reading of order 9 Rule 8 CPC referred here to above is that where defendant appears and plaintiff does not appear when the suit is called for hearing the Court shall make an order that the suit be dismissed, unless defendant admits the claim. The use of word "shall" further provides unless the defendant admits the claim. Here in this matter defendant had not admitted claim of the plaintiff. The defendants filed objection to the award plaintiff/her counsel being absent there was not other option left to the Court except to dismiss the suit itself. 15. It would be pertinent to refer order 9 Rule 9 CPC which reads as under :- "9. Decree against plaintiff by default bars fresh suit.-(l) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit" 16. The contention that the plaintiff is a lady and was not aware of date is untenable; that absence wps wilful and deliberate. Admittedly suit was dismissed for non-prosecution on 6th April 1993 and this CMA was filed 9 months after the order i.e. on 10.1.1994. A part from the authorities referred here to above the reading of Order 9 Rule 9 is clear, in my humble view plaintiff has not been able to submit sufficient cause for non appearance when the suit was called for hearing. I have gone through the material placed with the matter and have also considered the case law cited by the parties and have come to the conclusion that no sufficient cause for restoration of the suit is made out and there is no substance in the application which otherwise hopelessly is time barred, consequently same is dismissed with no order as to costs. CMA No. 5318/94 1. Mr. Dewan Bashir has contended that Article 163 of the Limitation Act applies to suit only and not to arbitration proceedings. 2. That there is no limitation period prescribed for restoration of arbitration suit and as such residuary Article 181 of Limitation Act will apply in which period is of 3 years; that plaintiff is a lady and was not informed by her counsel abut the impugned order. She only came to known in the first week of January 1994 and immediately application dated 10.1.1994, referred here to above was filed for setting aside the impugned rder; that inquiry was made for a long time but learned counsel for the plaintiff did not inform her about the proceedings of the case. 3. CMA No. 5318/94 has been filed with a prayer that delay if any in filing application under Order 9 Rule 9 CPC my be condoned and the case be decided on merits. 4. In support of this application, affidavit of Izhar Fatima is filed. CMA is opposed and counter affidavit to this application is filed by Abdul Ghafoor son of Abdul Sattar attorney of defendants No. 6 and 7. Mr. KB. Bhutto has contended that application U/O 9 Rule 8 CPC (CMA 102/94) has been filed after about 9 months of the order dated 6.4.1993 without application for condonation of delay; that the instant application (CMA 5318/94) is filed on 25th October 1994 (i.e. after ab ut 18 months); that the plaintiff has raised contradictory contentions as to the period of limitation for setting aside the said order; that no explanation has been given by the j plaintiff for her absence on the date of hearing dated 6.4.1993 in her both applications i.e. U/O 9 Rule 9 CPC and U/S 5 of the Limitation Act; that plaintiff has shifted the blame of her absence upon her learned counsel so as to get scot free from her own legal obligations to attend her suit; that there is | no explanation of absence of the plaintiffs learned counsel for the above date j of hearing. !.. 5. I have heard the learned counsel of the parties at length and have gone through the material placed with the matter. As pointed out earlier here in above in CMA No. 10/94 was filed after about 9 months of the order dated 6.4.1993 and no sufficient cause for non appearance has been shown. This application was filed on 5.10.1994 (i.e. after about 18 months) from the date of order and the plaintiff has miserably failed to submit reasonable cause for non appearance or for condonation of delay. Application hopelessly is time barred, in view of the order in CMA No. 10/94 this CMA has become infructuous and consequently is dismissed with no order as to costs. (M.M.A.) Application dismissed

PLJ 1996 Karachi 518 PLJ 1996 Karachi 518 Present: hamid ALI MlRZA, J. SlKANDAR ALI and another-Appellants versus ABDUL RAHIM and another-Respondents Civil Revision No. 56 of 1991, dismissed on 19-3-1996. Civil Procedure Code, 1908 (Act V of 1908)-- —-S. 115 read with O. 9 r. 9 and Art. 14 of Limitation act (LX of 1908)--Suit for declaration-Dismissal of--Revision to-Suit was dismissed for nonprosecution-Proper remedy for applicants was to make an application under O. 9 r. 9 C.P.C. to set dismissal aside showing sufficient cause for non appearance which they failed but filed fresh suit on same cause of action-Held : It has not been shown that impugned order was illegal or suffered from any irregularity amounting to illegality-Findings of lower Courts are legal and call for no interference-Revision dismissed. [P. 520] A Applicant Mst. Rozan in person,. Mr. Ghulam Muhammad Rajput, Advocate for Respondent No. 1. Date of hearing: 19-3-1996. judgment This is a Civil Revision Application under section 115 C.P.C. directed against the order dated 2.10.1991 passed in Civil Appeal No. 40 of 1989 Sikandar Alt and another v. Abdul Rahim and another whereby the appeal filed by the applicants was dismissed. The brief facts of the case are that the applicants filed a suit for declaration that order dated 19.7.1973 of transfer of municipal shop No. 5/79 Pir Bukhari Jacobabad passed by respondent No. 2 was illegal, unlawful, ultra vires, mala fide, null and void and for permanent injunction restraining the respondent No. 1 from claiming the right of ownership over the said shop/hotel. The respondent No. 1 filed written statement wherein he stated that the said shop initially stood in the name of Muhammad Arif predecessor-in-interest of the applicants who passed on the said shop on receipt of pagri amount from him and since then he was paying rent to the municipality and was lessee of the said shop by virtue of the order No. 42 dated 19.07.1973 and was in continuous possession and has spent a sum of Rs. 40,000/- over the said shop. The applicants filed Appeal No. 1 of 1975 against the order dated 19.7.1973 before the Deputy Commissioner and Controlling Authority Jacobabad which was dismissed and respondent No. 11 was directed to pay a sum of Rs. 4,000/- to the applicant No. 2 as financial help to her. It is also stated that previous Suit No. 9 of 1985 filed by the applicants against respondent No. 1 was dismissed on 18.11.1987, therefore, the subsequent Suit No. 38 of 1988 was barred under Order 9, Rule 9 C.P.C The respondent No. 1 filed an application under Order 7, Rule 11 C.P.C. on 13.12.1988 which was heard and the said application was allowed and the plaint was rejected as per order dated 1.6.1989 against which Appeal No. 40 of 1989 was preferred which was also dismissed as per order dated 2.10.1991 passed by District Judge Jacobabad against which present Revision Application has been filed. I have heard the applicant 3Sio. 2 in person though initially she was represented by Mr. G. M. Parayani, Advocate and then by Mr. Hatif Khudai, Advocate, and then by Mr. Sharif Khattak, Advocate, ultimately Miss Farida Motan, Advocate, who also withdrew her power as per her statement on record that applicant No. 2 has lost her faith in her and accordingly as per order 5.3.1996 passed by this Court applicant No. 2 requested for time to engage a counsel which was granted and matter was fixed today for hearing. I have heard the applicant No. 2 is person and Mr. Ghulam Muhammed Rajput, learned counsel for respondent No. 1 None has appeared for respondent No. 2. Applicant has submitted that injustice has been done to her and the shop has been taken away from her which initially belonged to her husband. She stated that she had appealed against the order of respondent No. before the Deputy Commissioner and Controlling Authority but justice was not done by him and thereafter she filed a suit which was also dismissed, therefore, she filed second suit which was dismissed against which appeal was preferred but it was also dismissed by the learned District Judge, Jacobabad. Mr. Ghulam Muhammed Rajput, learned counsel for respondent No. 1 has argued that Suit No. 29 of 1985 was dismissed for non-prosecution on 18.11.1987 and subsequent Suit No. 38 of 1988 filed by applicants was barred by Order 9, Rule 9 C.P.C. as it was based on the same cause of action. He also argued that applicants have challenged the order of the Deputy Commissioner and Controller Authority, Jacobabad and the said order could be challenged within one year in view of Article 14 of Limitation Act but the suit has been filed much after the expiry of the stipulated period under Article 14 of Limitation Act. Para 13 of Suit No. 29 of 1985 Sikandar Alt and another v. Abdul Rahim and another is in respect of cause of action which is in same words as in para 15 of subsequent Suit No. 38 wherein applicants have admitted the filing of earlier suit and its dismissal for non-prosecution. Order 9, Rule 9 C.P.C. reads as follows :- "(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit." In view of the above provision, the proper remedy for the applicants was to make an application under Order 9, Rule 9 C.P.C. to set the dismissal aside showing sufficient cause for their non-appearance on the date when the suit was called for hearing. The applicants failed to resort to the said remedy but filed the fresh suit on the same cause of action which in terms of Order 9, Rule 9 C.P.C. was barred as the same has been on the same cause of action and between the same parties. It has not been shown that the impugned order was illegal or suffered from any irregularity amounting to illegality. I do not consider it necessary to touch the plea of applicability of Article 14 of Lamitation Act as this revision being dismissed on account of being barred under Order 9, Rule 9 C.P.C. The findings of the two Courts below on the said point is legal and proper and calls for no interference in this revision. In view of the aforesaid reasons and law, the revision application has no merits which is hereby dismissed. ' (MYFK) Application dismissed.

PLJ 1996 Karachi 520 PLJ 1996 Karachi 520 Present: hamid ali mirza, J. MRS. ZOHRA ZAIDI-Applicant versus MAJOR IFTIKHAR AHMED KHAN and another-Respondents Civil Revision Application No. 252 & 253/1991 dismissed on 3.3.1996. Civil Procedure Code, 1908 (Act V of 1908)- —-S. 115-Suit for declaration-Decreed to~Appeal allowed-Challenge to through revision application-Question of limitation-It is true that there is no period of limitation provided for filing civil revision, but delay of filing that revision beyond 90 days is to be explained and justified by applicant and if good cause is shown for delay, same could be condoned- Said principle has been law down keeping in view concept of justice, other wise "Sword of Democles" would hang over the head of successful party because loosing party could file a revision application at any time at his sweet will—Held : No sufficient cause has been shown in revision application or in affidavit, thereby vested right has been created in favour of respondent No. 2, Application dismissed. [Pp. 524 & 525] A & B 1994 SCMR 833, PLD 1982 Lah. 461 and PLD 1995 SC 399. Mr. YousafRafi, Advocate for Applicant. Mr. Muhammad All Sayeed, Advocate for Respondent No. 2. Dates of hearing: 2-10-1995 & 8-10-1995. judgment These are two civil revision applications filed under section 115 CPC directed against the common judgment and decree dated 23rd July, 1990, passed by V Additional Sessions Judge Karachi-South in Civil Appeals No. 36 and 37 of 1986, Mr. Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan and another whereby judgment and decree passed in suit No. 1799/74 M. Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan and Suit No. 469/69 filed on 6.3.1969 M. Anwar Khan Ghauri v. Major Iftikhar Ahmad Khan were set aside and appeals were allowed. Brief facts of the case are that respondent No. 2 M. Anwar Khan Ghauri first filed Suit No. 469/69 against the respondent No. 1 Major Iftikhar Ahmad Khan only for declaration that respondent No. 1 Major Iftikhar Ahmad Khan was his benamidar and had obtained the allotment of plot No. 24 situated on B-Street, Block-5, in Defence Officers Co-operative Housing Society Limited Karachi, admeasuring 1000 Sq. Yds. whereas M. Anwar Khan Ghauri the respondent No. was real owner of the said plot having paid the consideration for the allotment in the sum of Rs. 5,100/- to the Society. In the meanwhile during the pendency of the above suit in the month of March/April 1974, the applicant Mrs. Zohra Zaidi was offered the above said plot for sale by the respondent No. 1 Major Iftikhar Ahmad Khan on the ground that the was allottee of the same by virtue of allotment DS/K/A-2802 dated 8.4.1965 who after verifying the title of respondent No. 1 agreed to purchase the said plot for the sum of Rs. 52.000/- for that an agreement for sale dated 13.4.1974 (Ex. 16) was executed between the applicant and respondent No. 1 when the latter also paid blanche of sum of Rs. 5,825/- to the society out of the sale consideration of Rs. 52,000/- by a bank draft dated 13.4.1974 whereas the payment of Rs. 6,825/- was made by the applicant in cash to the respondent No. 1 and sale consideration amounting to Rs. 45,175/- out of total Rs. 52,000/- was paid to respondent No. 1 Major Iftikhar Ahmad Khan by the applicant Mrs Zohra Zaidi. After compliance of necessary formalities sub-lease in Form-A and thereafter physical possession of the said plot was delivered to the applicant by the society on 6.6.1974 and in the meanwhile building plan was got approved by the applicant for the purpose of raising construction from the Cantonment Board and he commenced the construction of bungalow thereon. The respondent No. 2 M. Anwar Ghauri filed another suit No. 1799/74 in the Court of Ill-Senior Civil Judge Karachi-South on 12th August, 1974, for the relief of possession of the said plot wherein applicant Mrs. Zohra Zaidi was also impleaded as defendant in the suit stating therein that respondent No. 2 M. Anwar Ghauri was the real owner of the said plot. The respondent No. 2 in the earlier Suit No. 469/69 also impleaded the applicant Mrs. Zohra Zaidi as defendant in the suit. The applicant and respondent No. 1 Major Iftikhar Ahmad Khan filed written statement and resisted the suit wherein the denied the contents of the plaint made in the both suits. Both suits were consolidated on 17.7.1979 and after recording the evidence of the parties both suits were dismissed on 9.9.1981 by the H-Senior Civil Judge Karachi. Against the above said judgment and decree passed by learned II-Senior Civil Judge, Karachi, respondent No. 2 M. Anwar Ghauri preferred Appeals Nos. 36 and 37 of 1986 which were heard and allowed by the V-Additional District Judge, Karachi-South, as per impugned judgment and decree dated 23rd July, 1990. I have heard Mr. Yousaf Rafi, learned counsel for the applicant, and Mr. Muhammad Ali Sayeed, learned counsel for respondent No. 2 and none has appeared for respondent No. 1 though he was duly served by publication. Mr. Muhammad Ali Sayeed learned counsel for respondent No. 1 has contended that the revision applications were hopelessly time barred therefore the said plea of limitation be heard and decided first before the other pleas raised in the revision application by the learned counsel for the applicant are heard. Mr. Yousuf Rafi, learned counsel for the applicant has argued that since there is no article in the first Schedule to the Limitation Act specifically providing period of limitation for filing a revision application in the High Court therefore in view of the circumstances of the present case, the revision applications could not be considered to be time Barred. Mr. Yousuf Rafi has further argued that till 1994 view of the Hon'ble Supreme Court of Pakistan was not that the revision should be filed within 90 days and further that office also did not raise any objection. He has placed reliance upon Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 S.C. 678). Mr. Muhammad Ali Sayeed, learned counsel for respondent No. 2 has argued that the revision applications have been filed about fifteen days short of a year therefore the same was hopelessly time barred keeping in view the period of 90 days for filing of revision petitions which has been followed by this Court. He has placed reliance upon Government ofN.W.F.P. Through Chief Secretary and three others vs. Abdul Malik (1994 SCMR 833), Abid Hussain and others vs. Aziz Fatima and others (£LD 1995 SC 399) and Lahore Municipal Corporation vs. Syed Nazir Hussain Shah and others (PLD 1982 Lahore 461) in support of his contention. In the instant case judgment and decree of the First Appellate Court was passed on 23.7.1990, application for certified true copy was made on 30.7.1990 and certified true copies of judgment and decree were delivered on 19.8.1990 while the revisions were presented in this Court on 1.8.1991. This would show that the revision applications were presented after eleven months and eleven days from the date when the copies of judgement and decree was delivered to the applicant or her advocate. Admittedly, there is no cause shown for the period exceeding beyond ninety days in filing the evision petitions, so also no affidavit has been filed to show the sufficient cause or justification of not preferring the revision petitions within reasonable time after the receipt of the certified true copies of judgement and decree. In Manager, Jammu & Kashmir, State Property in Pakistan vs. Khuda Yar and another (PLD 1975 SC 678) case the Hon'ble Supreme Court of Pakistan at page 698 has observed :-- "The principle laid down in these authorities is that revision petition filed beyond the unprescribed limitation of 90 days could also be entertained if the Court was satisfied as to the reasons for the delay. In the instant case, we find that an appeal was filed in the High Court having been subsequently discovered to be incompetent a request was made to the Court to treat the same as a revision with some additional ground. The explanation offered was that the right of the. petitioner to file a second appeal on account of dismissal in default of the first appeal had been extinguished by the gross professional misconduct and collusive behaviour of the counsel against whom proceedings were being initiated. It was stated at the bar by Mr. S.M. Zafar that in fact proceedings had already been initiated against the Advocate. Considering the allegation in the context of successive dismissals in default of the appeal as well as the application for its restoration, we are satisfied that this offered a satisfactory explanation of the laches and it is presumably for this reason that the learned Judge in the High Court did not raise any objection on this account. Since the Limitation Act is not applicable to a revision, the Court was under no obligation to consider the question of limitation, more so when the point was never raised by the Caveater before us. It may also be relevantly mentioned in this context that no Rule has been framed by any High Court under its rule-making powers prescribing limitation for revision. It is a well-known principle of the administration of justice that no litigant should be made to suffer at the hands of the Court. We have, therefore, no hesitation in overruling the objection taken on the ground of limitation." From the above cited case it would appear that the Court is to be satisfied as to the reason for the undue delay and in the cited case reasons for the delay were stated whereas in the instant case no reason has been assigned or argued except that there was no fixed limitation for filing revision. In Government of N.W.F.P. Through Chief Secretary and three others vs. Abdul Malik (1994 SCMR 833) case at page 839 the Hon'ble Supreme Court of Pakistan has held that:- "The above-quoted extracts from the above last two cases of this Court indicate that this Court has tacitly approved the practice that a civil revision is to be filed within 90 days and in case of delay, the same is to be explained, though while considering the question of delay in filing of a civil revision the Court will be more liberal as compared to the approach in an application for condonation of delay of the limitation period provided for in the First Schedule to the Limitation Act for any legal proceedings. It is also evident that a High Court can exercise suo motu reversional power even after the expiiy of the above period of 90 days as there is no practice obtaining for the exercise of suo motu revisional power within a particular period. We are in respectful agreement with the above two judgments of this Court. We are also inclined to hold that though there is no period prescribed in the First Schedule to the Limitation Act for filing a civil revision but it is to be filed after the expiry of 90 days provided the petitioner makes out a good case for condoning the delay. If we were to take a contrary view, it will prolong the agony of the adversary who succeeded in the Court below as the losing party will be able to file a revision application at any time at his sweet will. This will run counter to the basic concept of justice, i.e. litigation should be finalised as early as possible without any delay. We are further inclined to take the view that a High Court can exercise revisional jurisdiction suo muto at any time without being bound by any period of limitation provided it fosters the cause of justice and the dictates of justice so demand and not in every case." In the cited case referred above it would be clear that delay of filing civil revision beyond 90 days is to be explained and justified by the applicant and if good cause is shown for the delay, the same could be condoned and the said principle has been laid down keeping in view the concept of justice, i.e. litigation should be finalised as early as possible without any delay otherwise "Sword of Democles" would hang over the head of the successful party because the losing party could file a revision application at any time at his sweet will. In the instant case no cause what to say of good cause for condoning the delay of more than eight months beyond ninety days has been shown by the applicant. It cannot be said that there has been practice of this Court that revision applications could be filed beyond ninety days as a matter of course. As far as in 1975, as held in the above case law (PLD 1975 S.C. 678) it was held that if revision is filed beyond ninety days period then one has to satisfy the Court as to the reasons of delay for not filing within the said period. Next case cited is Abid Hussain and others vs. Aziz Fatima and others (PLD 1995 SC 399) wherein the Hon'ble Supreme Court of Pakistan considered the case of Karamat Hussain and others vs. Muhammad Zaman and others (PLD 1987 SC 139), Riasat All vs. Muhammad Jaffar Khan and others 1991 SCMR 496) and Manager, Jammu and Kashmir State Property in Pakistan vs. Khuda Yar (PLD 1975 SC 678) and finally observed :- "However, this does not mean that this Court intended to extend such period of ninety days without placing any onus upon the petitioner to explain the delay. Since the circumstances of the present case did not admit of any concession which could be shown by the High Court in favour of the petitioners in this behalf, it appears that the discretion exercised by the learned Judge of the High Court was proper and thus no exception can be taken to the same." In the cited case the counsel for the petitioner failed to offer any plausible explanation in respect of delay as the ground of refiling the revision was delayed because the revision was kept by him, in order to enable the parties to arrive at a compromise but when same was not possible the revision was filed again which ground was not considered to sufficient cause. In Lahore Municipal Corporation vs. Syed Nazir Hussain Shah and others (PLD 1982 Lahore 461) case my learned brother Judge in Chamber at page 464 has observed :- "There is also considerable force in the contention of the learned counsel for the respondents that since this revision petition has not been filed within reasonable period of the acceptance of the appeal by the learned Additional District Judge, and no explanation is forthcoming for the delay, the petitioner is not entitled to any relief in exercise of the revisional jurisdiction of this Court under Section 115, CPC." It is true that there is no period of limitation provided for filing civil revision but it would appear from the cited case law that the superior courts have as a matter of practice followed and applied ninety days period of limitation and have also entertained civil revisions after ninety days on showing sufficient cause for the delayed period. In the instant case, no sufficient cause has been shown in the civil revision application or in the affidavit, thereby vested right has been created in favour of the respondent No. 2, which could not be taken away without sufficient cause being shown by the applicant for the delayed period. In the circumstances contention of learned counsel for the applicant has no force and merit. In view of the stated facts and the case law cited above, the revision applications having been filed after more than eight months exceeding beyond ninety days without showing any good cause for the delay, are time barred hence the same are dismissed with no order as to costs. (MYFK) Application dismissed.

PLJ 1996 Karachi 526 PLJ 1996 Karachi 526 Present: hamid ali mirza, J. M/S MUSTAFA OIL MILLS-Appellant versus MUHAMMAD ASIF-Respondent F.R.A. No. 557 of 1994 dismissed on 14-3-1996. Sindh Rented Premises Ordinance, 1979- —S. 21-E^ectment petition-Acceptance of--Challenge to~Whether respondent required godown premises for personal need in good faith-­ Question of-In fact appellant/tenant has admitted in cross-examination that respondent/landlord needed godown premises for his own need-­ There is no dispute, that under the law, landlord fr is able to prove his need in good faith, he would be entitled to possession of premises and further difficulties if any of tenant appellant would also not debar land lord from getting possession-Held : Existence ofbonafide need would be sufficient to order eviction of a tenant, appeal dismissed. [Pp. 527 & 528] A to C 1993 SCMR 1559, 1990 CLC 698 and 1988 SCMR 819 ref. Mr. MushirAlam, Advocate for Appellant. Mr. Suleman Kassam, Advocate for Respondent. Date of hearing: 14-03-1996. judgment This is an appeal under Section 11 of Sindh Rented Premises Ordinance 1979 (hereinafter called Rent Ordinance) directed against an order dated 1-8-1994 passed by IV-Senior Civil Judge and Rent Controller Karachi-South in Rent Case No. 121/93 (Muhammad Asif vs. M/s. Mustafa Oil Mills) whereby an application filed under Section 15 of the Rent Ordinance by the respondent/landlord was allowed and appellants/tenants were directed to put the respondent in possession of the premises godown within a period of six months, hence this appeal. The brief facts of the case are that respondent/landlord filed ejectment application under Section 15 of the Rent Ordinance against the appellant/tenant in respect of property bearing No. 12, Sheet No. K-12, New Survey No. LY-5, Chakiwara Road, Karachi, on the ground that he needed the said premises for his bonafide personal need in good faith as he would open his business of sale of iron rods and bars and would fabricate the same at the small scale. The appellant/tenant in written-statement denied the said requirement of the respondent/landlord to be based on good faith. The learned Rent Controller in view of the pleadings of the parties settled point for determination viz "whether applicant requires the premises for this personal bona fide use". The respondent/landlord filed his affidavitin-evidence as Ex. A/1 and produced photo-copy of extract from the Property Register of Karachi District in respect of properly showing to be in his name as Ex. A/2, photo-copy of notice under Section 61 of Income Tax Ordinance as Ex. A/3, photo-copy of form of return under Income Tax Ordinance as Ex.A/4, photo-copy of wealth statement as Ex. A/5, photo-copy of the statement of total income as Ex. A/6, photo-copy of notice under Section 61 of Income tax Ordinance as Ex. A/7, photo-copy of return of income tax for the year 1991 as Ex. A/8, photo-copy of form of return of total income for the year 1989-90 as Ex. A/9 photo-copy of notice of demand as Ex.A/10 and photo-copy of assessment form as Ex. A/11. Appellants/tenant filed affidavitin-evidence of Mossa attorney of the appellants. Both the parties were cross- - examined at length by the respective counsel for the parties. I have heard Mr. Mushir Alam, learned counsel for the appellants, and Mr. Suleman Kassam, learned counsel for the respondent, and perused the record and proceedings of the case and the case law cited by the respective learned counsel for the parties. Learned counsel Mr. Mushir Alam has argued that the respondent/landlord is already in service and the previous landlord had also filed ejectment application against the appellants/tenants but same was rejected therefore the need of the present respondent/landlord in whose feavour property has been gifted is tainted with malafide and is not based on good faith. In support he has placed reliance upon Razia Sultana vs. Water & Power Development Authority (1993 MLD 477), Syed Muzaffar Hussain Jafri vs. Khawaja Fazal Ahmad (1993 MUD 1707) and Moizur Rahman vs. Mrs. Fakhra Javed (PLD 1991 Karachi 452). Mr. Suleman Kassam learned counsel for the respondent/landlord has argued that in para-2 of the ejectment application the respondent/landlord has stated that he needed the godown premises for his personal bonafide need and has reiterated the same in paras-3 to 10 of his affidavit-m-evidence and the testimony of the respondent in the cross-examination could not be shaken by the learned counsel for the appellants. Mr. Suleman Kassam has further argued that the respondent/landlord has proved that he did not possess any other commercial premises except the one in dispute in the entire city of Karachi and has given detailed particulars about his need in good faith and further has given undertaking that he would occupy the said godown premises and carry out the stated business in the premises. Mr. Suleman Kassam has further argued that it was not necessary that the respondent/landlord should first resign and then to apply for the possessions of godown premises in occupation of the appellants/tenants considering the respondent/landlord could not be made to wait for indefinite period till the final order in respect of ejectment is passed by the final court. He has further taken me through the cross-examination of the appellant's witness Moosa wherein he has admitted that the previous Rent'Case No. 373 of 1986 was filed against one of the partners of M/s. Mustafa Oil Mills and the ejectment was refused on the ground that the case was not filed against M/s. Mustafa Oil Mills and further that appellants/tenants were not prepared to vacate the premises even if the respondent genuinely needed the same as former would face difficulties because the premises were being used by them for business. The witness also admitted that respondent need the premises for his personal need but whether there was any such law. He in the cross-examination further stated that he did not know if the premises was suitable for the need of respondent and admitted that respondent never asked for enhancement of rent. He has also stated that the appellants were not prepared to vacate the case premises even the respondent gave undertaking in writing on Oath before his Court that in case the appellants vacated the premises respondent would do his own business. He has placed reliance upon Muhammad Iqbal and another vs. Mst. Saeeda Bano (1993 SCMR 1559), Syed All vs. Abdul Ghaffar (1989 ALD 315(2), Tariq Shaft vs. Mst. Shamshad Begum (1990 CLC 698) and Qamruddin vs. Hakim Mahrnood Khan (1988 SCMR 819) in support of his contention. The only point for the consideration in this appeal is whether the respondent has proved his need in good faith. The respondent/landlord in para-2 of his eviction application has stated about his need in good faith in respect of the godown premises and has reiterated by giving full details in his affidavit-in-evidence in paras-2 to 10. The appellants/tenants in their lengthy cross-examination could not shake the testimony of the respondent/landlord in respect of their need of godown premises in good faith. Even no suggestion was made to the respondent as he was in service therefore he would not be able to carry on the said business. Mere fact that earlier ejectment application filed by previous owner was disallowed at the appellate stage on the technical ground that the application was not filed against the tenants but was filed against one of the partner would not by itself negate the good faith for personal requirement of the respondent/landlord. So far the suggestion that the premises was 'Pugri' premises which was paid at the time of inception of tenancy, which fact though denied by the respondent/landlord, would not dis-entitie the respondent/landlord from seeking possession of the godown premises if he I proved his case under the law for his entitlement to the possession. In fact, the appellants/tenants Moosa in the cross-examination has admitted that respondent/landlord needed the godown premises for his own need but questioned about latter's entitlement under the law and further the former would be put into great difficulties. There is no dispute, that under the law, landlord if is able to prove his need in good faith, he would be entitled to possession of the premises and further difficulties if any of the tenant/appellant would also not debar the landlord/respondent from getting possession of his own premises. In Fazal Azim and another vs. Tariq Mahmood and another (PLD 1982 SC 218) Supreme Court of Pakistan in the said case observed that the landlord seeking eviction on the ground of personal requirement cannot be expected to site ideal for the period of time during the pendency of eviction proceedings and in case the landlord himself is in a gainful occupation during the said period, it would not negate the assertion of bona fides on his part. In Sabir Hussain vs. Additional District •Judge (NLR 1984 UC 459) (Lahore) case my learned brother Judge in Chamber observed that mere fact that son of the applicant for whom the shop premises was needed in good faith was an employee of the National Bank would not be sufficient to conclude that the shop in dispute was not required by him considering that during the period of non-vacation of shop in question the said son Ahsanul Haq would keep him engaged to ern his livelihood. In Muhammad Iqbal and another vs. Mst. Saeeda Bano (1993 SCMR 1559) their Lordships of Supreme Court at page 1562 observed Thai if the landlady wanted her son to establish a business instead of remaining employed, then how it could be said that such requirement lacks bona fides as it woudl be a matter of consideration for the party to leave his job in order to have better propsects or to continue to be employed therefore not other person including the tenant could question such a decision of landlord. In Tariq Shafi vs. Mrs. Shamshad Begum (1990 CLC 698) case my learned brother Judge in Chamber observed at page 702 that the existence of bonafide need would be sufficient to order eviction of a tenant and element of hardship to a tenant could not be imported while deciding the eviction applications the ground of personal bona fide need as law has not laid down any humanist approach considering that the Judge has to deal with hard facts and is supposed to decide the case on legal evidence alone. The facts of the cases cited by the learned counsel for the appellants are quite different and distinguishable to the facts of instant case considering also the principle laid down by the Supreme Court in the cases cited by the learned counsel for the respondent therefore the cases cited by learned counsel for the appellant would be of no help to him. In view of the aforesaid reasoning and the case law, the contentions of the learned counsel for the appellants have no months, consequently appeal is dismissed. The appellants are, however, givne sixty days period to vacate the godown premises, subject to the condition that the appellants would deposit the rent for the said period in the office of Rent Controller. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 530 PLJ 1996 Karachi 530 Present: HAM1D ALI mirza, J. Syed MEHMOOD ALI--Appellant versus RASHIDULLAH SAMMA-Respondent F.R.A. No. 253 of 1992 dismissed on 13-3-1996. (i) EJjectment- —Ejectment application-Maintainability of~Ejectment application may be filed by anyone of legal heirs/owner~In the same way attorney can also on behalf of one of co-owners can file ejectment application. [P. 534] B & C PLJ 1976 Kar. 303, PLJ 1983 Kar. 92 and 1857 SCMR 1288 ref. (ii) Sindh Rented Premises Ordinance, 1979- -—S. 21 read with Ss. 10 (3) and 18-Ejectment petition—Acceptance of— Appeal to~Appellant/tenant even after service of intimation notice deposited rent in the name of deceased Mst. Halima Bai so also continued to deposit even after her death, therefore, said deposit of rent in the name of deceased knowingly, was not legal, hence he was defaulter in payment of rent-Appeal dismissed. [P. 534] A 1995 SCMR 204, PLD 1993 Lahore 101,1995 SCMR 448 and 1985 SCMR 24 ref. Syed YousafAli, Advocate for Appellant. Mr. SajjadAli Shah, Advocate for Respondent. Date of hearing: 13-3-1996. judgment This is First Rent Appeal directed against an order dated 1.4.1992 passed by the 1st Senior Civil Judge and Rent Controller, Karachi-Central, in Rent Case No. 713/85, Rashidullah Samma v. Syed Mehmood All whereby an application filed under section 15 of the Sind Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) was allowed against the appellant/tenant and was directed to hand over the possession of the premises in question to the respondent/landlord within sixty days from the date of impugned order. Brief facts of the case are that respondent/landlord filed eviction application against the appellant/tenant in respect of shops No. 1, 2, & 3 and garage of House No. 3-H-5/1, Nazimabad, Karachi, which premises were on rent at the rate of Rs. 300/- per month on the ground that the appellant/tenant failed to pay rent to the respondent/landlord even after service of intimation under section 18 of the Rent Ordinance and further that the appellant/tenant has, without consent of the respondent/landlord, dismantled the partition walls of all the three shops and has converted the three shops into one shop and back side wall of one shop has also been broken and badly damaged to make a free access to said garage thereby has materially impaired the value and utility of the said premises, the said eviction application was resisted by the appellant/tenant who filed written statement wherein he denied to have committed default in the payment of rent and stated that he has been depositing rent in Misc. Rent Case No. 2938 of 1978, Ejectment Rent Case No. 3922 of 1978 and ultimately in Ejectment Rent Case No. 713/85 from 18.7.1978 till 20.8.1984 in the name of deceased Halima Bai. He has also stated that copy of the mutation register dated 1.3.1983 in the name of respondent/landlord is defective which has been obtained by suppressing the material fact from the concerned department and it did not amount to a title and full ownership of the properly as the names of three daughters were not mentioned in the said copy of mutation register. It is also stated that Ejectment Case No. 3922/78 filed by Mst. Halima Bai was finally dismissed on 28.1.1980 for non prosecution wherein he has deposited rent and in fact he had deposited rent in excess therefore he subsequently made an application for withdrawal of excess amount of rent which was allowed by the Rent Controller. The respondent/landlord filed affidavit-in-evidence of his attorney Israr Ahmad and produced photocopy of letter to Manager, United Bank Ltd., as Ex. A/1, attested copy from register of mutation dated 13.11.1977 as Ex. A/2, reply of the bank dated 19.1.1980 as Ex. A/3, reply of the appellant/tenant as Ex. A/4, reply of notice under section 18 dated 12.11.1984 as Ex. A/5. The appellant/tenant filed his own affidavit and produced certified true copy of application under section 13(2)(i) as annexure A, photocopy of general power of attorney in favour of Kalimullah annexure report of Nazir annexure C, two photocopies of rent receipts as annexures and B, money order coupon annexures F & G, postal receipts as annexures H & I, photocopy of order in Rent Case No. 3922/78 as annexure 1-2, application for withdrawal of rent in Rent Case No. 3922/78 as annexure 1-3, photocopy of statement of rent deposited in Court as annexure 1-4 & 1-5, seven photocopies of rent receipts as annexure J to P, photocopy of Karachi Electric Supply Corporation's bill as annexure Q. Learned Rent Controller settled as many as four issues and held that ejectment application was maintainable and that appellant/tenant was defaulter in the payment of rent while the issue as to whether value and utility of the premises were impaired, it was answered in the negative and in view of the finding on issue No. 2, eviction of the appellant/tenant was ordered. I have heard Syed Yousuf Ali, learned counsel for appellant and Mr. Sajjad Ali Shah, learned counsel for respondent and perused the record and proceedings of the case and the case law cited by the parties' learned counsel. The only point for consideration in this appeal is whether the deposit of rent in Misc. Rent Case No. 2938/78, Ejectment Rent Case No. 3922/78 and thereafter in Ejectment Rent Case No. 713/85 (out of which this present appeal has arisen) in the name of deceased Mst. Halima Bai by the appellant/tenant after the expiry of thirty days period of service of intimation notice dated 31.10.1983 under section 18 of the Rent Ordinance would be legal tender of rent. It is admitted by the respondent's learned counsel that the appellant/tenant has made deposit in Misc. Rent Case No. 2938/78 as per statement at page 111 of the R & P, in ejectment rent case No. 3922/78 as per statement at page 131 of the R & P of the case and in rent case No. 713/85 as per statement at page 133 of the R & P. It is also admitted by the learned counsel for appellant that the payments have been made in the name of deceased Halima Bai the mother of the respondent/landlord. The appellant's learned counsel also admitted the receipts of intimation notice dated 31.10.1983 under section 18 of the Rent Ordinance which also stood proved by his reply dated 12.11.1983 through his counsel to the respondent/landlord. Learned counsel for appellant/tenant also admitted that appellant tenant knew about the death of Mst. Halima Bai and also knew that legal heirs in view of the order dated 28.1.1980 passed in Ejectment Rent Case No. 3922/78 which appeared at page 125 of the R & P as well as could also be inferred from the trend of the cross examination by him to the respondent's landlord's attorney wherein he suggested the names of the daughters of deceased Mst. Halima Bai. Syed Yousuf Ali, learned counsel for appellant also admitted in the Court that the appellant/tenant did not deposit the rent in the name of deceased Mst. Halima Bai even after the receipt of intimation notice under section 18 of the Rent Ordinance because the attested copy of extract from the register of mutations was not a title document and further that the respondent/landlord failed to produce succession certificate. In the instant case the appellant/tenant has not tendered rent to the respondent/landlord in terms of section 10(3) of Rent Ordinance only on the ground, that the copy of extract from the mutation register was not sufficient to confer title upon the respondent and that no succession certificate was produced by him. It is not case of the appellant that the respondent/landlord refused or avoided to accept the rent. In Abdul Malik v. Mrs. Qaiser Jehan 1995 SCMR 204) at page 206 para 3 it was observed :- "Section 10(3) of the Ordinance provides that where the landlord refuses to accept rent, it should be sent to him through postal money order or it should be deposited with the Controller within whose jurisdiction the premises is situate. This provision will apply where there is refusal or avoidance to accept the rent. Certain cases in which there may be uncertainty, fraud or misrepresentation the tenant may be permitted to invoke the principles of this provision. However, this cannot be made a handle for harassing the landlord because everyone knows that it may be easier for the tenant to deposit the rent in Court, but difficulties are faced by the landlords for its withdrawal. Therefore, in such cases it has to be seen that while depositing the rent in Court there has been refusal or avoidance and further that the conduct of the tenant is not contumacious or with mala fide invention to harass the landlord. In the facts of the present case the respondent had served a notice informing the appellant that the property has been gifted to her. Instead of making any inquiry about the title he started depositing rent in Court. The respondent had supplied a copy of the gift deed also and from evidence it seems that Haji Muhammad Bashir, the original owner had gifted to his nephews who had gifted to the respondent who was closely related to them. In these circumstances, the deposit of rent without replying to the notice of the respondent under section 18 of the Ordinance could not be held to be a bona fide conduct on the part of the appellant." In Habib Bakhsh v. Mst. Bilquis Begum and others (1995 SCMR 448) at page 450 para 4 it was observed :- "Since the petitioner was insisting not to pay rent to the ' deceased purchaser, the deposit of rent by him with the Rent Controller through Miscellaneous Rent Application in the name of the previous owner, who had ceased to have any interest in the tenement was of no legal consequence." In Muhammad Yousafand another v. Nadimuddin Malik (PLD 1993 Lahore 101) learned Judge in chamber at page 104 has observed :-- "So, in view of the law laid down in the aforementioned cases, I am convinced that in the present case the appellants had been served with a valid notice under section 13-A of the Urban Rent Restriction Ordinance, 1959, and relationship of landlord and tenant between the parties had come into existence. Admittedly the appellants failed to tender or pay any rent to their new landlord, i.e. the respondent and thus rendered themselves liable for immediate ejectment. Depositing rent in the office of the Rent Controller in the name of the previous landlord would not be considered a valid tender or payment of rent." In Syed Azhar Imam Rizvi v. Mst. Salma Hhatoon (1985 SCMR 24) at page 27 it was observed :- "In these circumstances the failure of the petitioner to offer the rent to respondent landlady even after October, 1979 was without any justification. The mere fact that the application for his ejectment was pending or that an order under section 13(6) had not yet been passed would not absolve him his duty under the Rent RestrictionLaw to pay/offer the rent to the landlady each month on time.... The receipt of the copy of the ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of section 13-A of the Ordinance. And the mere fact that after about a year he made the deposit under compulsion of an order of deposit made by the High Court will not make any difference." In view of the admitted position and the case law cited it stood proved that deposited of rent by the appellant/tenant even after service of intimation notice under section 18 of the Rent Ordinance was made in the name of deceased Mst Halima Bai so also continued to deposit even after the death of deceased Mst. Halima Bai; when the appellant knew about the death of Mst. Halima Bai and the names of legal heirs of deceased therefore the said deposit of rent in the name of deceased Mst. Halima Bai was not legal and due tender under the Rent Ordinance, hence, the appellant/tenant was defaulter in the payment of rent if not from the date of order dated 28.1.1980 passed in Rent Case No. 3922/78 at least from the date when notice of intimation under section 18 dated 31.10.1983 was received and replied on 12.11.1983 till the filing of ejectment application on 11.3.1984 and thereafter till he made deposit in the name of respondent/landlord when an order under section 16(1) of the Rent Ordinance dated 22.8.1984 was passed. The contention of the learned counsel for appellant that ejectment application is not maintainable and it is not filed on behalf of all legal heirs of deceased Mst. Halima Bai has no merit considering that any one of the legal heirs/owner is entitled to file ejectment application. It will not be out of place to state here that in FRA 76/88 filed by respondent/landlord in this Court it has been mentioned by my learned brother Mamoon Kazi, J. in para 2 of the order dated 1.1.1991 that "learned counsel for respondent agrees that the application which was filed by one co-owner of the property was maintainable...." therefore, the said contention has not merit. Next contention of the learned counsel for appellant is that the ejectment application has been filed through general power of attorney Israr Ahmad Khan who possessed attorney from one Rashidullah Samma therefore ejectment application was not maintainable. This contention has also no force considering that when one of the co-owners can file ejectment application then the attorney can also on behalf of one of the co-owners can file ejectment application. The case law cited PLJ 1976 Kar. 303, PLJ 1983 Kar. 92 and 1987 SCMR 1288 by the learned counsel for appellant has no application to the facts of the instant case. In view of the aforesaid reasonings and case law I do not find merit in this appeal which is hereby dismissed. However, appellant is given sixty days period to vacate the premises subject to deposit of rent for the said period in the office of Rent Controller. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 535 PLJ 1996 Karachi 535 Present: HAMID ALI MlRZA, J. SHAMSHAD ALI QURESHI-Petitioner versus ADDITIONAL CONTROLLER OF RENTS etc.—Respondents C.P. Nos. S. 63, S.64 and S. 65 of 1995 dismissed on 13-3-1996. Constitution of Pakistan, 1973-- -—Art. 199 read with Cantonment Rent Restriction Act, 1963, S. 17(8) and S. 27-Ejectment-Claim for arrears of rent-Whether holding of an inquiry is necessary before passing tentative rent order—Question of— Land lord must not straightaway be believed and an order about deposit of pre-trial rent, as per whimsical desire or oral claim of landlord, should not be made and Rent Controller should act with prudence and make a rational and fair order by application of judicial m nd and same should be based on some valuable material produced by parties-Held : Rent Controller has not to enter upon a preliminary enquiry of summary character by recording evidence for purpose of passing tentative rent rder-Further held : Controller has not said that he by holding an enquiry intended recording of evidence inquiry could be made by going through documents produced by parties on record-Impugned order cannot be termed to be unlawful, consequently petitions are dismissed in limine. [P. 539] A & B 1993 CLC 655 ref. Mr. Dilawar Hussain, Advocate for Petitioner Mr. Faizanual Hag, Advocate for Respondent No. 2 and 3 in C.P. No. S-63. Date of hearing : 13-3-1996. order These are three Constitutional petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan directed against the orders dated 15.2.1995 passed in Ejectment Rent Case Nos. 36, 37 and 38 of 1994 filed by the same landlord/petitioner by Additional Controller of Rents Clifton Cantonment Karachi in respect of different portions of premises constructed on Plot No. B-/31, Madinabad, Delhi Colony, Karachi in possession of different tenants/respondents whereby it has been held that Rent Controller/Additional Rent Controller was competent to hold an inquiiy before passing tentative rent order under section 17(8) of the Cantonment Rent Restriction Act, 1963. Brief facts of the case are that the petitioner/landlord filed three Ejectment Applications No. 36, 37 and 38 of 1994 under section 17 of the Cantonment Rent Restriction Act 1963 against the respondents/tenants wherein it has been stated that respondents/tenants were in arrears of rent for more than three years and claim for forty months rent was made when the respondents/tenants filed application for recording the evidence on the question of arrears of rent claimed by the petitioner before passing the tentative rent order under section 17(8) of the Rent Ordinance. The learned Rent Controller as per impugned order held that no order could be passed by the Controller except after holding an enquiry as per section 27 of the Rent Act. I have heard Mr. Dilawar Hussain, learned counsel for the petitioner, Mr. Faizanul Haq, learned counsel for respondents No. 2 & 3 in C.P.C No. S-63/95 and respondent No. 2 in C.P.C. No. S-64/95 and none has appeared for the rest of the respondents. Mr. Dilawar Hussain has argued that sub-section (8) of section 17 of Cantonment Rent Restriction Act 1963 does not provide holding of an inquiry by recording evidence for the purpose of passing tentative rent order therefore impugned order is not legal and proper therefore liable to be set aside in these petitions. Mr. Faizanual Haq has argued that the petitioner has claimed rent from more than three years and for that purpose the respondents/tenants would lead evidence to prove the payment otherwise the respondents/tenants who being poor would not be able to deposit rent for more than three years who otherwise have paid rent would be evicted from their respective premises therefore inquiry to ascertain the arrears of rent was necessary hence the impugned order was legal and proper. Sub-section (8) of section 17 of the Cantonment Rent Restriction Act 1963 reads :- "(8) On the first hearing of proceeding under this section or as soon thereafter as may be but before the issues are framed, the Controller shall direct tenant to deposit in his office before a specified date all the rent due from him, and also to deposit regularly till the final decision of the case, before the 5th day of each month, the monthly rent which subsequently becomes due, and if there be any dispute as to the amount of rent due. the Controller shall determine such amount approximately. The above provision of the Rent Act states that in case of disagreement as to the amount of rent due, the Rent Controller would determined the rent approximately and the said order of deposit of rent would be a provisional and tentative in nature. The above provision of Rent Act does not state about holding elaborate inquiry by recording evidence. In Muhammad Tufail versus Mst. Viran Bibi (1993 CLC 655) case my learned brother Judge in Chamber observed at pages-657 and 658 of para-4 :- "Learned counsel for the appellant rightly urges that as against a document in existence, prima facie supporting the standpoint of the tenant, oral assertion of the landlady, having nothing in support, was given preference and accorded recognition by the learned Rent Controller, with no legal or equitable justification. Execution of the said agreement of tenancy will, of course, be proved legally by examining the scribe and the marginal witnesses, but that exercise will be undertaken when the matter proceeds further and the parties are called upon to lead evidence in support of their assertions. The learned counsel for the appellant maintains that Allah Ditta, late landlord, was not an unwise person and had got form the tenant an amount of Rs. 6,800/-, as rent from 1.12.1978 to 31.7.2000, preceded by a similar act of having obtained in advance an amount, as rent in lump sum from May, 1973 to November, 1978. At that time, it is pointed out, the small strip of land in question could not even fetch as much sale price, and it could not be said that Rs. 25 was too meagre a rate of rent. It is to be noted that according to Viran Bibi herself, as stated in the eviction petition, this was the monthly rent, to begin with. The site had subsequently been converted into a Verandah or a shed for commercial use, warranting enhancement in rent, as huge as 12 times, as she claimed. This the landlady had to establish by adducing evidence and there she ought not to have been believed, in the manner it has been done by the learned two Courts below, in an absolutely credulous manner. It is in situations like this that superior Courts of the country have desired that a landlord must not straightaway be believed, and an order about deposit of pre-trial rent, as per whimsical desires or oral claim of the landlord, should not be made, and Rent Controller should act with prudence and make a rational and fair order. It has been pronounced in PUD 1983 Lahore 574 and 1986 CLC 1731 (Karachi) that it is obligatory for the Rent Controller to make a tenative determination about rate of rent payable by the tenant, by application of judicial mind, so that such an order does not create headship for either party. Such determination should be based on some valuable material and have nexus with the rate prevailing in the area, due regard having been given to the type, size and location of the building. Even in the ruling relied upon by the learned counsel for the respondent (landlady), 1990 CLC 1156 (Lahore), it has been observed that where there is a dispute about rate of rent or amount of rent due, Rent Controller is required to determine the same approximately, subject to its final determination in the course of further proceedings, or at the end thereof. If no documentary evidence is instantly available, which could be of any assistance in the exercise, judicial guess or estimation, to work out of fair rate, could be an answer and a suitable methodology in finding a way out of the predicament. Even in PLD 1990 SC 1201, another authority cited in his support by the learned counsel, it has been pronounced that tenant, having no right of appeal against a tentative pretrial rent order will have a right to challenge correctness of the determination, at the final stage, after his defence as defaulter is struck off and his eviction is ordered and heagitates against it. Rent Controller does enter upon a preliminary inquiry of summary character before making an order under section 13(6); and if he acts in a wholly fanciful and arbitrary manner, such a conduct could not evidently be approved of, for it would not advance ends of justice,, and may work immense hardship and cause irretrievable injury to a party to the litigation, if too fabulous an amount or too meagre a rate of rent, as the case may be, is fixed as tentative rent, with a requirement for payment of arrears of rent, stretching over a long period. The intention of law is not to embark upon a thorough inquiry of conclusive nature at that preliminary stage of the proceedings." In Muhammad AH vs. Shafiq Ahmed (1992 MLD 801) case my learned brother Judge in Chamber at pages-803 and 804 observed :- " ............................... Though the proceedings under the Rent Laws were designed to be summaiy, yet those ought not to be made more summary by excluding inquiry into the disputed questions of fact and non-application of mind by Tribunal to them for their proper decision. After all, these proceedings lso affect rights of the parties. When I look at the matter from this angle, I get a strong expression that the dispute about violation of rent direction and its consequential legal effects has been tried to be resolved in a perfunctory manner with unsatisfactory results." Section 27 of the Cantonment Rent Restriction Act 1963 reads :- "27. Procedure and power of Controller-No order under section 7, 8, 13, 15, 17 or 19 of this Act shall be made by the Controller except after holding an inquiry. (2) For the purposes of holding an inquiry under this Act, the Controller and the appellate Court shall have the same powers as are vested in Court under the Code of Civil Procedure, 1908 (Act V of 1908), when trying a suit in respect of the following matters, namely :- (a) summoning and enforcing attendance of any person and examining him on Oath ; (b) compelling the discovery and production of any document and other material evidence; and (c) issuing a commission for the examination of witnesses." The sub-section (1) of section 27 referred to holding an inquiry for the purpose of final orders to be passed under sections 7, 8, 13, 15, 18 and 19 of the said Act by the Controller. The said inquiry would not relate to the tentative or provisional orders to be passed under the Rent Act, however, as held in the case of Muhammad Tufail vs. Mst. Viran Bibi (1993 CLC 655) the landlord must not straightaway be believed and an order about deposit of pre-trial rent, as per whimsical desire or oral claim of the landlord, should not be made, and Rent Controller should act with prudence and make a rational and fair order by application of judicial mind so that such an order does not create hardship for either party and the same should be based on some valuable material produced by the parties and the Rent Controller has not to enter upon a preliminary enquiry of summary character by recording the evidence for the purpose of passing tentative rent order. The said tentative order should determine the rate of rent in case disputed so also the arrears of rent approximately on the basis of material available on record considering prevailing rate in the area, and size and location of the building by no means the above provision of law provide recording of evidence as it would cause undue harassment to the landlord in case the tenant is a person who has no principles in the life and thereby delay and defeat the main objects of summary disposal of the application (words not decipherable). In the impugned order learned Rent Controller has not said that he by holding an inquiry intended recording of evidence. Inquiry could be made by going through the documents produced by the parties on record and the said order under sub-section (8) of section 17 would be tentative in nature could be challenged at the time of final disposal of main application. The impugned orders can not be termed to be unlawful, consequently the petitions are dismissed in limine as observed above with no order as costs. (MYFK) Petition dismissed.

PLJ 1996 Karachi 540 PLJ 1996 Karachi 540 Present: HAMID ALI MlRZA, J. QURBAN ALI KHAN-Appellant versus Mst. SUFIA KHAN-Respondent II Appeal No. 04 of 1992 dismissed on 8.2.1996. Limitation Act, 1908 (IX of 1908)-- -—Ss. 5 and 14-Suit for recovery-Dismissal of-Appeal to--There was no ambiguity regarding pecuniary jurisdiction of Court-Appellant and his counsel were negligent in their conduct so much so that they could have taken back appeals from District Court for their presentation to High Court, but they did not act with due care and caution so as to constitute sufficient cause within meaning of section 5 of Limitation Act for condonation of delay-Held: Appeals have no merits, hence dismissed [P. 546] A PLD 1977 SC 102 ref. Mr. Abdul Mqjeed Khan, Advocate, for Appellant. ' Mr. Muhammad Anwar Tariq, Advocate, for Respondent. Date of hearing: 28.9.1995. judgment By this common judgment I propose to dispose of both these appeals as common question of law in respect of limitation is involved. The brief facts of the case are that the Respondent Sufia Khan was divorced by appellant Qurban All Khan on 16.7.1986. The Respondent filed a Suit No. 1614/1986 for recovery of dowery articles or in the alternative recovery of the cost thereof amounting to Rs. 90,000/- while the appellant Qurban All filed Suit No. 144/1987 for recovery of Rs. 92,737/- against the Respondent. Both suits were consolidated when the suit of the Appellant Qurban Ali Khan was dismissed while the suit of the Respondent Sufia Khan was decreed. Qurban Ali appellant preferred Appeals No. 18 and 19 of 1989 against the said judgment of Ilnd Senior Civil Judge Karachi when Appeal No. 18/1989 was dismissed while Appeal No. 19/1989 was partly modified by the learned Second Additional District Judge Karachi Central against which judgment lind Appeals No. 2 and 3 of 1990 were preferred before this Court and the said appeals were disposed of by my learned brother Syed Abdur Rehman Shah, J. (as he then was) on 4.9.1991. The operative part runs: "Both these circumstances whereas I allow both the Ilnd Appeals No. 2 and 3 of 1990 and set aside both the impugned judgments of Addl. District Judge, I direct that both 1st Appeals be returned by District Judge for presentation to proper Court. It will be open to Respondent to take the plea of limitation when these appeals are presented before this Court." The R&P of the Appeals No. 18 and 19 of 1989 and lower Court record were received by the District Court Karachi Central on 26.9.1991. The Appellant's learned counsel took the appeals on 2.11.1991 from the office of District Judge Karachi Central as in the meanwhile pecuniary jurisdiction of the District was enhanced from Rs. 50,000/- to Rs. one lac who in his turn transferred the same to 1st Addl. District Judge Karachi Central on the same day. The 1st Addl. District Judge Karachi Central after hearing learned counsel for parties dismissed the both appeals on the point of limitation holding the same to be time barred therefore the present Ilnd Appeals No. 4 and 5 of 1992 have been preferred before this Court. Mr. Abdul Majeed Khan, learned counsel for the Appellant, has argued that in view of the circumstances stated in the affidavit of the appellant and his counsel Mr. Khalid Hymayoon "sufficient cause for condoning the delay in filing the appeals has been shown and the alleged mistake of the counsel was bonafide and he had acted deligently in pursuing the proceedings before the Court. He has placed reliance upon AIR 1937 PC 276, P.L.D. 1982 Kar 749, P.L.D. 1963 AJ&K 38, 1982 SCMR 1105, P.L.D. 1974 SC 22, 1983 CLC 23, P.L.D. 1975 AZJ&K 149, P.L.D. 1960 Lah. 801, 1992 SCMR 424 (in fact the judgment is of Azad Jammu and Kashmir), 1995 SCMR 584 and AIR 1926 Mad. 178 in support of his contentions. Mr. Muhammad Anwar Tariq, learned counsel for the Respondent has argued that the Appellant did not file application for condonation of delay alongwith appeals but filed the same on 6.11.1991 and that the Respondent has denied in her counter-affidavit the statement of the appellant and his counsel made in the affidavits and thereby no sufficient cause within the meaning of Section 5 of the Limitation Act and no bonafides and due diligence in pursuing the proceedings have been shown within the meaning of Section 14 of the Limitation Act by the appellant in presenting the appeals therefore the impugned judgments passed by the learned 1st Addl. Sessions Judge Karachi Central are legal and no interference in these Ilnd Appeals was called for. He has placed reliance upon, 1976 SCMR 283, P.L.D. 1977 SC 102, 1984 SCMR 106, 1985 SCMR 1003, 1988 SCMR (??) 03, 1989 SCMR 1498, P.L.D. 1991 SC 104 and P.L.J. 1994 Quetta 32 in support of his contentions. There is no dispute about the facts stated above. One would find a complete answer to the contentions of the learned counsel for the Appellant in a case of Abdul Ghani versus Ghulam Sarwar (PLD 1977 SC 102) whereas their lordships of the Supreme Court at page 106 have observed: "In order to overcome these self-induced difficulties the petitioner has tried to throw the blame on the District Court and on the respondent's advocate. Thus, for example, he has pleaded in his petition that it was the act of the District Court "which contributed towards expiry of limitation for filing appeal in the High Court." We were astonished by this plea and even more by the fact that it was pressed because it is not Mr. Bilal's case that the Petitioner was an infant or a lunatic whose interests the Court might have been under some duty to protect. But, according to Mr. Bilal, the Petitioner had been misguided by the District Court because after admission the appeal had been transferred from the Court of the District Judge, Multan to that of an Additional District Judge, Multan, therefore, the principle actus curiae nemonim gravalsit was attracted. The argument is fallacious because the transfer from the Court of the District Judge to that of an Additional District Judge was by an administrative order and because this transfer was after the petitioner had deliberately filed his appeal in the wrong Court. And, in any case, the attempt to invoke the principle actus curiae nemonim gravalist assumes that the Court was under an obligation to advise the appellant how to prosecute his remedies against the respondent, we regret to say that this assumption is against reason. Mr. Bilal then pointed out that the District Judge had granted an interim injunction to the Petitioner. But, in the first place, this was after the presentation of the appeal. Secondly, as the interim order does not refer to the question of the valuation of the appeal, in the circumstances, we are satisfied that the petitioner had not drawn the attention of the District Judge to the fact that he had valued his claim in the trial Court at a sum which far exceeded Rs. 25,000/-. No doubt, on a perusal of the memorandum of appeal, if the facts had been correctly stated, the District Judge would have realised that the appeal was beyond the pecuniary jurisdiction of his Court This would also have been apparent from a casual perusal of the judgment under appeal, therefore, it is obvious that the learned District Judge granted an injunction in a most reckless manner, and the grant of injunctions in this manner cannot but lead to the increase of frivolous litigation. Be that as it may, it was the respondent who was aggrieved by the injunction obtained by the petitioner, and it does not lie in the mouth of the petitioner, complain of the fact that he had successfully obtained an illegal order from the Court. Mr. Bilal's next submission was that the respondent had misguided the petitioner, because the respondent had received notice of the petitioner's appeal before the expiry of the period of limitation for filing the appeal in the High Court and if the respondent had objected immediately to the maintainability of the appeal, the petitioner would have been able to apply to the District Court for the return of his appeal and for its representation to the High Court within the statutory period of Limitation. But as the respondent had challenged the District Court's jurisdiction only after the expiry of the period of limitation, according to Mr. Bilal, the respondent had misguided the petitioner. This extraordinary submission is based on the assumption that defendants are under an obligation to give advice about the manner in which claims against them are to be prosecuted. Apart from the fact that this assumption is against reason, submission is self-defeating because there cannot be different standards for plaintiffs and defendants, and if the petitioner was not at fault for filing his own appeal in the wrong Court, by the same standard, the respondent cannot be blamed for not objecting immediately to what the petitioner did. In any event, the conduct of other parties cannot help the petitioner 10 make out sufficient cause under Section 5 of the Limitation Act. It is true that this section does not define sufficient cause but the meaning of this expression is too well known to need recapitulation, and we would only refer here to the observations of Kaikaus, J. on this question in Ata Ullah v. Custodian Evacuee Property (PLD 1961 SC 236). "Under section 5 there has to be a finding of sufficient cause. In pre-partition India sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case wherein this definition of sufficient cause had been rejected." We re­ affirm these observations and we may explain here that the burden is on the appellant to prove that his delay in filing his appeal was on account of circumstances beyond his control, because, as observed by Sir George Rankin in Kunwar Rqjendra Bahadur Singh v. Rai Rujeshwar Bali and others (AIR 1937 PC 276) in apply section 5 (of the imitation Act) the analogy of section 14 (which applies nly to suits) is an argument of considerable weight." Section 14 permits the exclusion of time only for proceedings "prosecuted in good faith", therefore in order to make out sufficient cause under Section 5 an appellant must prove that he had acted in good faith in presenting his appeal in the wrong Court. Good faith has been defined in clause (7) of section 2 of the Limitation Act as "good faith": nothing shall be deemed to be done in good faith which is not done with due care and attention." Now if an appellant proves that he filed his appeal in the wrong Court despite due care and attention it means that the presentation of the appeal in the wrong Court was on account of circumstances beyond his control. No doubt, what such circumstances are must depend on the facts and circumstances of each case, and in Kunwar Rajendra Bahadur Singh's case, Sir George Rankin set aside the finding of the Chief Court that the appellant's Advocate had been very negligent in filing the appeal in the wrong Court because the facts relevant to the question of the Court in which the appeal was to be filed were veiy complicated. Similarly, an appellant can bring his case under Section if he can show that there is some ambiguity in the law governing the forum in which the appeal is to be filed. Or, to take another example, an appellant can rely on section 5, if he can show that he was misguided by the practice of the Court or by an erroneous judgment of the Court. But, in the instant case, the provisions of section 18 of the West Pakistan Civil Courts Ordinance are plain beyond any doubt and as there is also no complication whatsoever about the facts relevant to the question of the proper forum for filing the appeal, it is clear that the presentation of the appeal in the District Court was an act of gross negligence." The learned counsel for the appellant has placed reliance upon Raja Muhammad Ayoob and others vs. Muhammad Aijaz and Others (1982 SCMR 1105). The facts of the cited case are quite different and distinguishable to the facts of the present case as in the said cited case there was no doubt that there was considerable amount of uncertainty during those days with respect to the forum where the Revisions could be filed as powers of Revision were taken away from the Settlement Commissioners through two Notifications therefore the party who wanted to file Revision petition after the abolition of the powers of the Settlement Commissioner should have in view of the Notification aforementioned, and has to ascertain as to which was the forum competent to have jurisdiction. In the cited case there was definite uncertainty about the forum where the Revisions could be filed and in the said circumstance the ignorance of the learned counsel for the respondent about the correct forum in which Revision petition ought to be filed was considered to be not negligent act and was held to be bonafide mistake falling within the purview of Section 14 of the Limitation Act. In the instant case Rule 18 of the West Pakistan Civil Court Ordinance 1962 clearly mentioned without any doubt that the appeals in case where the amount exceeded Rs. 50,000/- would lie before the High Court therefore the said authority cited has no application to the facts of the present case. Next authority which has been relied upon in Masood Akhtar and two others vs. United Bank Limited (1992 SCMR 424). The cited case on the contrary supports the contentions of the learned counsel for the respondent as in the said case their lordships of Supreme Court have held that although Section 14 of the Limitation Act would not apply to appeals but its content could be made applicable by analogy so that if a litigant showed that he had been in good faith prosecuting another civil proceeding within the meaning of Section 14 of the Limitation Act such circumstances might be treated as "sufficient cause for condonation of delay within the meaning of Section 5 of the Limitation Act". It was further observed in the judgment at page 428 that: "This takes us to the question whether the appellant can successfully urge that the appeals filed in the Court of District Judge had been filed and prosecuted with good faith. If the appeEant's contention is shown to be wellfounded, if would furnish "a sufficient cause for condonation of delay". .Notwithstanding the fact that both the learned counsel who appeared in this appeal were not aware of it, this proposition stand concluded by judgment of this Court that circumstances as appearing in the present case cannot be termed as being the result of "good faith"; rather in fact they constitute "gross negligence" and cannot be treated as a sufficient cause for condonation of delay. Where the provision of law is clear question of condonation does not arise. It may arise when a litigant is misguided by some practice of a Court or by an erroneous judgment." The learned counsel for the appellant has also placed reliance upon Sheereen and 4 others vs. Fazal Muhammad and 4 others (1995 SCMR 584). The facts of the cited case are quite different and distinguishable to the facts of the instant case as in the cited case the value of the suit for the purpose of Court fee and jurisdiction was neither incorporated in the decree-sheet nor explicitly shown in the judgment of the trial Court therefore the counsel filed appeal in the District Court which was considered to be mistaken advice of the counsel. Their lordships of the Supreme Court in para 6 at page 591 have observed: "We may observe that filing of appeal in a wrong Court on account of mistaken advice tendered by the counsel convassed on behalf of the appellants for condonation of delay by itself would not attract section 5 but when the litigant and the counsel have acted with due care and caution and their conduct does not smack of negligence, the institution of the appeal in the wrong forum may constitute a "sufficient case" within the meaning of section 5 for condonation of the delay." In the instant case there was no ambiguity regarding the pecuniary jurisdiction of the Court in view of Rule 18 of the West Pakistan Civil Court Ordinance 1962 and further that facts stated showed that the appellant and his counsel were negligent in their conduct so much so that they could have taken back the appeals from the District Court for their presentation to the High Court or when the appeals were returned to the District Court Karachi Central the same could have been taken soon after the same were received for their presentation to proper Court but they did not act with due care and caution so as to constitute sufficient cause within the meaning of Section 5 of the Limitation Act for condonation of delay. In view of the aforesaid decisions of the Supreme Court of Pakistan I do not consider necessary to cite the decisions of the other Courts as the point involved in the instant case stands concluded by the aforesaid decision of the Supreme Court, rest of the case law cited by the learned counsel for the appellant would not be of any avail. In the circumstances the appeals have no merits which are hereby dismissed as being time barred. (MYFK) Appeals dismissed.

PLJ 1996 Karachi 546 PLJ 1996 Karachi 546 Present: NAZIM HUSSAIN SIDDIQUI, J. ABDUL GHAFOOR KHAN etc.--Appellants versus Mst. MAIMOONA BEGUM-Respondent F.R.A. No. 73 of 1993, dismissed on 28.1.1996. (i) Sindh Rented Premises Ordinance, 1979- —S. 21--Ejectment of Tenant-Appeal against-Appellant did not appear before Controller for cross examination as such contents of his affidavitin-evidence could not be taken into consideration, whereas from cross examination of respondent and her son it was not established that they were in occupation of a portion of house-It is evident that appellant had knowledge about notices sent to him by respondent-Besides, no ground has been taken regarding notices-Appeal dismissed. [Pp. 549 & 550] A & C PLD 1994 SC 716 ref. <ii) Sindh Rented Premises Ordinance, 1979- —-S. 14-Ejectment application by a widow-Whether a widow could not claim benefit of S. 14 if she acquired property after becoming widow- Question of-Section 14 of Ordinance 1979 simply used word "widow", therefore, case of a widow could be covered by it irrespective of fact that whether she became widow before or after acquiring property. [P. 550] B Mr. Ismail Padhiyar, Advocate, for Appellant Mr. Abid S. Zuberi, Advocate, for Respondent. Date of hearing: 16.4.1995. judgment This appeal under Section 21 of the Sindh Rented Premises Ordinance 1979, hereinafter called the Ordinance, is directed against the order dated 5.1.1993 passed by learned Illrd Rent Controller, Central Karachi, whereby he directed the appellant to hand over vacant possession of the premises in question to the respondent within 60 days from the date of said order. The facts relevant for decision of the appeal are as follows: 2. Respondent Maimoona Begum on 4.12.1989 had filed the Rent Case under Section 14 (1) of the Ordinance against appellant Abdul Ghaffar Khan for his eviction from the two rooms on the ground floor of the House No. R-355/6 Federal "B" Area, Karachi, hereinafter referred to as the premises, on the plea of personal use as a widow for herself and her son namely Khalid Rahil. She got said property by way of gift and record of right was mutated in her name. On 28th January, 1989. The appellant is her tenant in the premises at monthly rent of Rs. 100/-. According to her, she is residing in a rented flat which is on the third floor, and being an old lady it is extremely inconvenient for her to climb the stair-case. It is alleged that she had sent two legal notices through an advocate to the appellant on 28.9.1989 and 20.10.1989 asking him to vacate the premises, but the latter managed not to receive them and got them returned to her. 3. The case of the appellant is that the eviction application was not maintainable on two grounds. Firstly, the respondent had acquired the property in question after becoming widow, as such, she could not claim the benefit of Section 14 of the Ordinance. Secondly, she was already in possession of a portion of the building in question and it being so the application was hit by Sub-section (2) of Section 14 of the Ordinance. On merit the case of the appellant is that the respondent does not require the premises for her personal use. 4. At trial the respondent filed her affidavit-in-evidence and that of her son Khalid Rahi. Both were cross-examined. The appellant filed his affidavit-in-evidence, but did not turn up for cross-examination. 5. It is pertinent to pointf out here that before this Court the appellant had moved an application under Order 41 Rule 27 C.P.C., seeking permission to lead additional evidence to prove that the respondent was in occupation of two rooms on the first floor of the Building in question, but said application was dismissed by this Court, as per detailed order dated 6.12.1994. 6. The respondent, in her affidavit-in-evidence, clearly stated that she was not in possession of any portion of the house in question nor she owned or possessed any property in any locality in her own name and that she was residing alongwith her son in a flat bearing No. 27 Hassan Lodge Block 7, F.B. Area, Karachi, where she had shifted and the marriage of her son Khalid Hammed was solemnised there. According to her, the premises was gifted to her about 20 years ago by her sister namely Mst. Fatima Muhammad, but the record was mutated in her favour on the date mentioned earlier. Respondent's son Khalid Rahil in his affidavit-in-evidence stated that before his marriage he was living in a rented House and after September, 1989 he and his mother shifted in the aforesaid flat. 7. From the pleadings of the parties, learned Rent Controller had settled the following Issues: 1. Whether the applicant is entitled to seek benefit of Section 14(1) of the Sindh Rented Premises Ordinance, 1979? 2. Whether the premises in question is required by the applicant for her personal use as well as for the use of her son namely Khalid Raheel? 3. What should the order be? 8. On assessment of evidence learned Controller decided Issues No. 1 and 2 in the affirmative. Consequently he allowed eviction application of the respondent by the order, which has been impugned in this appeal. 9. Section 14 of the Ordinance reads as under:- "14. DELIVERY OF VACANT POSSESSION: (1) Notwithstanding anything contained in this Ordinance or any other law for the time being in force, the landlord of a building who is a widow, or a minor whose both parents are dead or a salaried employee due to retire within the next six months or has retired or a person who is due to attain the age of sixty years within the next six months or has attained the age of sixty years, may, by notice in writing, inform the tenant that he or she needs the building for personal use and require him to deliver vacant possession of the building within such time as may be specified in the notice, not being earlier than two months from the receipt thereof: Provided that nothing in this Subsection shall apply where the landlord has rented out the building after he as retired or attained the age of sixty years or, as the case may be, has become widow or orphan. (2) The landlord shall not be entitled to avail the benefit of Sub-section (1) if he is in occupation of a building owned by him in any locality. (3) Where the tenant has failed to deliver the possession of the building under sub-section (1), the Controller shall, on application by the landlord in this behalf, order eviction of the tenant from the building in a summary manner, by using such force as may be necessary." 10.» A perusal of the aforesaid section shows that its object is to provide summary and speedy remedy to the specified landlords viz. the landlady of a building who is widow, or a minor whose both parents are dead, or a salaried employee due to retire within next six months or has retired or a person who is due to attain the age of 60 years within next six months, or has attained the age of 60 years. These specified landlords can invoke the provisions of said Section 14 but these are subject to conditions laid down in this proviso of sub-section (1) and sub-section (2). Therefore, a widow, orphan, salaried employee, or a person having attained the age of 60 years, if has rented out the building after having retired or attaining the age of 60 years or becoming widow or orphan, would not be entitled to the benefit of this section. Likewise, a landlord would not be entitled to avail the benefit of this Section if he is in occupation of a building owned by him, in any locality. It is significant to note that in this section no period of limitation is provided within which such application is to be filed. 11. Mr. Ismail Padhiyar learned counsel for the appellant contended that learned Rent Controller has failed to appreciate the fact that the respondent was already in possession of a portion of the house in question and it being so she was not entitled to invoke the jurisdiction under said section. 12. As pointed out earlier, the appellant did not appear before learned Controller for cross examination as such, the contents of his affidavit-in-evidence could not be taken into consideration. From the crossxamination of the respondent and her son it was not established that they were in occupation of a portion of said house and probably for that reason the appellant had filed application in this Court for producing additional evidence, which for valid reasons was rejected. 13. Mr. Abid S. Zubairi learned counsel for the respondent cited the case of yed Hasan Alt vs. Muhammad Hanfi PLD 1994 S,C. 716 wherein it was held that mere fact that the landlord seeking ejectment of tenant from a shop was occupying the residential premises on the upper floor of the same building would not disqualify him from invoking Section 14 of the Ordinance. Further, it was observed that where tenant failed to prove that landlord was in possession of a portion of the building in question, which had nexus with the suit premises of which the ejectment was sought, landlord would be entitled to get the tenant ejected under Section 14. In the instant case, the appellant was not able to furnish the relevant particulars about the alleged portion of said house, which according to him was in possession of the respondent. Under the circumstances, the appellant cannot challenge the maintainability of the application on said ground. 14. Learned counsel for the appellant next contended that, the respondent having acquired the property after becoming widow could not claim the benefit of Section 14 of the Ordinance. According to learned counsel, only a lady who first acquired property and thereafter become widow could claim the benefit of said Section. The section simply used the word "WIDOW". Therefore, the case of a widow would be covered by at irrespective of the fact that whether she became widow before or after acquiring the property. 15. A statute is to be understood in accordance with the plaint meaning of the language used therein. Narrower construction which would fail to achieve avoid purpose of legislation shall, as a rule, be avoided. Nothing shall be added or be taken out from a statute to assign a meaning, which, Ex-fade is not the intention of the legislature. The conclusion, therefore, would be that a widow can claim the benefit of Section 14, if at the time of filing the application she was widow, and was the owner of the property in question. 16. Mr. Ismail Padhiar also contended that the notice, as required under Section 14 of the Ordinance, was not served upon the appellant and it being so, the eviction application was not maintainable. The respondent, in her affidavit-in-evidence, clearly stated that the appellant managed not to receive the notices dated 28.9.1989 and 20.10.1989 and got them returned to the respondent. In cross-examination of the respondent a suggestion was given to her by the learned counsel for the appellant that she had sent those notices to one "Ghaffar". The respondent explained that it may be a typing mistake, but the address was the same. Thus, it is evident that the appellant had the knowledge about those notices. Besides, in the memo of appeal no ground has been taken regarding said notices. 17. In consequence, I do not find any merit in this appeal, and the same is dismissed with no order as to cost. The appellant, however, is allowed four months time to hand over vacant possession of the premises in question to the respondent. If the possession of the premises is not handed over to the respondent within the aforesaid time, the writ of possession would be issued without notice to the appellant. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 551 PLJ 1996 Karachi 551 Present: HAMID ALI MlRZA, J. M/s PAKISTAN BURMAH SHELL LTD.--Appellants versus KHALIL AHMED and another-Respondents F.R.A. No. 371 of 1991 disposed of on 23.10.1995. C.M.A. No. 211/96 and 212/96 dismissed on 4.4.1996. Civil Porcedure Code, 1908 (Act V of 1908)-- —-S. 12(2)-Sindh Rented Premises Ordinance, 1979--S. 14-Misrepresentation, fraud and collusion between parties in appeal against ejectment order-Question of--There has been no agreement between applicant and respondent/Landlords-He cannot claim to be tenant or sub tenant or sublettee and has no right to be added or impleaded in ejectment proceedings which initiated between landlords and tenant-Even if he claims to be in possession through out-going dealer or through appellants, then also he would be bound by ejectment order passed against appellants-Held: Applicant could not be said to be unaware from 1989 till 1995 about pendency of proceedings, but even if he was unaware, then also he will have no right to protect possession under law-­ Nether fraud, nor misrepresentation or collusion could be said to have been committed in proceedings between parties—Application dismissed. [Pp. 552 & 553] A to C PLD 1991 Quetta 10 and 1981 CLC 212, ref. Mirza Waqar Hussain, Advocate, for Applicant. Mr. Khalil-ur-Rehman, Advocate, for Respondent. Date of hearing: 4.4.1996. ORDER An application under section 12(2) CPC filed by one Muhammad Aslam Karimi is put-up for consideration wherein the said applicant has prayed for setting aside the judgment dated 23.10.1995 passed by this Court in FRA No. 371/91 (M/s Pakistan Burmah Shell Limited and Khalil Ahmed and another) on the ground of collusion between the parties in the appeal and on the ground of misrepresentation and fraud. I Kave heard Mr. Mirza Waqar Hussain learned counsel for the applicant Muhammad Aslam Karimi and Mr. Khalilur Rehman learned counsel for the respondents and have perused the record and proceedings of the case. The main contention of the learned counsel Mr. Mirza Waqar Hussain is that the applicant Muhammad Aslam Karimi is the dealer of the appellant/tenant, and was in authorised possession therefore he should have been impleaded as party in the ejectment proceedings filed against the appellant/tenant, and by not impleading him he has been made to suffer irreparable loss because of the collusion between the parties and by practising fraud and misrepresentation upon the applicant, Mr. Mirza Waqar Hussain learned counsel for the applicant, has placed reliance upon Mamoor Khan vs. Nasiruddin @ Nasir Muhammad and Five others (1994 CLC 130). Mr. Khalilur Rahman, learned counsel for the respondents, has argued that the said applicant claims to be the dealer of the appellant M/s. Pakistan Burmah Shell Limited though no such agreement of dealership has been filed and said dealership of the petrol pump is stated to have been acquired by the applicant from the out-going dealer of the said petrol pump in the year 1988 therefore he could not be said to be the tenant as to be impleaded as a party in the ejectment proceedings filed under section 14 of Sindh Rented Premises Ordinance 1979. He further contends that there has been neither fraud nor misrepresentation nor any collusion between the landlords/respondents and tenant/appellant M/s. Pakistan Burmah Shell Limited as would appear from the judgments passed by this Court and by the learned Rent Controller where the tenant/appellant had vehemently contested the ejectment proceedings. He has placed reliance Qutubuddin Ahmad Khan vs. Mst. Zohra Musarat Amin and another (1981 CLC 212), Agha Muhammad vs. Haji Maula Dad (PLD 1971 Quetta 10) and Khawaja Muhammad Yaqub Khan and another vs. Shaikh Abdur Rahim and others (1968 SCMR 734) in support of his contentions. . The main point for consideration in this application filed under section 12(2) CPC is whether the applicant was necessary party to be joined in the ejectment application filed under section 14 of the Rent Ordinance. Perusal of section 14 of the Rent Ordinance would show that landlord could seek eviction against the tenant on the grounds mentioned in the said provision of Rent Ordinance. The applicant claims to be dealer of the appellants M/s. Pakistan Burmah Shell Limited and has been selling and disposing of all the products of the appellants/tenants on commission and he acquired the said dealership from the out-going dealer of the appellants M/s. Pakistan Burmah Shell Limited/tenants. There has been no agreement between the applicant and the respondents/landlords. The applicant cannot claim to be tenant or sub-tenant or sublettee even if he is a dealer of the appellants he has no right to be added or impleaded in the ejectment proceedings which initiated between the appellants and respondents i.e. landlord and tenant. If the applicant has invested huge amount in the • business then the out-going dealer from whom he acquired the dealership could be blamed for not informing him about the pendency of the proceedings as applicant claimed to be ignorant about the pendency of the ejectment proceedings between the parties for which the respondents/ landlords could not be blamed for not informing him about the pendency of ejectment proceedings. The applicant cannot be said to be in occupation or in possession on his own account in good faith and even if he claims to be in possession through the out-going dealer or through the appellants then also he would be beyond by the ejectment order passed against the appellants and he would have to leave the premises in dispute with the appellants/tenants. The applicant being in possession would not become tenant of the respondent so as to have the right to be impleaded as party in the ejectment proceedings. Reference is made to Khawaja Muhammad Yaqub Khan us. Shaikh Abdur Rahim (1968 SCMR 734). There has been no sub­ tenancy between the respondents and the applicant and has not claimed the possession of property in good faith on his own account or on account of some person other than judgment-debtor therefore the ejectment order passed against the appellants/tenants would be binding upon him and he would not be necessary party to be impleaded in the ejectment proceedings. Reference is made to Agha Muhammad vs. Haji Maula Dad (PLD 1971 Quetta 10) and Qutubuddin Ahmed Khan vs. Mst. Zohra Musarat Amin (1981 CLC 212). In view of the aforesaid reasonings and case law the applicant cannot be said to be a necessary party to be impleaded in the ejectment proceedings filed under section 14 of the Sindh Rented Premises Ordinance 1979 and, therefore, question of fraud or misrepresentation having been played upon him would not arise. It will not be out of place to state here that initially the respondents had filed Ejectment Application No. 1048/80 under section 15 of the Rent Ordinance on the ground of their personal need and requirements which was granted by the learned Rent Controller on 15.9.1983 but the said ejectment order was set aside by this Court in FRA No. 804/83 on the ground that the respondents/landlords were not entitled to have the possession of the said plot on the ground of personal requirement as the period of lease-deed had not expired then. Thereafter the respondents/ landlords filed Ejectment Application No. 496 of 1989 under section 14 of Sindh Rented Premises Ordinance 1979 which was also allowed by the learned Rent Controller on 30.5.1991 thereafter FRA No. 371 of 1991 was filed by the appellant M/s. Pakistan Burmah Shell Limited which was disposed of by this Court on 23.10.1995. The applicant could not be said to be unaware from 1989 till October 1995 about the pendency of proceedings but even if he was unaware then also he will have no right to protect the possession of the premises in dispute under the law. Neither fraud nor misrepresentation or collusion could be said to have been committed in the proceedings between the parties. Accordingly the contention raised by the learned counsel for the applicant has no merits, consequently this application filed under section 12(2) CPC is dismissed. (MYFK) Application dismissed.

PLJ 1996 Karachi 554 PLJ 1996 Karachi 554 [Original Jurisdiction] Present : rasheed ahmad razvi, J. USMAN PUNJWANI and another-Plaintiffs versus GOVT. OF SINDH THROUGH SECRETARY and one other-Respondents Civil Suit No. 197 of 1994 deceased on 24.8.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)- —Order 39 Rules 1 & 2 read with section 151-Allotment of plot cancelled— Declaration & Perpetual Injunction-Suit for--Temporary Injunction- Prayed for-Plaintiff is in physical possession of plot and allotment cancelled in violation of principles of natural justice-Held: Plaintiffs have made out prima facie case, and that balance of convenience is in favour to grant injunction-If an interim order of injunction is not granted, plaintiff will suffer irreperable loss and injury-Petition accepted. [P. 558] B (ii) Jurisdiction- —-Declaration and Permanent Injunction-Suit for-Contention that jurisdiction is barred under section 36 of the Colonization of Government Land (Sindh) Act, 1912-Held: Civil Courts have jurisdiction, if order passed by Revenue Authority is bad in law, without lawful authority and malafide. [P. 556] A AIR 1940 PC 105, PLD'1968 SC 381, PLD 1978 Lahore 679, PLD 1983 Lahore 294, 1980 CLC 662 and 1994 CLC 317 rel. Mr. Mushtaq Memon, Advocate, for the Plaintiffs. Mr. Abdul Ghafoor Mangi, Advocate-General Sindh for the Defendants. Date of hearing: 24.8.1995. order This is an application filed by the plaintiffs under Order 39 Rules 1 and 2 CPC read with section 151 CPC praying for temporary injunction against the defendants restraining them from interfering with the allotment and possession of the plaintiffs in respect of plot of land bearing No. 18, situated in K. 28, Translyari Quarters, Hawksbey Road, Karachi West. The plaintiffs have filed this suit for declaration and perpetual injunction against the defendants for a declaration that the order dated 24.3.1994 passed by the Government of Sindh, whereby the plot in question was cancelled, be declared unlawful and of no legal effect. 2. The plot in question bearing No. 18 (Industrial) out of K-28, Trans Lyari Quarters situated on left side of Main Hawksbay Road adjacent to KMC truck suuuL Karachi West measuring 4 acres was allotted to the plaintiffs predecessor-in-interest on 27.1.1992 by the defendant No. 1, hereinafter referred to as the plot in question. It is the case of the plaintiffs that the said allotment was made with the approval of the then Chief Minister and was for 99 years' lease. The plaintiff has filed annexures P/l to P '4 in support of this contention. This plot was purchased by the plaintiffs which was lawfully transferred in his name. Lease for 99 years was executed by the Mukhtiarkar, Karachi West on 12.3.1992 in favour of the predecessorin-interest of the plaintiffs. The amount of entire sale consideration was paid. The case of the plaintiff is that he was fully abiding the terms and conditions of the lease agreement (Annexure-P/8 to the plaint) and that without any reason and out of mala fides the defendant No. 1 on 24.3.1994 cancelled the plot in question and directed the concerned department to reverse the entries made in the records of right and to take over physical possession of the land in suit at once. On the other hand, the case of the defendants is that the plot in question was allotted to the predecessor-ininterest of the plaintiff out of political consideration, and at a very low price thus causing huge losses to the Government of Sindh. It is also argued by the learned Advocate General Sindh that in view of section 36 of the Colonization of Government's Land Act, 1914, this Court has no jurisdiction. 3. I have heard Mr. Mushtaq Memon, Advocate for the plaintiffs and Mr. Abdul Ghafoor Mangi, A.G. Sindh for the defendants. 4. Mr. Mushtaq Memon, Advocate for the plaintiffs has strenuously argued that the impugned letter/order dated 24.3.1994 has been passed in violation of the principle of natural justice inasmuch as no prior show cause notice was issued to the plaintiff before issuing the cancellation letter of the plot in question. It is further argued that the order of cancellation is based on mala fides. That the order of cancellation failed to disclose in its contents as to which condition, law or rule was violated while granting the plot in question to the predecessor-in-interest of the plaintiffs. Mr. Memon has urged that by execution of 99 yea s lease-hold rights in favour of the plaintiffs predecessors a vested right was created which cannot be recalled or withdrawn by the defendants without first affording an opportunity to show-cause and that without seeking resort from Civil Court. Mr. Abdul Ghaffoor Mangi, the learned Advocate General Sindh appearing for the defendants has supported the action as contemplated in the letter dated 24.3.1994 issued by the Land Utilization Department on behalf of Government of Sindh through which plot in question was cancelled. ccording to the learned Advocate General, the plot in question was allotted in violation of the statement of Conditions dated 12th May, 1975 as well as in violation of Article 28 of the Rules of Business, Learned A.G. Sindh has also raised objection as to the jurisdiction of this Court. He has relied upon section 36 of the Colonization of Government Land (Sindh) Act, 1912, which is reproduced as hereunder:- "36. Jurisdiction of Civil Court barred as regards matter arising under the Act.-A Civil Court shall not have jurisdiction in a matter of which the Collector is empowered by this Act to dispose and shall not take cognizance of the manner in which the Provincial Government, Board of Revenue, or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act." 5. On the question whether this Court has jurisdiction, the law is well settled. It has been held in several reported cases that despite provisions . of section 36 of the Colonization of Government Land (Sindh) Act, 1912, the civil Courts have jurisdiction to entertain a suit, if the order passed by the Revenue Authorities is bad in law, without lawful authority and mala fide. For reference, see the cases of Secretary of State v. Mask & Co. (AIR 1940 PC 105), Messrs. Chalna Fibre Company Ltd., Khulna and others v. Abdul Jabbar & others (PLD 1968 SC 381), Karim Dad v. ArifAli & another (PLD 1978 Lahore 679), Anjuman Talim-ul-Islam v. W.P. Punjab Province (PLD 1983 Lahore 294), Muhammad Saleh v. Meher Shah (1980 CLC 662) and SyedRaunaq Raza v. Province of Bind & others (1994 CLC 317). In the case of Mast & Co., it was held by their lordships of Privy Council that: ".. .. It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that wen if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act had not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure ... ." In the case of Messrs. Chalna Fibre Company (supra), the Hon'ble Supreme Court did not uphold the objection that the suit was not maintainable. It was further held that the ouster of the jurisdiction of Civil Courts is not to be readily inferred unless that jurisdiction has been either expressly or impliedly taken away by some law. Following is the relevant portion:- ".. . . It is a well-settled rule that the ouster of jurisdiction of a civil Court in respect of a civil suit is not to be readily inferred. Unless that jurisdiction has been either expressly or impliedly taken away by some other law it will continue to vest in the civil Court...." 7. The issue concerning civil Court's jurisdiction as contemplated in section 36 of the Act, 1912 also came up before a Division Bench of the Lahore High Court in the case of Anjuman-e-Talimul Islam where it was held: " ........ Thus if it is shown that the order passed cannot be accommodated within the ambit of power of a particular authority, the civil court would intervene. Similarly, the civil court can intervene in case of fraudulent and mala fide orders. In this view of the matter, jurisdiction of the civil Court could only be ousted if it was found that the order passed by the statutory functionary lay within the ambit of its power and was neither based on fraud or mala fides The same view was upheld by a learned single Judge of this Court Mr. Mukhtar Ahmad Junejo, J. (as his lordship then was) in the case of Syed Raunaq Raza (supra). In this reported case, interpretation of section 36 of the Act 1912 was also involved. It, was held that the Civil Court has jurisdiction to examine such cases, to be satisfied if the executive functionaries have exercised their powers in accordance with law and have followed the statutory obligations as well as the principles of natural justice. In the case of Muhammad Iqbal Piracha v. Government ofSindh and others (Suit No. 500/1994), I have followed the same view and overruled the objection of the learned A.A.G. Sindh that this Court has no jurisdiction in view of section 36. I have examined the facts of this suit as well as Suit No. 500/- 1994 which are very similar. Therefore, the point of law as upheld by me in the case of Muhammad Iqbal Piracha (Suit No. 500/94) is binding on me in this subsequent suit. In the case of Muhammad Miizaffar Khan vs. Muhammad Yusuf Khan (PLD 1959 SC 9), it was held by the Hon'ble Supreme Court that the previous decision on a specific point of law is to be accepted as binding by a single Judge in a subsequent proceedings. In view of this settled Law, I hereby overrule the objection raised by the Advocate General Sindh as to the jurisdiction of this Court. 8. It is not the case of any of the parties that the plaintiff is not in physical possession of the plot in question. The defendants have not filed any counter affidavit to this application. However, they have filed written statement wherein they have not mentioned the exact rule of regulation which was violated at the time of grant of plot in question. It is the case of the defendants that the sale price fixed at that time was very low and that at the time of grant the cost of land was more than two million rupees. It is further disclosed in the written statement that the grant of plot in question is "political favourtism which has caused heavy loss to the Government...." 9. There is no cavil to the proposition of law that any order passed in violation of principles of natural justice is not sustainable in law. The learned A.G. Sindh was not able to meet this well settled principle of law. For any reference, see Dacca University v. Zakir Hussain (PLD 1965 SC 90), Noor Muhammad v. K.D.A. & others (PLD 1975 Karachi 373), Ghulam Fatima v. Board of Revenue (PLD 1994 Lahore 296), Akber Waheen v. K.D.A. (1993 MLD 87) and P.M. A Karachi v. Government of Sindh & others (1979 CLC 382). It is an admitted position that the plot in question which was earlier allotted and leased in favour of Nizamuddin and subsequently transferred to the plaintiff No. 1 was cancelled without affording an opportunity to show cause. Plaintiffs have been condemned unheard. Several questions of law as well as of facts are involved in this suit. The plaintiffs have raised serious objections as to the authority of defendants to cancel/withdraw the plot in question, particularly, in violation of the principles of natural justice. These issues require full-fledge trial. 10. I have considered arguments of the learned counsel as well as the facts of the case and the law cited at bar. I am of the considered view that the plaintiffs have made out a prima facie case and that the balance of convenience is in the favour of grant of this injunction application. I am also of the view that in such circumstances, if an interim order of injunction is not granted, the plaintiff will suffer irreparable loss and injury. This application must succeed which is accordingly granted. The defendants are restrained till disposal of this suit from interfering in any manner, with the allotment and possession of the plaintiffs in respect of the plot bearing No. 18, situated in K-28, Trans Lyari Quarters, Hawksbay Road, Karachi West measuring 4 acres. C.M.A. No. 1645/94 stands disposed of. (MGB) Order accordingly.

PLJ 1996 Karachi 558 PLJ 1996 Karachi 558 [Original Civil Jurisdiction] Present: G.H. MALIK, J. UNITED BANK LIMITED-Plaintiff Versus ABDUL REHMAN HAJI HABIB-Defendants Suit No. 284 of 1974, decided on 19.9.1995. Civil Procedure Code, 1908 (Act V of 1908)-- —S. 35A-Recovery of loan-Suit for-Dismissal-Compensatory cost-­ Defendant led no evidence and, thus, abandoned his defence without even attempting to furnish any explanation for so doing-It is reasonable to infer that there was no evidence to substantiate defence which were set up and those defences were, to the knowledge of defendant, false and vexatious-Held: Plaintiffs claim for compensatory cost is fair and just. [P. 561] A Mr. S. Momnoon Hasan, Advocate, for Plaintiff. Mr Kabiruddin, Advocate, for Defendant. Date of hearing: 19.9.995. judgment The plaintiff has filed this suit for recovery of Rs. 93,776/- with interest. The case of the plaintiff is that it granted to the defendant a loan of Rs. 50,000/- in December, 1965; that, as security for repayment of the said loan, the defendant executed promissory notes from time to time dated the 13th December, 1965, 31st October, 1968, and 27th September, 1971; that the defendant failed to repay the said loan; and that, consequently, a sum of Rs. 93,776/- was due and payable by the defendant to the plaintiff as on the 31st March, 1974. The defendant filed his written statement and, upon the pleadings of the parties, the following issues were settled: 1. Whether the plaintiff granted to defendant a loan/Over­ draft of Rs. 50,000/-? 2. Whether the defendant utilised the said loan/Over-draft? 3. Whether the defendant is liable to the plaintiff bank for the amount claimed? 4. Whether the alleged Promissory Notes and the alleged acknowledgments were obtained in blank and were filled in subsequent to their execution? If so, its effect? 5. Whether the alleged Promissory Notes are without consideration and/or legally invalid documents? 6. Whether the suit is maintainable? 7. What should the decree be? The plaintiff has examined Ashraf Ali as its witness whereas the defendant has led no oral or documentary evidence. The written statement of the defendant, therefore, cannot be taken into account. That being so, it follows that the parties are no longer at issue and the issues which had been framed became redundant. However, at the insistence of Mr. Kabiruddin, the learned Counsel for the defendant, I have heard the arguments on those issues today. My findings on those issues are as follows: Issues Nos. 1 & 2: Mr. Kabiruddin does not question the grant of the loan of Rs. 50,000/- but submits that the amount therefore was not actually disbursed and that the loan in question was in fact a "via-media" adopted by the then Chairman of the plaintiff for obtaining the money for investment in his on company. In support of the arguments, he invites my attention to the statement of the plaintiffs witness in cross-examination that he had no knowledge that the then Chairman had floated any Company by the name of Chambon Company and that it was incorrect that the loan was given to finance any such Company, and further that the loan in question was given to the defendant as personal loan. That statement, far from supporting the argument, is a refutation thereof. Mr. Kabiruddin then refers to the statement of the witness that the defendant in this suit and the defendants in the other connected suits were all brothers and had current accounts in their names apart from the loan accounts referred to by the witness. According to the learned Counsel, that statement of the witness gives rise to an inference that there was "something special." He does not specify what that "something special" would be. In any case no such inference can be drawn because the witness had explained in his examination-in-chief that after the loan facility was granted a loan account was opened and the amount of loan was debited therein and the same was then credited to the current account of the defendant. This is a perfectly normal transaction and the statement with regard to it was not challenged in cross-examination. I, therefore, find that a loan of Rs. 50,000/- was granted to and utilised by the defendant. Issue No. 3: On this issue, Mr. Kabiruddin seeks to submit that in view of the events in East Pakistan the contract between the parties was frustrated and therefore the defendant is not liable to pay any amount to the plaintiff. He, however, concedes that there is nothing on the record that the loan had any connection with East Pakistan and that there is no evidence on record to support the argument. The argument is, therefore, clearly irrelevant and the instance of the learned Counsel on advancing it is quite unreasonable. I have, therefore, declined to hear any further argument on the question of alleged frustration and hold, on the basis of the evidence of the record, that the defendant is liable to pay the plaintiff the amount clainied in the suit. Issue No. 4: Mr. Kabiruddin submits that the date of one of the promissory notes (Ex. 7/5) is the 13th December, 1965, whereas, according to the statement of account (Ex. 7/27) the loan was disbursed only on the 14th December, 1965; and further that one of the blank spaces on that promissory note is still blank. According to him, that fact is sufficient to show that promissory note was blank when it was signed. The argument is clearly far fetched. I do not see how disbursement of the loan after the execution of the promissory note or the omission to fill in one of the blank spaces in it leads to the conclusion that it was blank when signed. It only remains to be noted that no argument has been advanced with regard to the remaining promissory notes and the letters of acknowledgement and that, in any case, the defendant, having led no evidence, has failed to discharge the burden of proof which was upon him. Issue No. 5: The only argument advanced by Mr. Kabiruddin is that the Promissory Note (Ex. 7/5 is invalid because one of the blank spaces therein has not been filled in and, therefore, it is incomplete. The space which has been left blank relates to intervals at which the interest was to be compounded. The argument is clearly devoid of any merit and deserves no further discussion. The validity of the subsequent promissory notes has not been questioned by the Counsel and no argument has ben advanced on the question of consideration. The issue is, therefore, answered against the defendant. Issue No. 6: This issue is not pressed. Issue No. 7: Mr. Kabiruddin states that the plaintiff has charged compound interest whereas the promissory note (Ex. 7/5) doe snot provide for charging of such compound interest. The argument overlooks the fact that the promissory note (Ex. 7/5) was only the first of the promissory notes executed by the defendant, and was replaced, subsequently, by the promissory note dated 31st October, 1965, which, in turn, was replaced by the promissory note dated the 27th September. 1971, so that the only promissory note in the field now is the latest one, dated 27th September, 1971. That promissory note is Ex. 7/12 and provides for payment of interest at 4% above bank rate with minimum of 9 per annum with quarterly rests. The plaintiff has therefore charged interest correctly. It may be further observed that the defendant has from time to time acknowledged its liability for the amount claimed and has at no time questioned the right of the plaintiff to charge interest which it has done. In the circumstances, the plaintiff is entitled to decree for the amount claimed in the suit. The suit is therefore decreed for Rs. 93,776/- with interest thereon at 14% per annum from the date of the suit till payment with quarterly rests. With regard to the costs of the suit, Mr. Mamnoon Hasan claims compensatory costs under Section 35-A, C.P.C. in addition to the usual costs because the defence set up by the defendant was false and vexatious to his knowledge and was subsequently abandoned by him. He is right. The defendant, in his written statement, set up various defences. It was alleged that the "defendant did not obtain the loan for himself; that the plaintiff desired Arag, Ltd. to purchase shares of substantial value of the newly floated Chambon (Pakistan) Ltd. and offered to finance the purchase of those shares and because it was not possible to grant an unsecured loan in excess of Rs. 50,000/-, the plaintiff granted loans of Rs. 50.000/- each to the defendants in this suit and the connected suits for the purchase of shares by Arag, Ltd. and that Arag, Ltd. had repaid the loan. It was further alleged that the promissory notes were blank when signed and were otherwise invalid and without consideration. Issues were framed on the basis of these pleadings; and it is evident that the burden of proving the allegations was on the defendant. Yet, he led no evidence and, thus, abandoned his defence without even attempting to furnish any explanation for so doing. It is, in the circumstances, reasonable to infer that there was no evidence to substantiate the defences which were set up and that those defences were, to the knowledge of the defendant, false and vexatious. The plaintiff was, of course, required to object to the defences at the earliest opportunity in order to be able to claim compensatory costs; and, in the circumstances of this case it has done so, for it could not have objected to the defence until after it was shown by the defendant's own action in abandoning it that it was false or vexatious. The conduct of the defendant, regrettably, has been aggravated by the insistence of his Counsel on advancing lengthy and unnecessary, and even irrelevant, arguments which were nojt supported by anything on record. It may be that in so doing he was acting on instructions, express or implied, of his client but if that be so than the latter must bar the consequences. In the circumstances, I am entirely satisfied that the plaintiffs claim for compensatory costs is fair and just. The defendant shall, therefore, pay the plaintiff, in addition to the usual costs, Rs. 10,000/- by way of compensatory costs. (M.G.B.) Order accordingly.

PLJ 1996 Karachi 562 (DB) PLJ 1996 Karachi 562 (DB) Present: ABDUL HAFEEZ MEMON ACJ AND NAZIM HUSSAIN SIDDIQUI, J. ORIENT MATCH COMPANY (PVT.) LTD.--Petitioner versus BANKING TRIBUNAL and another-Respondent W.P. No. 1476 of 1995, dismissed on 8.4.1996. (i) Jurisdiction-- —Lease of motor vehicles-Agreement executed at Karachi -Whether recovery suit could not be made at Lahore-Question of-Vehicles were delivered to petitioners at Lahore , and petitioners also resided at Lahore-­ Held: Cause of action, if any, arose at Lahore and Tribunal at Karachi had no territorial jurisdiction in matter-Petition dismissed in limine. [P. 566] C & D (ii) Words and Phrases- —Phrases "Finance Lease" and "Operating Lease" in IAS 17 are used in financial statements of accounting for leases-They have nothing to do with term "lease" as used in definition of finance-Term "Finance" as defined in Banking Tribunal Ordinance, 1984 included accommodation or facility under a system which provided on basis of participation in profit and loss, mark-up, mark-down in price, hire purchase, lease, rent, sharing, licensing etc. [P. 564] A & B Syed Iqbal Ahmad, Advocate, for Petitioners. Mr. Abid Hameed Puri, Advocate, for Respondents. Date of hearing : 27.2.1996. judgment Nazim Hussain Siddiqui, J.--The Petitioners have challenged the order dated 27.4.1995, passed by respondent No. 1 the Banking Tribunal, Karachi, whereby the petitioners application challenging jurisdiction of said tribunal was dismissed. The facts relevant for decision of this petition are as follows: The Respondents No. 2 M/s. Natover Motor Lease Ltd. had filed a Suit for Recovery of Rs. 6,82,729/- against the petitioners before said tribunal on the basis of Fleet Lease Agreement dated 27th August, 1991, executed by the parties whereby, the respondents No. 2 leased out five motor vehicles to the petitioners and the latter did not pay the lease amount as per the terms of said agreement. The petitioners were served by publication on 13.12.1994 and by Bailiff on 22.12.1994, but did not file written statement within statutory period of 10 days, as such, by order dated 13.2.1995 they were declared ex pane. Thereafter the petitioners filed an application under Order 7 Rule 10 read with Section 151 C.P.C. which was dismissed by the order, which has been impugned in this Petition. The jurisdiction of the Tribunal was challenged on two grounds. Firstly, it was urged that the transaction in question was not covered by the definition "finance", as appearing in the Banking Tribunal Ordinance, 1984, hereinafter referred to as the Ordinance, and secondly, the petitioners resided at Lahore and it being so the tribunal at Karachi had no territorial jurisdiction in the matter. Both these contention were repelled by the learned tribunal. Disposing of the first plea learned tribunal observed that definition of finance" included an accommodation or facility under the system, provided on the basis of "lease". It is noted, as is evident from the impugned order, that this ground though was pressed at the initial stage, but was dropped later on. As regards second ground, learned tribunal observed that the Agreement in question was executed at Karachi, therefore, the cause of action, if not wholly, in part atleast arose at Karachi and in that view of the matter the tribunal had jurisdiction in the matter. In order to appreciate the pleas raised in this matter, it would be advantageous to reproduce Section 2(a), 2(e) and Sub-section 3 of Section 5 of the Ordinance, which are as follows : Section 2-A: (a) "banking company" means-- (i) a bank as defined in Banks (Nationalization) Act, 1974 (XIX of 1974); (ii) A company incorporated outside Pakistan and transacting the business of banking in Pakistan ; and (iii) a company specified in the Schedule; Section 5(e): "finance includes an accommodation or facility under a system which is not based on interest but provided on the basis of participation in profit and loss, mark-up or mark-down in price, hire-purchase, lease, rent-sharing, licensing, charge of fee of any kind, purchase and sale of any property, including, commodities, patents, designs, trade marks and copyrights, bills of exchange, promissory notes or other instruments with or without buy-back arrangement by a seller participation term certificate, musharika certificate, modaraba certificate, term finance certificate or any other mode other than an accommodation or facility based on interest and also includes guarantees, indemnities and any other obligation, whether fund based or non-fund based, and any accommodation or facility the real beneficiary whereof is ? a person other than the person to whom or in whose name it was provided; Sub-section 3 of Section 5: "No Court other than.a Banking Tribunal shall have or exercise any jurisdiction with respect to any matter to which the jurisdiction of a Banking Tribunal extends under this Ordinance, including decisions as to the existence or otherwise of finance and the execution of a decree passed by a Banking Tribunal;" Section 13 of the Ordinance empowers the Federal Government to modify the Schedule as to add any entry thereto or omit any entry therefrom. Under this Section, the Federal Government on 26th October, 1994 issued a Notification whereby the respondents No. 2 were included in the Schedule. Mr. Syed Iqbal Ahmed learned counsel for the petitioners contended that though the term "finance" as defined in the Ordinance includes "Lease" but the lease are of two types i.e. "Finance Lease" and "Operating Lease". Learned counsel submitted that the lease of respondents No. 2 is not a Finance Lease". He also argued that the International Accounting Standards IAS 17, lays the following three tests for a "finance lease" as per appendix of IAS 17: (a) Ownership transfer by the end of Lease term; (b) Existence of bargain purchase option in lease contract; (c) Lease term to be for major part of useful life of assets. Learned counsel concluded that in view of the above three tests, the lease in question is not finance lease and it being so the tribunal has no jurisdiction in the matter. Above contention is void of any force. Suffice it to say that the phrases "Finance Lease" and "Operating Lease" in the 1AS 17 are used in the financial statements of accounting for leases. They have nothing to do with term "lease" as used in the definition of finance. The terms "finance" as defined in the Ordinance included on accommodation or facility under a system which provided on the basis of participation in profit and loss, mark-up, or mark-down in price, hirepurchase, lease, rent-sharing, licensing etc. It is not denied that the accommodation/facility, as envisaged in the agreement was availed by the petitioners and the agreement in essence relates to the financial transaction between the parties. Fleet Lease Agreement amongst others contains the following terms and conditions: 3. The lessor shall upon receiving the Adjustment Rentals hand over possession of the vehicle to the Lessee in an acceptable condition together with all import and registration formalities duly completed. The Lease shall sign a vehicle receipt to indicate satisfactory delivery of such vehicle by the Lessor and the time and date thereof. 4. The Lessee shall pay to the Lessor rental charges as per rates and at the frequency of payments stipulated in relevant Lease Form. Proper receipts shall be issued in respect of such payments. 5. That the entire rental charges for the first frequency period would become due and payable strictly in accordance with the terms of the individual Lease Form. The first frequency period shall commence on the day the Vehicle is ready for delivery to the Lease irrespective of whether the vehicle may or may not have been put to any use. 6. That the Lessor may at their sole discretion assign the whole or any part thereof of the rentals payable to them by the Lessees, in terms hereof, to any Bank or Financial Institution, and the Lessees will upon receiving written intimation, pay the rentals thereafter to the Bank/Financial Institution nominated therein directly. Any change in this Agreement shall only be made with prior consent of the said Bank/Financial Institution. 7. Throughout the agreed period of lease, the Vehicle shall remain registered in the name of the Lessor and the Road Tax and Other Taxes due shall be paid by the Lessor immediately on demand. Any non-payment or penalty suffered by the Lessee on this account, shall be payable by the Lessor on demand. Bare reading of above shows that the agreement in question is covered by the definition of "finance" as given in the Ordinance and the respondents No. 2 is a company within the meaning of Section 2(a)(iii) of the Ordinance. Learned counsel for the Petitioners next argued that the Agreement between the parties were executed on 10.4.1988, 27.8.1991, whereas Notification under Section 13 of the Ordinance, was issued on 26th October, 1994. According to learned counsel, the Notification could not be retrospective in its effect, as such, the agreements in question were not covered by said Notification. It is noted that the Suit was filed before the tribunal in the month of November, 1994 and at that time said Notification was in the field. Under Sub-section 3 of Section 5 of the Ordinance, the tribunal has exclusive jurisdiction to decide the question as to the existence or otherwise of the finance. Under these circumstances, the tribunal was the only forum available to the respondents No. 2 for deciding their claim. The question, in fact, has been decided by the tribunal that it has jurisdiction in the matter and that the case is covered by the definition of finance referred to above. Learned counsel for the petitioners also contended that the Vehicles were delivered to the petitioners at Lahore , and the petitioners also resided at Lahore , therefore, the cause of action, if any, arose at Lahore and the tribunal at Karachi had no territorial jurisdiction in the matter. This point has already been decided by the Tribunal and we agree with its finding mentioned earlier. Accordingly, we do not find any merits in this Petition and the same is dismissed in limine with no order as to costs. (B.T.) Petition dismissed.

PLJ 1996 Karachi 566 (DB) PLJ 1996 Karachi 566 (DB) Present : hamid ali mirza and agha rafique khan, JJ. Ms?. NAHEED PARVEEN and another-Petitioners versus DR. KHALID AZIZ and another-Respondente C.P.D. No. 643 of 1995, Dismissed in limine on 11.12.1995. Constitution of Pakistan , 1973- —-Art. 199--Hlegal order-Challenge to-Whether High Court could press into service its constitutional discretionary jurisdiction to set aside illegal order-Whether every illegal order can be set aside in Constitutional Jurisdiction-Questions of—It would appear that impugned order of respondent No. 2 (Assistant Commissioner) has in fact advanced cause of justice and rectified illegality by doing justice to respondent No. 1 (Dr. Khalid Aziz)~High Court in exercise of its constitutional jurisdiction would not allow to perpetuate injustice but would interfere to foster cause of justice-Held: Interference in constitutional jurisdiction with impugned order would amount to perpetuate injustice though respondent No. 2 was not competent to pass same-Petition dismissed in limine. [P. 570] A PLD 1990 SC 504, PLD 1973 SC 36. Mr. Rafiq Ahmad, Advocate, for Petitioners. Mr. Hakim All Siddiqui, Adv. for Respondent No. 1. Mr. Abdul Sattar Kazi, Addl. A.G. for Respondent. No. 2. Date of hearing: 11.12.1995. order This is a petition under Article 199 of the Constitution of- Islamic Republic of Pakistan wherein the petitioner has prayed:- That this Court will be pleased to declare the order dated 20.9.1995 passed by the respondent No. 2 as order passed without lawful authority and jurisdiction and without hearing the petitioners and that the same is illegal and void and has no legal sanctity and the same be set-aside and the entry if any effected in the City Survey record on the basis of the said order dated 20.9.1995 be deleted." This petition has arisen out of the facts that the shops No. F/279 and F/280 situated a Lajpat Road Hyderabad were in possession of one Dr. Jamaluddin and one Syed Aley Ahmed respectively when the said Jamaluddin was also in possession of a under ground cell under both the shops. The Assistant Settlement Commissioner allowed the transfer according to possession of the parties. Against said order Syed Aley Ahmed filed an appeal before the Deputy Settlement Commissioner protesting against the transfer of entire under ground cell to Jamaluddin which appeal was allowed and against the said order of the Deputy Settlement Commissioner Dr. Jamaluddin filed revision before the Additional Settlement Commissioner which was also disallowed. Thereafter said Jamaluddin preferred revision before the Settlement and Rehabilitation Commissioner Karachi, Hyderabad and Kairpur Division which was allowed as per order dated 14.12.1963 whereby said Dr. Jamaluddin was allowed entire under ground cell alongwith the shop No. F/279. Against the said decision of Settlement Commissioner Aley Ahmed preferred C.P. No. 33/1968 which was also summarily dismissed as per order dated 22.1.1969 passed by Mr. A.S. Farooqui, J. (as he then was) with the observation" the question was whether it was liable to be partitioned so as to give one portion each to the two occupants of the two shops. The "physical evidence and the situation of the building and the cell" to which reference was made, relateel to any evidence to show that the cell had been used in two separate parts or the building was so situated that each of the shop-keeper had access to the cell. This was not found to be so and, therefore, the Settlement Commissioner was clearly right in deciding the matter as he did. Summarily dismissed." Thereafter it is stated that Syed Aley Ahmed expired and his L.Rs gifted the shop No. F/280 and basement cell beneath the said shop to petitioner No. 1 by oral gift ar d thereafter necessary mutation in the City Survey record was made. Against which the respondent No. 1 who is said to have purchased the under ground cell beneath the shop No. F/280 from Mst. Fatema Hussain Bibi wife of late Dr. Jamaluddin filed appeal before the respondent No. 2 who allowed the appeal with the observation:- "On receiving this report notices were issued to both the parties and the original record was called from the City Survey Office. None appeared on behalf of the opponents. While the advocate for the applicant presented his case. On hearing the advocate and after perusing the original City Survey Record this court has come to the conclusion that forgery has been committed by the opponent in collusion with the City Survey staff. The entry dated 25.2.1976 has been tampered with by adding the words "alongwith cell". The entry dated 29.1.1994 has also been tampered with by adding the words" alongwith cell." The entry dated 1.2.1994 is false in its entirely because the signatures of the City Survey Officer are clearly forged. It is, therefore, ordered that the entry dated 14.2.1994 on plain card of properly F-280 whereby the said property has been transferred in the name of Mst. Naheed Parveen W/O Muhammad Zahoor stands cancelled. Further more the words "alongwith cell" in the entries dated 25.2.1976 and 29.1.1994 on the plain card of property F/280 shall be deleted." We have heard Mr. Rafiq Ahmed learned counsel for the petitioners and Mr. Hakim Ali Siddiqui learned counsel for respondent No. 1 and Mr. Abdul Sattar Kazi Addl. A.G. for Respondent No. 2 and perused the petition, impugned order and annexures filed therewith. Learned counsel for the petitioner has contended that respondent No. 2 has no authority and jurisdiction to pass the order as the appeal could be filed only before Director Land Records, Survey Settlement and Registration under section 6 of Sindh City Survey Act 1987 and further that the petitioner was not heard before passing of the impugned order. Learned counsel for the respondent No. 1 has argued that the entry made in favour of petitioner was void ab initio as the cell under the shop No. F/280 was not transferred to Syed Aley Ahmed therefore his legal representatives could not have given away the said cell by way of gift to Mst. Naheed. He has further contended that Dr. Jamaluddin got the entire cell under the shops No. F/279 and F/280 as per order of the Settlement Commissioner and said Aley Ahmed filed Writ Petition No. 33/1968 which too was dismissed summarily therefore the transfer in respect of cell underneath the both shops became final and conclusive. He has further contended that the petitioners have adequate and alternate remedy open by filing the suit and this constitutional petition remedy is not available to them for setting aside the impugned order of respondent No. 2 which has set right the wrong and injustice done to the respondent No. 1. He has placed reliance upon Syed Ali Shah v. Abdul SaghirKhan Sherwani (PLD 1990 SC 504) and Export Promotion Bureau and others v. Qaiswer Shafmllah (1994 SCMR 859) in support of his contentions. Reliance is also made to Nawab Syed Raunaq Alt etc. v. Chief Settlement Commissioner and another (PLD 1973 SC 236). Admittedly the under ground cell beneath the both shops No. F/279 and F/280 Lajpat Raod Hyderabad stood finally transferred to Dr. Jamaluddin in view of the order passed by the Settlement Commissioner and the same was upheld by this Court in Writ Petition No. 33/1968. The petitioner has not filed any documents showing that the cell beneath shop No. F/280 Lajpat road Hyderabad was transferred to Syed Alay Ahmed. Under ground cell beneath shop No. F/280 Lajpat road Hyderabad was not transferred to Syed Aley Ahmed therefore the same could not be inherited by his L.Rs hence his L.Rs could not make gift of the same in favour of the petitioner. In case any wrong entry was made in the City Survey by making false statement before the City Survey Officer the rectification if made by the respondent No. 2 would amount to rectifying the illegality or injustice done to the respondent No. 1 who has purchased the said cell through registered sale deed from the successor of Dr. Jamaluddin. Supreme Court of Pakistan in PLD 1990 SC 504 observed at page 510:- "Even if we were to assume that the order of the Settlement Commissioner suffers from some legal infirmity, the facts of the case were such which warranted that the High Court should have declined to press into service its constitutional discretionary jurisdiction as it is designed and intended to foster the cause of justice and not to perpetuate an injustice. This Court has repeatedly held that it is not every illegal order which is liable to be set aside in exercise of the Constitutional jurisdiction. The paramount consideration should be, whether setting aside of an order, which suffers from a legal infirmity, will advance the cause of justice or would it perpetuate an injustice. In the latter case the High Court should decline to press in aid its constitutional jurisdiction. It may be pertinent to refer to the case of Nawab Syed Raunaq All etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 in which Hamoodur Rahman, C.J. made following weight observation:- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be shown that the order sought to be set aside has occasioned some injustice to the parties. If it does not work any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." The above principle has been reiterated by this Court repeatedly. Suffice to refer to the case of Wall Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106, the case of The Chief Settlement Commissioner, Lahore u. Raja Muhammad Fazal Khan and others PLD 1975 SC 331, the case of Syed Nazim AH etc. v. Syed Mustafa Ali etc. 1981 SCMR 231. the case of Muhammad Umar u. Member, Board of Revenue and 9 others 1985 SCMR 1591, the case of Messrs Norwhich Union Fire Insurance Society Limited v. Muhammad Javed Iqbal and another 1986 SCMR 1071 and the case of Zameer Ahmed and another v. Bashir Ahmed and others 1988 SCMR 516." In PLD 1973 SC 36 Supreme Court of Pakistan observed at page 240:- "An order in the nature of a writ of certiorari or mandamus is a discretionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discretionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does network any injustice to any party, rather it cures a manifest illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked." In the instant case it would appear that impugned order of respondent No. 2 has in fact advanced the cause of justice and rectified the illegality by doing justice to the respondent No. 1. This Court in exercise of its constitutional jurisdiction would not allow to perpetuate an injustice but would interfere to foster the cause of justice. In the circumstances interference in the constitutional jurisdiction of this court with the impugned order would amount to perpetuate an injustice though it could be said the respondent No. 2 was not competent to pass the same and was passed without hearing the petitioners. But we have heard the petitioners' learned counsel in this petition and he has failed to show title in favour of the petitioner in respect of cell beneath shop No. F/280 Lajpat road. Accordingly no interference is called for in the circumstances of the case hence the petition is dismissed in limine, consequently M.A. 1383/1995 is also dismissed. (B.T.) Petition dismissed.

PLJ 1996 Karachi 571 (DB) PLJ 1996 Karachi 571 (DB) Present : ABDUL LATIF QURESHI AND ALI MUHAMMAD BALOCH, JJ. DR. QAZI KHURSHID AHMAD-Petitioner versus NATIONAL COUNCIL FOR HOMOEOPATHY and another-Respondents C.P. No. D-2150 of 1995, Dismissed on 1.4.1996. Constitution of Pakistan , 1973-- —-Art. 199--Registrar National Council for Homoeopathy-Suspension and direction to hand over charge of duty-Challenge to-Whether constitutional petition maintainable without availing remedy of appeal- Question of-Under Rule 33 of Unani Ayuverdic and Homoeopathic Practitioners Act, 1965, petitioner is entitled to file appeal but he has rushed to court without exhausting remedy of appeal-Held : Petition not maintainable, dismissed in limine. [Pp. 573 & 574] B & F Unani Ayuvedic and Homoeopathic Practitioners, Act 1965 (Act II of 1965)-- —-Rule 28-Suspension from Service-Whether amount to removal and required confirmation of Federal Govt. under S. 16 of Act-Question of- Circumstances which have been spelt out in comments accompanied by documents of Inquiry reports, show that there are serious allegations of mis-appropriation, embezzlement and misconduct against petitioner and he being Registrar of Council, being Incharge of entire record, must be separated from position he is enjoying so that necessary proof may be had from documents-Held: Removing employee from officer is different from getting charge from suspended employee-Held further: There is nothing illegal on part of respondent in issuing letter impugned to petitioner-Petition dismissed in limine. [Pp. 573 & 574] A, C, D & E Mr. Ch. M. AshrafKhan, Adv. for Petitioner. Mr. Zafar Iqbal Butt, Adv. for Respondents. Date of hearing: 1.4.1996. order Abdul Latif Qureshi, J.--By this Constitution Petition the petitioner who is a Homoeopathic doctor and is serving as Registrar of the National Council for Homeopathy, has challenged the two letters written by the President of the National Council for Homoeopathy on 30.10.1995, one addressed to the petitioner and the other addressed to Mr. Noor ur Rehman, also the employee of the National Council for Homeopathy. The first letter shows that a Fact Finding Committee had been appointed who made an interim report which was approved by the National Council for Homeopathy under which the petitioner Homoeopathic doctor Qazi Khurshid Ahmed who was working as Registrar/Secretary of the council, was suspended with immediate effect from 31.10.1995. He was also ordered to draw substance grant during the period of his suspension permissible under the rules. On the same day another letter was issued by the President of the council addressed to Mr. Noor-ur-Rehman of the Examination Branch of The National Council for Homoeopathy, directing him to take the charge as officiating Registrar from the petitioner who had been suspended with immediate effect. The petitioner has challenged these two letters on the ground that the service of the petitioner was governed by the Unani, Ayurvedic and Homoeopathic Practitioners Act. 1965 (Act, n of 1966) and the rules framed under Section 47 of the above Act known as "National Council for Homoeopathy (Staff) Service Regulations 1987." The contention of the petitioner is that under provisions of Section 16 of the Act, the petitioner was appointed as Registrar by the National Council for Homoeopathy with the previous approval of the Federal Government. The Sub-section (2) of Section 16 of the Act provides that on order of the council appointing, punishing or removing the Registrar from the office shall not take effect unless confirmed by the Federal Government. The • petitioner has contended that since the order of the suspension of petitioner has not been confirmed by the Federal Government, these letters are illegal and may be declared as without jurisdiction having no legal effect and that their operation may be stayed so that the petitioner may continue working as the Registrar of the National Council for Homeopathy. Pre-admission notice of this petition was issued and comments were called from the respondents. In their comments the respondent No. 1, stated that there were serious allegations of gross financial irregularities, mis­ appropriation and embezzlement of public funds against the petitioner which had been confirmed by a Fact Finding Committee, acting under the provisions of Rules Nos. 31 and 32 of the "National Council for Homoeopathy (Staff) Service Regulations, 1987." After receiving the initial preliminary report dated 4.5.1995 and the second interim report dated 10.10.1995 the council was of the view that prima facie there was proof of mis­ appropriation, embezzlement of public funds by the petitioner and also mis­ conduct committed by him. The copy of the initial report of the Fact Finding Committee was served on the petitioner requiring petitioner to comply with the directions of the Fact Finding Committee but the petitioner did not comply with those directions. The petitioner was suspended Under Rule 28 of "National Council for Homoeopathy (Staff) Service Regulations 1987" and ordered to handover the charge to another incumbent, but the petitioner defied the orders of the council and has filed present petition. The contention of the respondent's counsel further is that the petitioner is neither handing over the charge nor he is attending the office, instead, taking advantage of filing of the present petition, he is by passing the inquiry which is not coming to a conclusion because of non-cooperation on part of the petitioner. We have heard the learned counsel for the parties. Main contention of the learned counsel for the petitioner is that since the petitioner has ben suspended, this order amounts to an order passed under provisions of Section 16(2) of "The Unani, Ayurvedic and Homoeopathic Practitioners Act, 1965" and therefore, this order necessarily has to take effect after its confirmation by the Federal Government. For sake of convenience provisions of Sub-Section (2) of Section 16 of the Act are reproduced hereunder:- "(2) An order of the Council appointing, punishing or removing the Registrar from office shall not take effect unless confirmed by the Federal Government." Learned counsel for the petitioner has raised the point that suspension of the petitioner amounts to punishing him and removing him from his office, therefore, the order of the suspension cannot take effect unless confirmed by the Federal Government. Admittedly the order of the suspension has not yet been confirmed by the Federal Government. But we do not find ourselves inclined to agree with the contention of the learned counsel for the petitioner that the interpretation of sub-section (2) of Section 16 of the Act, requires that even before suspending the petitioner, the council should get it confirmed from the Federal Government. The circumstances which have been spelt out in the comments accompanied by the .documents of the inquiry reports, show that there are serious allegations of mis-appropriation, embezzlement and mis-conduct against the petitioner and he being the Registrar of the council, being incharge of the entire record, must be separated from the position he is enjoying so that the necessary proof may be had from the documents. Besides, we find that the "National Council for Homoeopathy (Staff) Service Regulations, 1987" provide a remedy of appeal. Under Rule 33, the petitioner is entitled to file an appeal but he has failed to file any, and thus we also feel that the petitioner has rushed to this Court without exhausting the remedy of appeal. We do not think that the intention of the legislature was that even a suspension order which follows necessarily further action of punishment and removing, if found necessaiy, after the inquiry, requires confirmation before hand from the Federal Government, Had that been the intention of the legislature the words "suspending" would have found place alongwith "appointing" "punishing" "removing". The learned counsel for the petitioner tried to argue that since the petitioner was to leave the charge on suspension, it amounted to removing him from the office. We do not agree with the learned counsel on this point. Removing an employee from the office is different from getting the charge from a suspended employee, till the finalisation of the inquiry against him. Therefore, we do not consider anything illegal on part of the respondent No. 1, in issuing the letters impugned in this petition to the petitioner and therefore, we do not find any substance in this Constitution Petition. Besides the petitioner has come to Court without exhausting the remedy of appeal. We, therefore, dismiss the petition in limine and vacate the interim order passed earlier. (B. T.) Appeal accepted.

PLJ 1996 Karachi 574 (DB) PLJ 1996 Karachi 574 (DB) Present: WAJiHUDDEN ahmad and agha saifuddin khan, JJ. SOHAIL AHMAD PATHAN-Petitioner Versus SIND PUBLIC SERVICE COMMISSION and another-Respondents Constitutional Petition No. D-744 of 1995, allowed on 26.3.1996. Constitution of Pakistan, 1973-- —-Art. 199-Read with Rule 5(1) of West Pakistan Civil Service (Executive Branch) Rules, 1964-Competitive Examination, 1993-Held by Sind Public Service Commission in 1995-Petitioner failed in "Essay in English" for want of one mark-Grace mark-Prayer for-In operative part of Rules, 1964, mode of issuance of merit list does not seem to have been dealt with and concept of merit list as it stood, pursuant to Rule 5(1)(9), in original Appendix "A" was dealt-Portion in Appendix "A" was, however, amended through notification dated June 29, 1969~This, it will be seen that grace marks, limited to 5, are to be given to really deserving candidates in two papers only"~Unless rule is beneficially construed, whole concept would became redundant because in that case even "really deserving" candidate with addition of legitimate grace mark(s) would never benefit from provision-There is no escape from fact that petitioner was really deserving candidate-Held: Petitioner was entitled to requisite single grace mark-Petition allowed. [Pp. 578,579 & 582] A, B, C, D, E & F Mr. K.M. Nadeem, Addl. Advocate-General Sindh. Dates of hearing: 1.1.1996 and 2.1.1996. judgment Wajihuddin Ahmed, J.--The petitioner, being a first class graduate from the Shah Abdul Latit University, Khairpur, appeared in Lhe Competitive Examination, 1993, held by the Sindh Public Service Commission in 1995. The petitioner secured 627 marks out of a total 900 and, admittedly, would have ranked fourth in the merit list issued pursuant to the written part of such examination but he failed in one paper entitled, "Essay in English", securing 15 marks instead of a minimum 16. The petitioner applied for grant of one grace mark to him but the Commission, according to him, for mala fide reasons, declined to grant such mark. On notices being issued, pursuant to the filing of this petition, the Sindh Public Service Commission submitted its comments on 12.12.1995 but such comments, being vague, further comments were required and such were field on 18.12.1995. In course of time, other material was also placed on the record. The upshot of the respondents' defence is that in all 7000 candidates were found eligible in the referred competitive examination, out of which number 1708 appeared in the written test, 187 qualifying the same. However, there were only 64 vacancies to be filled. In the event, according to the respondents, the petitioner had been accorded the facility of grace marks, he would have figured at Sr. No. 188, required to be below such candidates, who had passed the examination and did not have the advantage of grace marks. Besides, no less than 122 candidates came within the ambit of the facility of the grace marks but such facility has never been granted over the years, the available seats remaining much less than the successful candidates, qualifying the written test. In the petition, the petitioner has come up with the following prayers:- "It is, therefore, prayed that this Honourable Court may be pleased to:- (a) Hold and declare that the petitioner is fully entitled to the grant of grace mark that is one mark in Essay in English Test and non-grant of single mark by the respondent commission is without lawful authority and of no legal effect and consequently this Hon'ble Court may kindly direct the respondents to award one grace mark to the petitioner in the Essay in English written test to enable the petitioner to participate in the forthcoming vivas commencing from 12 th instant. (b) To hold and declare the expression "Those Successful Candidates" appearing in the note appended below Compulsory Subject on Page 4 of Annexure "A" include only those candidates who have competed with the petitioner in the written portion of the- Combined Competitive Examination anJ have been declared as successful or have obtained higher marks than 627 as obtained by the petitioner and does not include "All Successful Candidates" as has been mis-interpreted by the respondents especially respondent No. 2 which is legally misconceived and contrary to the very spirit of aforesaid note. (c) Direct the respondent commission to allow the one grace mark in Essay in English and allow him to appear in the forthcoming vivas commencing from 12th instant. (d) Grant interim injunction against finalising the merit list for forthcoming vivas and final merit list of all the candidates of written as well as viva tests for the year 1995 about combined competitive examination. (e) Direct the respondents to allow the petitioner to appear in the coming vivas and not to finalize the results and final results till the disposal of this petition. (f) Any other relief which this Hon'ble Court deems fit and proper " Hearing the matter, we disposed of the same through a short order passed on 2.1.1996, reproduced as below:- "This case has been received upon transfer from the Hyderabad Circuit Bench of this Court because of non­ availability of a Division Bench there on account of vacations of the Court. We had heard this matter on 1.1.1996 but adjourned it for today because the learned Additional Advocate General, Sindh was awaiting for the relevant record from Hyderabad. There is an urgency in the case because the learned Additional Advocate General, Sindh, states, upon instructions, that whereas the result of the written test from the Combined Competitive Examination 1993 has been declared corresponding result of the viva voce test is ready to be announced any time. Hearing the above matter and the listed application in the foregoing background, upon inquiry we have been informed that in the event the petitioner was allowed grace mark(s), which are permissible upto five in the papers, with a maximum of two such papers, the petitioner's total tally of marks instead of 627 would have become 628 and the petitioner would have been placed at serial No. 4 amongst the 187 candidates who have been declared as successful in the written examination. In other words, all that the petitioner needed to qualify in the written test was to get 16 instead of 15 marks-in the paper entitled, "Essay in F.nalish". It is conceded at the bar that grant of grace marks is within the discretionary power of the Sindh Public Service Commission but that power is to be exercised for "deserving candidates in one or two papers" only. We thus enquired from the learned Additional Advocate General Sindh as to what other deserving candidate can be in contemplation of the Rules than one who would have figured at No. 4 on the merit list but for a missing single mark. That learned officer was unable to make a satisfactory answer and we have no doubt that the Commission in the petitioner's case has failed to exercise its discretion in accordance with law. If deserving candidates are made to suffer in this way, there can be little doubt that the only casualty in the process would be merit, and such an outcome of exercise we are not prepared to condone. In the circumstances and for detailed reasons to be recorded separately, we allow this petition except that as regards sub-clause 'V in the prayer clause we would condition the same by observing, in accordance with the Rules, that the "grant of grace marks shall not entitle the grantee to have better position in the merit list than those successful candidates who have not been granted any grace marks", leaving it for the commission to examine whether the quoted condition would remain applicable to the petitioner even if he qualifies the viva voce examination, which examination we have no doubt would be held without any loss of time in order that declaration of the relevant results are not unnecessarily dekyed. Before parting we would saddle the respondents with the costs of this petition and also require the respondent No. 1 to explain in writing as to why the discretionary power, which is vested in the commission, had not been exercised at all even though an Ex Facie deserving case subsisted. Explanation to be submitted within one month." In the meantime, when the case was taken up for recording reasons, it was found that neither of the parties had placed the relevant Rules on the Record. In other words, relevant portion of the prospectus on which the contest centered was not substantiated by the Rules. A direction, therefore, was issued and the respondents filed a purported counter affidavit on 26.3.1996 alongwith a copy of the Rules, which was brought on record. Rule 5(1) in the West Pakistan Civil Service (Executive Branch) Rules, 1964, as amended by notification dated June 20,1969, is this:- "5. Method of Recruitment. (1) Recruitment to the service shall be made in the following manner:- (a) by initial recruitment on the recommendation of the Commission based on the result of a competitive examination conducted by it namely in December every year in accordance with Appendix "A"; or (b) by promotion." In the operative part of the Rules, the mode of issuance of merit list does not seem to have been dealt with and the concept of merit list as it stood, pursuant to Rule 5(l)(a), in the original Appendix 'A" was dealt with in this manner:- "No candidate shall be summoned for viva voce test unless he has obtained at least 30 per cent marks in each individual Written Subject. No candidate shall be considered to have qualified in the examination unless he also obtains at least 30 per cent marks in viva voce. Failure in or absence from viva voce would mean that the candidate has failed to Qualify for appointment and his name will not be included in the Merit Lists." (Emphasis added). The reproduced portion in Appendix "A" was, however, amended through the same Notification dated June 29, 1969, as above, appearing in the Gazette of West Pakistan Extra-ordinary dated June 26, 1969. Such relevantly is as under:- "No candidate shall be summoned for viva voce test nless he has obtained at least 33 per cent marks in each individual written paper and 50 per cent marks in the aggregate of the written portion of the examination. Five Grace Marks may however be given to really deserving candidates in one or two papers; Provided that such grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks. No candidate shall be considered to have qualified in the examination unless he also obtains at least 30 per cent marks in viva voce. Failure in or absence from viva voce shall mean that the candidate has failed to qualify for appointment and his Name will not be included in the Merit List." (Underlining added.) Comparing the above reproduced amended and unamended notes in Appendix "A" to the Rules, several things stand out: firstly, in the unamended provision passing criteria had nexus with a subject which upon amendment was reduced to each paper, a subject having the potential of more papers than one. In the instant case, were English taken as a subject, the petitioner would have more than comfortably got through since in the other English paper he secured 68 out of 100 marks. Secondly, the pass percentage for each subject, as distinguished from each paper in the amendment, was 30% which got enhanced to 33% subsequently. Likewise, at the outset there was no minimum requirement of any aggregate which too, through the amendment, was, for the first time, fixed at 50% total marks. Correspondingly, there was to stipulation of grace marks in the original version, the same apparently emanating because of the revised requirements. As it is under the unamended text a case like that of the petitioner would have necessitated no grace marks. The element of grace marks should also be viewed in the legislative background that the passing percentage for viva voce has remained unaltered throughout at 30%, undergoing no revision and attracting no element of grace. Lastly, the original rule spoke of merit 'lists" whereas the current version talks only of a single merit "list". Even so, lists are still issued twice-over, first after the written examination and the second upon holding of the viva voce. There could, therefore, be some confusion about entering a candidate on the merit list and the provision, accordingly, is to be interpreted advancing the acceptability of merit and discouraging lack of it. Accordingly, in order to ascertain the intent of the law, we have to interpret the above substituted provision in the background of its legislative history, always keeping in mind that it is the best that the Civil Service deserves. Thus, it will, at once, be seen that the grace marks, limited to 5, are to be "given to really deserving candidates in two papers only". The concept of "really deserving candidates" must, therefore, first satisfy the requirement of a minimum of "50 per cent marks in the aggregate of the written portion of the examination." Next, the aggregate marks, obtained in the written part of the examination must be high enough to qualify for being considered as "a really deserving" candidate. It is an admitted position that the concerned candidate, petitioner here, secured 627 marks on the aggregate out of a total 900 marks in the written test and uninhibited by any grace mark would have ranked fourth amongst the candidates, who qualified the written examination. In other words, there have been only three candidates who obtained more than 627 marks and the rest obtained less than that tally. Apply and principle, as one may, there is no escape from the fact that the petitioner was a "really deserving" candidate and was, therefore, entitled to the requisite single grace mark. The commission, resultantly, acted illegally in not exercising its discretion to advance the prospects of a truly meritorious individual. Now, what would have happened had the Commission accorded the mark where it, was due? No more than that the candidate, who would have failed otherwise, would have become entitled to be called for viva voce. The reason for the Commission not responding positively is that while there were 187 successful candidates, there happened to be only 64 vacancies and even if the petitioner was accorded the benefit, he, according to the Commission's interpretation on the rule, would have figured at Serial No. 188 of the merit list and thus far from being entitled to be selected. This aspect would be attended to later. Another contention is that there were several candidates failing by one mark only and if in one case the benefit was accorded, such may have opened the door for an endless exercise. In view of the connotations of the expression "really deserving" candidate discussed, we are constrained to conclude that hardly a few would have merited grace in the over-all perspective. The apprehension, therefore, is ill-founded. Now comes the other question in the case on which, because such would arise only if the petitioner is called for the viva voce and qualifies therein, we have, at this stage, desisted in granting relief. That emerges from a further restriction, occurring in the reproduced portion, requiring that "grant of grace marks shall not entitle the grantee to have a better position in the merit list than those successful candidates who have not been granted any grace marks." It has already been noticed that the element of grace marks, missing from the original text was introduced through an amendment which, in at least two different ways, enhanced the qualifying requirement in the written examination. The obvious object was to provide a written examination. The obvious object was to provide a simultaneous reprieve to otherwise demonstrably deserving cases. Who does not know that, in many a subjects, there can be no mathematical certainty in marking the papers and a single mark here or there can make a world of difference? Besides, on a given day, state of a person's mind or body may fail to keep up with the challenge and yet, by and large, the candidate may be simply outstanding. Last, but not the least, can it, in these difficult times, be ruled out that somebody, moved by pure malice, may in this way try to do in an otherwise unbeatable candidate? Hinting this precisely, the petitioner also sought re-checking. Hence the wisdom in the rule. The respondents, none-the-less, have been interpreting the provision to mean that, in the first instance, all the successful candidates would be brought on the merit list and thereafter shall figure the grantee of the grace marks, if any. Since, however, the number of seats to be filled by the Publi Service Commission were, according to the respondents, much less than the successful candidates in the written test, no question arose of any deserving candidate being in the picture for grant of grace marks to him because everir if grace marks were added and such candidate was allowed to pass in the failed paper no benefit could accrue to him, making the exercise meaningless. While we have refrained from granting relief in the foregoing context, covered by sub-clause (b) in the prayer clause, expecting that if and when occasion arises, that is to say in case the petitioner qualifies in the viva voce, the Commission would not be slow in dispensing justice, taking into account all the implications of the contest, that circumstances does not deter us from spelling out the necessary guidelines for facility of being drawn upon in case of need. Thus it may not be insignificant that the original text contemplated merit list(s) and not a single list and relative to the restriction, the framers of the Rules may have been referring to the merit list issued after written portion of the examination, letting the grantee of grace mark(s) to figure at the end of such list, the final position emerging in the normal course in the ultimate list issued following the viva voce. Interestingly, it has been conceded that even now successive lists are issued, first after the written test and the second after the viva voce. As to the first, it is claimed that such only reflects the successful examinees in the written portion whereas the second is the merit list. When the original rule contemplated merit list(s) obviously implying that the first also was issued in the order of .merit, it is difficult to understand the current logic. Indeed, if both lists were to reflect merit the whole rule should fall in place and there would be no redundancy, as shall be presently discussed. Now, we have been of the considered view that such provisions, as the foregoing, have to be beneficially construed and a deserving candidate, in terms discussed above, if available, is to be accorded relief by the Commission. This can be done by interpreting the rule with reference to its historical background as here-in-above discussed. Another alternative is to accord the grace mark(s), if wan-anted, enter the candidate in the list of successful candidates in the written part and call him for viva voce. This for the petitioner has come about upon the limited success of the petition. Here onward, if the grantee of the grace mark(s) crosses the hurdle of the viva voce, he may not be placed higher on the ultimate merit list than such candidates who, without benefit of grace marks(s), would have normally figured above him. In other words, taking the instant case as an example, if there was another candidate having 628 marks and the petitioner was accorded the benefit of one grace mark, bringing his tally to 628 marks the petitioner would rank only after the candidate who unaided with the facility of the grace mark already had secured 628 marks. Correspondingly this would not mean that once the addition of such grace mark was allowed to the petitioner he would rank helow a person who had secured only 626 marks, having been lower, unaided by any grace mark to the tally of the petitioner, which stood at 627. All this, however, should come for reckoning only after the result of the viva-voce, for no one can know whether a candidate successful in the written part would succeed in viva too. Here a possible hurdle may be encountered and for that reason the first alternative above discussed may be a better option. We are visualising a situation where some candidates, obtaining higher marks than the beneficiary of grace mark(s), getting lesser marks in viva, secure less total marks than the beneficiary and similarly some getting less marks than the grantee in the written test on account of higher marks in viva, get a better over-all result. If the first alternative of two merit lists was adopted, the matter would be simple. In this, the second option, perhaps both sets of such candidates should rank higher than the beneficiary. But all these alternatives we have left for the Commission to adopt in the fitness of things and in good time. . In conclusion, all that we need^ to say is that unless the rule is beneficially construed, the whole concept would^ecome redundant because in that case even a "really deserving" candidate with the addition of legitimate grace mark(s) would never benefit from the provision. That indeed seems to have been the case with the Commission because we are informed that in no case whatsoever, over the years, has anyone been allowed to benefit under the rule. This implies that the Commission has been interpreting the concept in a manner, encouraging redundancy to an absolutely valid and perfectly just promulgation. Redundancy is impermissible in law and we have, accordingly, allowed the petition in the foregoing terms duly detailed in our short order. Before parting we may add that, in the circumstances in which we heard and decided the petition, it has not appeared necessary to determine the allegations of purported mala fides, raised by the petitioner and accordingly we are not inclined to consider the demand of the petitioner for re-evaluation of the paper in which he failed and in relation to which he, inter alia, has claimed a single grace mark. For the same reason, we have not been inclined to take note of allied pleas of mala fides against the Respondent No. 2 and the claim that respondents, in .routine, have been declaring the results almost twice over. (B.T.) Appeal accepted.

PLJ 1996 Karachi 583 PLJ 1996 Karachi 583 Present: SHAFT MUHAMMADI, J. ABDUL GHANI and 9 others-Plaintiffs versus AHMAD HIMANI and 5 others -Defendants Suit No. 470 of 1992 decided on 10.10.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)- —O.I. Rule 10--A court is competent to direct joining of two parties, namely, necessary parties and proper parties-Parties against whom no relief is sought, they cannot be termed as necessary parties-Similarly only those parties would be treated proper parties whose presence before a Court is necessary for deciding any issue or all relevant questions in suit completely and effectively. [P. 587] A (ii) Civil Procedure Code, 1908 (Act V of 1908)-- —O.I. Rule 10-Question of addition of parties is generally not one of initial jurisdiction of Court but of judicial discretion which has to be exercised in view of .facts and circumstances of a particular case-Wider powers possessed by court do not mean that Courts should start simultaneous and parallel investigation of controversies particularly in respect of those points which are neither part of pleadings nor of issues framed by Court. [Pp. 588 & 589] B (iii) Civil Procedure Code, 1908 (Act V of 1908)-- —O.I.R. 10-At time of considering an application under Order 1 Rule 10 CPC Court must not ignore this factor that allowance of application should not become a cause of changing nature of suit, embarrassing issues of suit because all such acts are beyond scope of this provision of law. [P. 589] C Mr. Hamza I. All, Advocate, for Defendant No. 1. Mr. Akram Shahbaz, Advocate, for Defendants No. 4 & 5. Date of hearing: 10.10.1995. order This order is intended to dispose of CMA No. 3610/95 field u behalf of Defendants No. 4 and 5 under Order 1 Rule 10 C.P.C. read wan section 151 C.P.C. The disposal of this application requires to bring into light certain glaring aspects of the suit which involves the following back-ground : Soon after the Creation of Pakistan, one Mst. Kulsum Bai is stated to have purchased the property in dispute bearing No. Q.R. 9/4 Survey No. 4 measuring about 3318 Sq. Yards situated at Moulvi Tamizuddin Khan Karachi (hereinafter referred to as "the Property) on 9.12.1947 by Registered Sale Deed. As all such Sale Deeds had to be verified by the Custodian Department, therefore, the said Sale Deed was also verified by Additional Custodian (Judicial) on 12.5.1950 in Case No. 2002/1949 who found that transaction was bonafide for adequate consideration & there was no illegality therein and no loss had been caused to Pakistan. Mr. Hamza I. Ali, learned counsel for defendant No. 1, namely Ahmed Himani, contended that title of Mst. Kulsum Bai was never challenged till she died on 9.2.1986. After her death, her "Will" was probated by Chief Justice of this Court on 8.10.1989 in S.M.A. No. 166 of 1989 and as a result of that "Will" defendant No. 1 got the property in dispute. 2. Contrary to the claim of defendant No. 1, it was claimed by the plaintiffs that their father had obtained the said property through Public Auction on 12.8.1960. P.T.O. was issued in favour of their father on 27.1.1962. After the death of their father in 1972 when they approached the concerned office of CDC to get their names mutated, it was disclosed to them that the said property already stands mutated in the name of Mst. Kulsum Bai. Hence the plaintiffs instituted the present suit. In the suit, mutation in he name of Mst. Kulsum Bai was assailed on the ground that order in favour of Mst. Kulsum Bai was obtained on statement of one Ghulam Hussain and the said Ghulam Hussain later on filed Misc. Application No. 8/152 of 1950 which was allowed on 14.12.1950 and the Custodian declared the aforesaid property as evacuee by setting-aside the order dated 12.5.1950, passed by Additional Custodian (Judicial) in Case No. 2002/1949. It was further claimed that after that declaration the property in dispute was put to open auction on 12.8.1960 and plaintiffs father purchased the said property as per claim of the plaintiffs. 3. So far as the case of defendants No. 4 and 5 is concerned, they were depositing rent in court in the name of Mst. Kulsum Bai. Result of controversy between the plaintiffs and defendant No. 1 on the point of ownership of property may affect the tenants (defendants No. 4 and 5) but only to the extent of their real landlord. Notwithstanding to the truth or falsehood of the plaintiffs, claim that probate of "Will" of Mst. Kulsum Bai was obtained fraudulently by making misrepresentation, it is apparent that if the suit is decreed in favour of the plaintiffs then defendants No. 4 and 5 become the tenants of the plaintiffs and if the suit is dismissed and is decided in favour of defendant No. 1 then they become tenants of defendant No. 1. 4. However the defendants No. 4 and 5 have taken a new stand in the application in hand which is very interesting and may prove fatal to the stand of the plaintiffs and defendant No. 1 besides exposing the authorities of Board of Revenue and the KMC. According to this stand neither plaintiffs are lawful owners nor defendant No. 1 but the property in dispute is an Evacuee Property because the Custodian E.P. Karachi (Akhtar Hussain) had declared on 14.12.1980 that the aforesaid property in an Evacuee Property and the order of Additional Custodian (Judicial) in Case No. 2002/49 was set aside by the Custodian. It was further alleged at bar that the plaintiffs and defendant No. 1 are in collusion with one another to get the property vacated from the tenants so that they could sell the same easily without any hinderance from the concerned authorities under some legal cover. Another document brought on record relates to KMC wherein it was stated that KMC reserves the right to take further action as the lease of the plot in question has already expired on 29.5.1993. Photocopy of the lease brought on record alongwith the application clearly shows that the said properly was leased for a term of 99 years on 30.5.1894. On the basis of these documents, Mr. Muhammad Akram Shahbaz ' contended the defendants No. 4 and 5 do not remain tenants of the plaintiffs or the defendants if the property is an Evacuee Property. 5. It was in the light of this back ground that CMA No. 3610/95 was moved before this Court with a prayer that due to changed facts and circumstances, (1) Secretary (RS&EP) Board of Revenue Sindh, Karachi and (II) Senior Director Land and Estate, KMC Karachi be joined as defendants specifically to decide issue No. 6 which runs as under : "Whether custodian Evacuee Property passed alleged order dated 14.12.1950 declaring the property in question evacuee. If so, what is its effect ? Mr. M.G. Dastagir, the learned counsel for the plaintiffs appeared in the Court and stated at bar that he has no objection if the said application is allowed. Thus the relief sought by defendants No. 4 and 5 is that the Court should take initiative to join the concerned departments as defendants on the face of record no matter the said defendants are having very sound sleep or are not coming forward to protect the rights of their departments for the reasons best known to them although reasons of showing no interest by the officials my not be different from those which are usually known to the public including their collusion with any specific party or due to corruption at the cost of their respective departments interest. On the other hand it was contended by Mr. Hamza I. Ali that the referred documents are forged and cannot be relied upon. It was also alleged that the plaintiffs and defendants No. 4 and 5 are in collusion with the ' plaintiffs to delay the matter. Whether the plaintiffs and defendant No. 1 are in collusion with one another (as alleged by defendants No. 4 & 5) or the plaintiff and the defendants No. 4 & 5 have joined their hands together to defeat defendant No. 1 in this controversy (as alleged by defendant No. 1), nothing can be said with certainty because this Court has no mystical, magical, spiritual or super-natural forces to find out the role of each party with reference to the allegations of collusion unless the court records some evidence. 6. At the same time, particularly at this stage, several questions appear to remain unanswered. For example : (i) Why the Authorities of Evacuee Property, inspite of this knowledge that orders of Additional Custodian in favour of Kulsum Bai had been set aside by the Custodian, remained silent and allowed the said Mst. Kulsum Bai to get the property mutated in her name or remained spectator till her death ? Such criminal silence cannot take place unless palm of some corrupt bureaucrats had been properly greased. (ii) If the Custodian had not passed any order to set aside the order of Additional Custodian and the documents in this regard are found forged as alleged by Mr. Hamza I. Ali, then presence of such documents in the record could not take place unless some corrupt bureaucrats were bribed to perform this dirty role by remaining in collusion with the plaintiffs. (iii) How the orders of Additional Custodian in favour of Mst. Kulsum Bai or order of the Custodian to set aside the order of Additional Custodian were obtained by defendants No. 4 and 5 who were are only tenants ? It is known to everyone that at least is not possible for any common person to obtain such documents without greasing the palms of corrupts bureaucrats. The result of such corruption has given rise to increase of litigations among the poor citizens and the present suit is only one out of several examples. On account of such corruption, big pieces of lives of poor litigants are spent in hope of getting these properties and in most of the cases these unfortunate hopers leave this world leaving their heirs to face the same agonies. These painful realities always forced me to believe that corrupt bureaucrats are worse than prostitutes because prostitutes sell their own chastity to earn their bread and butter under duress or on account of their inherited profession but the corrupt bureaucrats sell the chastity of humanity on account of their lusty nature and unbounded avarice of wealth by unlawful means at the cost of nation's integrity by sowing the seeds of everlasting disputes among the poor citizens. It may be the most useful service to expose such corrupts at the time of final disposal of this suit, if possible. 7. What would be the future and fate of defendants No. 4 and 5, if they are ejected from the premises in dispute by defendant No. 1 on account of rent cases pending before the Rent Controller if he fails to prove his ownership in the present suit ? It appears that defendants No. 4 and 5, to get their fate protected, approached this Court again and again and once in the Supreme Court to get the rent cases stayed but they always failed. If on account of certain changed circumstances, as claimed in the application in hand, had come to light and it had created any new cause of action, these defendants could file a separate suit but I have no doubt in my mind that filing of present application under Order 1 Rule 10 CPC before this Court was not a proper path to get the desired result. 8. The present application under Order 1 Rule 10 CPC has been moved by defendants No. 4 and5 on the ground that unless the Secretary, Custodian of Evacuee Property and K.M.C. are made parties issue No. 6 cannot be decided. It may be advantageous to reproduce the said issue hefeinbelow aerain although reproduced in para 5 above :- "Whether Custodian Evacuee Property passed alleged order dated 14.12.1969 declaring the property in question evacuee if so what is its effect ? I think that contention of the learned advocate is totally misconceived because if the court decides that Custodian Evacuee Property has not passed such order, the defendant No. 1 becomes owner of the property in dispute and if the Court decides that the Custodian passed the said order, then plaintiffs become owner of the property provided the said property was auctioned and purchased by the fath-jr of the plaintiffs. On the other hand if the property was not cautk . ; \ clien it is still an "Evacuee Property". In any case, defendants No. 4 and 6 would remain only tenants in the said property no matter the plaintiffs or defendant No. 1 succeed or fails to prove their ownership. Thus the question arises whether an application under Order 1 Rule 10 CPC can serve any purpose of defendants No. 4 and 5 to get any relief if any of them is proved owner ? It can be said by these defendants that they be not ejected from the premises in dispute unless the question of ownership is decided. No doubt the defendants have right to raise such an issue and they can adopt any other path permitted by law with reference to that issue but moving an application under Order 1 Rule 10 CPC is certainly not the proper path to get that relief. Hence this application merits no consideration for allowance and is liable to be dismissed. My reasons for holding so can be summarised as under : (a) A court, while exercising jurisdiction under Order 1 Rule 10 CPC is competent to direct joining of two classes of persons, namely, necessary parties and proper parties. The parties against whom no relief is sought, they cannot be termed as necessary parties. Similarly only those parties would be treated proper parties whose presence before a Court is necessary for deciding any issue or all relevant questions in the suit completely and effectively. Reliance in this regard can be placed on a case reported as Islamic Republic of Pakistan v. Abdul Wait Khan in PLD 1975 S.C. 463 = PLJ 1975 S.C. 345. If the contents of application with reference to issue No. 6 referred in the application are weighted in the scale of this well-settled proposition then it appears that neither any of the parties is a necessary party nor a proper parly. (b) Similarly contention of the learned advocate for defendants No. 4 and 5 could be given some importance only :- (i) if these defendants had taken a stand in the written statement that they were neither the tenants of the plaintiff nor of defendant No. 1 because the properly was still an evacuee property; or (ii) that the plaintiffs were incollusion with defendant No. 1 to deprive the defendants from the said property; and/or (iii) if there had been some issue framed by the Court on this stand. The reason for holding so is obvious. The burden of proving any such plea is on the shoulders of defendant No. 4 and 5 which burden could be discharged by bringing someone as witness from the concerned department as witness of defendant No. 4 and 5 or as court witness. As neither such plea has been taken in the written statement nor any issue has been framed by the Court, therefore application of the defendants No. 4 and 5 can be given the least consideration to serve any of their purposes. If the defendants were definitely of the view that nature of the case had changed after some evidence, they could either apply to file amended written statement or had instituted a separate suit. Hence if can be safely said that present application was filed with malafide intention only to get the proceedings of rent cases stayed under one protect or the other. 9. The application in hand can be seen from another angle too particularly on the basis of contention raised by the learned counsel for defendants No. 4 and 5 that this court has a wide discretion in the matter of joinder of parties. I consider it necessary to point out that question of addition of parties under this provisions of law (Order 1 Rule 10 C.P.C.) is generally not one of initial jurisdiction of the Court but of judicial discretion which has to be exercised in view of the facts and circumstances of a particular case. The wide powers possessed by the Court do not mean that the Courts should start simultaneous and parallel investigation of the controversies particularly in respect of those points which are neither the part of pleadings nor of the issues framed by the Court. After going through the application and its supporting affidavit I feel that the relief sought by the learned advocate amounts to asking the court to start simultaneous and parallel investigation of its own to find out whether the plaintiffs or defendant No. 1 only by relying upon the allegations of defendants. I have no doubt in my mind that such act of the Court would be totally out of the scope of Order 1 Rule 10 C.P.C. Hence this contention has no force at all. 10. It is important to mention that at the time of considering an application under Order 1 Rule 10 C.P.C. the Court must not ignore this factor that allowance of application should not become a cause of changing the nature of the suit, embarrassing any of the parties, loading the record and complicating the issues of the suit because all such acts are beyond the scope of this provisions of law. Reliance in this regard can be placed on a case reported as Pakistan Banking Council and another v. All Muhammad Naqvi and others in 1985 SCMR 714. On the basis of this proposition, if application of defendants No. 4 and 5 under Order 1 Rule 10 CPC is allowed, it would undoubtedly attract, inter alia, the following consequences : (i) Nature of the suit with reference to the ownership of the property in dispute as claimed by the plaintiff or defendant No. 1, would be changed. (ii) It would force the existing parties to amend the pleadings of the parties, sought to be joined as defendants, submit their written statements in accordance to the new stand of defendants No. 4 and 5 regarding ownership of the property which amounts to embarrassing the plaintiffs as well as defendant No. 1. (iii) Thus result of joining the proposed parties as defendants particularly when their legal status is still in the air and shadowed by their own character, not only will create complications but also increase the record un-necessarily. 11. In the light of this discussion, application filed on behalf of defendant No. 4 and 5 under Order 1 Rule 10 C.P.C. merits only dismissal and the same is accordingly dismissed with cost. 12. Perhaps the learned advocate for these defendants had realized the fate of this application, therefore, he prayed at bar that learned Rent Controller dealing with the rent cases filed by defendant No. 1 against defendants No. 4 and 5 be directed to decide the issue of relationship of landlord and tenant. It was further alleged that the Rent Controller was not inclined to decide the relationship between the parties. This statement without any affidavit cannot be relief upon and it would amount to establish a bad precedent if this Court goes on issuing instructions to the Rent Controllers or any other Tribunal in such manners. At the same time I do not believe that any Rent Controller can avoid to decide such point if the relationship has been denied by any tenant. The Rent Controller is a Tribunal and he may not adopt the same procedure as it adopted by the Civil Courts but at the same time it can not be presumed that the Tribunal can ignore any of the important issue raised in the applications because such conduct can create several doubts about the integrity of such Tribunal and at the same time it can become a cause of further delay in disposal of the cases finally because the Superior Courts are generally inclined to remand the cases back to the same courts if any issue or any important point raised by any of the parties is ignored by any of the subordinate court/Tribunal. On account of these reasons I need not to issue any directions because I cannot believe that the learned Rent Controller would avoid to decide any such issue which is the root of any rent case for ejectment. (K.K.F.) Order accordingly.

PLJ 1996 Karachi 590 PLJ 1996 Karachi 590 Present: hamid ali mirza, J. Mst. QAMARUN NISHAN and 10 othersversus CH. MUHAMMAD UMER (deceased) and 13 others-Respondents II-Appeal No. 3/95 of 1995 dismissed on 22.10.1995. (i) Civil Procedure, Code, 1908 (Act V of 1908)-- —S. 100--Possession, mesne profits and permanent injunction-Suit for- Suit decreed-Appeal dismissed-Challenge to-Second appeal is permissible U/S. 100 on specified grounds-Appellants have not been able to point out any ground whereby appeal could fall within mischief of section 100-Nothing has been shown to how decision given by courts below is contrary to law or any usage having force of law or there has been failure of courts below to determine issue of law or issue of usage- Held : Courts below have properly appreciated evidence on record and no illegality warranting inteiference has been pointed out in second appeal- Appeal dismissed. [P. 597] B (ii) Words and Phrases- —-Estoppel-General rule of-As per 'Bigelow on Estoppel', Sixth Edition in following words, "it may be laid down as a broad proposition that one who, without mistake induced by opposite-party, has taken a particular position deliberately in course of litigation must act consistently with it; one cannot play fast and loose". [P. 596] A Mr. Hyder Raza Naqvi, Advocate for Appellant. Mr. Mumtaz Ahmad Shaikh, Advocate for Respondents. Date of hearing: 22.10.1995. judgment This is a Second Civil Appeal filed under Section 100 of CPC against the judgment and decree dated 9-2-1995 passed by learned VII-Additional District Judge, Karachi-East, in Civil Appeal No. 143/94, Mst. Qamarun Nishan v. L/.Rs. of deceased Chaudhary Muhammad Umer, whereby the said appeal was dismissed confirming the judgment and decree dated 3-7- 1994 passed by Vl-Senior Civil Judge, Karachi-East, in Civil Suit No. 4370/83. Brief facts of the case are that the respondents predecessor-ininterest filed suit against the appellants for possession, mesne profits and permanent injunction in respect of premises constructed on Plot No. 289/1, Alfred Street, Garden West, Karachi, on the ground that he was the owner of the said premises which was transferred to him as per Final Transfer Order dated 12-11-1969 by Settlement Authorities and the portion admeasuring about 140 Sq. Yds. out of the entire plot transferred to him, was given to deceased Mushtaq Ahmad, husband of the appellant No. 1, on rent who did not pay the same hence the respondents' predecessor-ininterest filed D.W.A. Application No. 483/1971 but in the said proceedings, the deceased, husband of the Applicant No. 1, denied the relationship of being tenant of the respondents therefore the ejectment application was got dismissed due to non-appearance of the respondents' predecessor-in-interest. Mushtaq Ahmad, deceased, husband of the appellant No. 1 expired in the year 1982, leaving the appellants as only surviving legal heirs who also filed revision application before the Settlement and Rehabilitation Commissioner, Karachi, for cancellation of final transfer order in respect of properly in question but the same was dismissed. In the said circumstances, the respondents' predecessor-in-interest filed the present suit against the appellants who filed written-statement stating therein that deceased Mushtaq Ahmad, predecessor-in-interest of the appellants was in possession of land admeasuring 155 Sq. Yds. out of the total area of plot bearing No. 89/1, Alfred Street, Garden West, Karachi, since 1948 and whereupon he had raised an independent and exclusive house consisting of three rooms with attachment and, thus, was the sole absolute and exclusive owner thereof to the knowledge of the respondents and after the death of the said Mushtaq Ahmed in the year 1982, present appellants continued to reside in the said property as owners thereof. It was further stated that the possesison of the said plot after the death of Mushtaq Ahmad remained with the present appellants and the title over the said plot was perfected by prescription, the possessions of it being continues, hostile and notorious to the knowledge of the respondents. It was also stated that deceased Mushtaq Ahmad was not given the premises either as a licence or as a tenant therefore there was no question of payment of rent to the respondents' predecessor-in-interest at any time. The Court of Senior Civil Judge Settled the following issues :- 1. Whether the suit is under valued ? if so, of what effect ? 2. Who has raised the construction ? 3. Whether the transfer of suit property has been effected without the possessions of the plaintiff over the same ? 4. Whether the defendants and their father have been in possession of the suit property since 1948 ? 5. Whether the plaintiff is entitled to the relief claimed ? 6. What should the decree be ? The Court of Senior Civil Judge after recording the evidence and hearing the counsel for parties decreed the suit in favour of the respondents against which First Appeal No. 143/93 was filed and was heard by VII-Additional District Judge, Karachi-East, and was dismissed on 9-2-1995 against which the present second civil appeal has been preferred. I have heard the learned counsel Mr. Hyder Raza Naqvi for appellants and learned counsel Mr. Mumtaz Ahmad Shaikh for respondents and perused the R&P of the case and the case law cited by the parties' counsel. Learned counsel for appellants has stated that as per order dated 9- 4-1995 at the time of admission of appeal he has dropped all the pleas taken in his second appeal and has stated the confine his arguments at the time of regular hearing of the appeal as the "whether respondents/plaintiffs were estopped from bringing the present suit", therefore, he would advance his arguments only on the said plea. He has referred to the extract of evidence of Aftab Ahmad, attorney of the respondents from his deposition wherein it has been stated :- "In 1954-55 deceased Mushtaq Ahmad came from India and my father gave him three rooms and one open space for residing, the area was 140 Sq. Yds. and he was given the same on rent. He used to pay rent of Rs. 70/- per month and gave the same till 1969 and thereafter did not pay the rent and gave application to Rehabilitation Department claiming himself to be the owner of the portion in his occupation and applied for its allotment, the Revision filed was heard and in 1970 said revision was dismissed." Mr. Hyder Raza Naqvi in view of the above statement has argued that as deceased Mushtaq Ahmad was said to be tenant by the respondents' attorney, therefore, the respondents should have proceeded with their Ejectment Application No. 1094/71 and should not have got it dismissed for non-prosecution therefore the present suit for possession, mesne profits and injunction against the appellants was not maintainable as the respondents were estopped for treating the appellants to he unauthorised occupants of the portion of the premises in their possession. He has placed reliance upon Ghulam and another vs. Ali Muhammad and others (PLD 1989 Karachi 499) in support of his contentions. Learned counsel Mr. Mumtaz Ahmad Sheikh for respondents has argued that the respondents' predecessor-in-interest filed DW Application No. 483/70 Ex. 9/A in the Court of Small Cause at Karachi which was dismissed as withdrawn on 2-4-1971, thereafter ejectment case No. 1094/71 Ex. 5/G was filed in which the appellants' predecessor-in-interest deceased Mushtaq Ahmad filed written-statement Ex. 5/H and the said ejectment case was dismissed for default as per Ex. 5/J on 5-7-1980 and thereafter present suit was filed in which appellants filed written-statement The deceased Mushtaq Ahmad and the present appellants in DW proceedings, in written-statement Ex. 5/H filed in ejectment application as well as in the written statement filed in the suit, denied being tenant of the respondents or their predecessor-in-interest and claimed the premises in suit as owner thereof on the basis of adverse possession over the same to the knowledge of the respondents. Learned counsel for the respondent has argued that no where in the proceedings in the courts below, the appellants took up the plea that either their predecessor-in-interest or they themselves, were the tenants of the respondents or their predecessor-in-interest therefore in this second appeal, the appellants could not be permitted to agitate the said plea of estoppel on the ground that Aftab Ahmad in his deposition Ex. 5 and stated that deceased Mushtaq Ahmad and tenant in respect of premises in question. He has placed reliance upon Muhammad Aslam and another vs. Imam Bakhsh and two others (1980) SCMR 879), and Atta Hussain Khan vs. Muhammad Siddique Khan and others (PLD 1979 SC 965) in support of his contentions. Section 100 of Code of Civil Procedure runs :- "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely: (a) the decision being a contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits." This second civil appeal was admitted on the only specific ground of estoppel as per order dated 9-4-1995 of this Court. It has been admitted before me that DW application filed by Chaudhary Muhammad Umer the predecessor-in-interest of the respondents was dismissed as withdrawn as Mushtaq Ahmad Khan the appellants predecessor-in-interest had denied to be tenant of the predecessor-in-interest of the respondents. It has also been admitted before me that the ejectment application No. 1094/71 was also get dismissed in default as the appellants' predecessor-in-interest denied to be tenant of the respondents or their predecessor-in-interest and claimed to be owner on the basis of adverse possession. It has also been noted before no that the present appellants in their written-statement filed in the suit claimed to be owner of the premises in dispute on the basic of adverse possession and no where in the written statement the appellants admitted to be tenant of the respondents therefore no issue about the relationship of tenancy between the parties was struck off in the suit. There is nothing in the deposition of Aftab Ahmad Ex. 5 which could estep the respondents within the meaning of Article 114 of Qanun-e-Shahadat from filing their suit for possession against the appellants as the said Aftab Ahmad clearly stated that the appellants' predecessor-in-interest as well as the appellants themselves claimed to be owner of the portion in their possession and applied for its transfer and also filed Revision No. SCK-4/1970 before the Settlement Authorities but it was dismissed as per Ex. 5/F. It has also been stated in the plaint that the appellants and their predecessor-in-interest have denied to be tenant in the previous proceeding therefore present suit for the premises in dispute was being filed against the appellants. In the stated circumstances, the appellants cannot be permitted to approbate and reprobate considering that new in second appeal the appellants have stated that they were tenants of the respondents in respect of the premises in question therefore the respondents were estopped to sue them as un­ authorised occupant whereas in the earlier proceedings appellants and their predecessor-in-interest had denied to be tenant of the respondents. The appellants cannot be permitted in second appeal to take-up a new plea of estoppel against the respondents only on the basis of statement made in the deposition which too would not come in the way of the respondents from filing the present suit. The said plea being a new plea cannot be permitted to be agitated in the second appeal keeping in view the decision reported in the case ofAtta Hussain Khan vs. Muhammad Siddique Khan and others (PLD 1979 SC 965) wherein Supreme Court held that where the plea was neither raised by the defendant in his written-statement nor was fully justified in not entertaining objection necessitating enquiry into dispute question of acts and should be deemed to have been waived. In Muhammad Aslam and Another vs. Imam Bakhsh and two others (1980) SCMR 879) case it was held that plea of estoppel being plea of fact cannot be taken note of by the High Court in second appeal. In the case of Gulfam vs. Mi Muhammad & others (PLD 1989 Karachi 499) learned Judge in Chamber has held :- v "Doctrine of estoppel is an equitable doctrine, a rule of exclusion which implies that if a person had by act or omission altered his position, he would be estopped and be precluded or debarred from denying it." This case (PLD 1989 Karachi 499) cited by the learned counsel for the appellants on the contrary supports the case of respondents as in the instant case the appellants have denied to be tenant of the respondents therefore appellants could not be permitted by doctrine of estoppel to claim to be tenant of the respondents when in the earlier proceedings into the level of first appellate court have denied to be tenant and had claimed to be owner on the basis of adverse possession. Reference is made to Mst, Zainab and others vs. Fazal Dad and others (PLD 1966 (W.P.) Lahore 1050) wherein learned Judge in Chamber at page 1054(D) observed :- ......... The defendants cannot be permitted to approbate and reprobate. The plaintiffs withdrew the suits on the basis of the plea raised by the defendants. The defendants are estopped in law from subsequently taking a position contrary to the position they had taken up earlier. A reference may be made to Desai and others v. Channappa Mahalingappa and others (AIR 1934 Bombay 329) where it was held that "a party cannot be allowed to say at one time that the question between him and the opposite party as to adverse possession is not necessary to be decided in the suit and thereby induce the Court to refrain from deciding it and at another time say that because that question was not decided between him and the other party, the letter's claim is barred by adverse possession which is the very issue which he objected to be decided. Even if he is not estopped the principle of approbation and reprobation will apply and he cannot be allowed to take this stand-point". This was also the view taken in Thana Earn and another v. Himiu Ramand another (AIR 1935 Lahore 96) and their Lordships observed as, "Litigants cannot be allowed to blow hot and cold. Hence when a person who got execution Court to hold that ascertain decree was a declaratory one cannot subsequently take the plea that the decree is one for possession and is capable of execution". Mr. M. Monir (the ex-Chief Justice of Pakistan) in the 4th Edition of Principles and Digest of the Law of Evidence has expressed his view at page 746-747 in the following words:- "The basic principles underlying the doctrine of estoppel by election is that where A, dealing with B, is confronted with two alternative and mutually exclusive courses of action in relation to such dealing, between which he may make his election, and A so conducts himself as reasonably to induce B to believe that he is intending definitely to adopt the one course and definitely to reject or relinquish the other, and in such belief B alters his position to his detriment, A is precluded, as against B, from afterwards resorting to the course which he has thus deliberately declared his intention of rejecting." The general rule of estoppel underlying such class of cases is staled in Bigelow on Estoppel, Sixth Edition in the following words, "it may be laid down as a broad proposition that one who, without mistake induced by the opposite-party, has taken a particular position deliberately in the course of a litigation must act consistently with it; one cannot play fast and loose." It was held in Mahadeo Singh v. Pudai Singh (ILR 5 Lucknow 645) "that the defendant was estopped from raising that plea now and thct it was too late for the defendant to deny the truth of his plea raised in the revenue Court when the plea had compelled the plaintiff to put his plaint before the civil Court for adjudication". The view of the Court in Saira Bibi v. Chandra Pal Singh (AIK 1928 Oudh 503) was, "when an appeal is rightly filed in a revenue Court but it is dismissed on the respondent's objection to the jurisdiction of that Court, and the appeal in subsequently filed in a civil Court, the respondent will not be heard to object to the jurisdiction of the civil Court". In Mathra Das v. Kanshi Ram <120 1C 594) the Court held that "a party who gets an application for revision dismissed on the ground that the order sought to be revised is appealable is estopped from contending, when an appeal is preferred by bis opponent, that no appeal lies". It was held in Hamanta Kumari Devi v. Parasanna Kumar Datta (ILR 56 Cal. 584), "It is hardly consonant with justice that the defendants, who took up in the proceedings under section 105 the position that the applications did not lie, should be allowed to turn round and say that the said applications were entertainable in law, and as such operate as a bar to the suits. The present suits may rightly be said to have arisen out of the result of those applications. It is well settled that a parly litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate, to the detriment of his opponent.." The principle enunciated in this case is applicable to the facts of this case." The second appeal is permissible under Section 100 CPC when; (i) the decision is contrary to law; (ii) the decision is contrary to usage having the force of law; (iii) there has been failure of the courts below to determine some material issue of law and (iv) there has been failure to determine material issue of usage having force of law. The appellants' learned counsel has not been able to point out any ground whereby his appeal could fall within the mischief of Section 100 of Code of Civil Procedure. Nothing has been shown as to how the decision given by the courts below is contrary to law or any usage having force of law or there has been failure of courts below to determine issue of tew or issue of usage. The courts below have properly appreciated evidence on record and no illegality warranting interference has been pointed out in this second appeal, Consequently, appeal has no merits which is hereby dismissed. (K.K.F.) Appeal dismissed.

PLJ 1996 Karachi 597 PLJ 1996 Karachi 597 Present: G.H. MALIK, J. MUHAMMAD SALEEM QURESHI-Appellant versus M. MOHSIN BUTT—Hespondent F.R.A. No. 340 of 1993 dismissed on 24.9.1995. Sindh Rented Premise! Ordinance, 1979- —-S. 15-Tenant-Ejectment of-Appeal against-Default and Personal bonafide need-Grounds of-There was default in payment of rent from April, 1988, till filing of a case which was fully established-Contention that respondent had other equally suitable premises available for his purpose and that he was not entitled to obtain vacant possession for use of a limited company which is a distinct person in law-It was upto respondent to choose a place where he wishes to conduct his business and, secondly, because "Company" for which respondent required premises in question is infact a sole proprietary concern—Appeal dismissed. [P. 601] A Mr. M. Ahtan Shaikh, Advocate for Appellant. Mr. HA. Rehmani, Advocate for Respondent Date of hearing: 24.9.1995. judgment This is an appeal under Section 21 of the Sindh Rented Premises Ordinance, 1979, impugning the order dated 20th July, 1993 passed by Vth Senior Civil Judge and Rent Controller Karachi (South) in Rent Case No. 50/91. The respondent/landlord filed an application under Section 15 of the Ordinance for ejectment of the appellant/tenant on the ground that the appellant failed to pay rent at the rate of Rs. 425/- per month from 1st May, 1988, till 30th November, 1990, and also failed to pay water charges amounting to Rs. 2297/- and fire and conservancy charges amounting to Rs. 280/~; and further on the ground that the respondent landlord required the premises for use in occupation of his proprietory concern, M/s. Trade Corporation. The appellant-tenant, in his written statement, took the plea that the rent of Rs. 425/- per month was inclusive of all charges and that he was, therefore, not liable to pay water, fire and conservancy charges; that he tendered rent of Rs. 425/- per month to the respondent-landlord who refused to accept the same and demanded rent at the rate of Rs. 1000/- per month; that under the circumstances, the appellant had no choice but to deposit rent in Court which he did under an order passed on the 30th May, 1988, in Misc.. R.C. No. 803/86. It was further averred that without prejudice to the contention that he was not liable to pay the water, fire and conservancy charges he tendered amount of those charges to the respondent who refused to accept the same and, therefore, that amount was sent by money order. With regard to requirements of the premises for personal use of the respondent, it was denied that the respondent required the same in good faith; and that the respondent was in possession of other premises in the same locality. The appellant and the respondent examined themselves in support of their respective cases and the learned Rent Controller held that the appellant was liable to be ejected both on the ground of default and on the ground of personal requirement. Mr. Muhammad Ahsan Shaikh, the learned counsel for the Appellant submits that the Appellant tendered rent at the rate of Rs. 425/- per month to the respondent who refused to accept the same and demanded rent at the rate of Rs. 1000/- per month; and that, consequently, the appellant sent the rent by money order and, upon refusal of the respondent, to accept it, deposited the rent with the Rent Controller under an order passed by him in Misc. R.C. No. 803/86. He submits, further that the respondent has earlier filed R.C. No. 1599/88 for eviction of the Appellant on the ground, inter alia, of non-payment of rent but did not press that ground in view of the fact that the rent had been deposited with the Rent Controller as mentioned above; and that, therefore the issue of default is resjudicata. ith regard to water, conservancy and fire charges, Mr. Shaikh submits that the rent of Rs. 425/- per month was inclusive of such charges and that the Appellant was, therefore, not liable to pay the same; but that, nevertheless, in order to keep good relations with the respondent, the appellant tendered the amount of such charges to the Appellant and, on his refusal to accept the same, deposited it in court. On the question of personal requirement, the only submission of Mr. Shaikh is that the Appellant was not entitled to obtain possession of the premises for use of his limited company which is, in law, a separate legal entity. Mr. HA Rehmani, the learned counsel for the respondent, points out that there is no plea in the written statement or the affidavit in evidence of the appellant that the rent was tendered by money order; and that although a money order coupon was stated to have been annexed to the affidavit, it was, in fact, not annexed. Mr. Shaikh concedes that is so. It would be convenient, first, to dispose of the plea of the appellant that he was not liable to pay water, conservancy and fire charges but tendered payment thereof and subsequently, deposited the same in Court in order to keep good relations with the respondent The plea is not worthy of any credit for if the appellant considered that he was not liable to pay those charges, there really was no reason for him to tender payment thereof because, according to bis case, the respondent wanted nothing less than Rs. l.OOO/- per month for rent and the appellant refused to comply. It is, therefore, not clear how the appellant expected to maintain good relations with the respondent by paying him the amount of those charges, the conclusion is, therefore, inescapable that the appellant was liable to pay water, fire and conservancy charges. The contention with regard to tender of Rs. 425/- per month and of water, fire and conservancy charges may now be examined. As to the rent of Rs. 425/- per month, the appellant stated, in his affidavit in evidence that he sent the rent for April, 1988, to the respondent who refused to accept it; and that he, the appellant, then approached the respondent personally and offered to pay the rent for April, 1988, but the respondent refused to accept it. This assertion has been denied by the respondent who has deposed that no tender was made by the appellant. There is, therefore, the word of the appellant against the word of the respondent. The evidence of the appellant on this point in no more than a bare assertion which is not supported by any evidence of the time, the place mBiii I r the circumstances at or in which the tender was made and refused. The version of the appellant, therefore, cannot be believed. With regard to fire, water and conservancy charges, there is, again a bare assertion that such charges were tendered. That assertion has been denied by the respondent and, in any case, not supported by any evidence as to the time, the place or the circumstances at or in which the tender was made. The appellant's version in this regard is, therefore, also not worthy of credit. It is, thus, dear that the appellant did not tender either the rent at Rs. 425/- per month or the fire, water and conservancy charges. That being so, it was not open to him to send the rent by money order or to deposit the same with the Rent Controller. It was, of course, not the case of the appellant that the rent of Rs. 425/- per month was sent by money order and his assertion that the amount of fire, water and conservancy charges was sent by money order was not proved because no money order coupon was produced, the question, therefore, is whether payment of rent into court can be considered valid payment of rent. Section 10 of the Sindh Rented Premises Ordinance, 1979, provides, by sub-section (2) thereof, that the rent shall, as far as may be, be paid to the landlord; and it is provided by sub-section (3) of section 10 that where a landlord has refused to accept the rent, it may be sent to him by postal money order or be deposited with a Controller within whose jurisdiction the premises is situated. A tenant is, therefore, entitled to sent the rent by money order or to deposit the same with a Controller only after the landlord refuses to accept it In the present case, the appellant did not tender the rent to the respondent. There was, therefore, no question of refusal. It follows that the deposit of rent with the Controller in a Misc. Rent Case was not a valid payment of rent. Besides, the only amount deposited in Misc. R.C. 803/86 was the amount of rent at Rs. 425/- per month, and the amount of fire, water and conservancy charges was deposited only in pursuance of the tentative order passed under Section 16 of the Ordinance. It appears to me to be clear that such deposit, in pursuance of an order under section 16 is not the deposit contemplated by sub-section (3) of section 10 of the Ordinance. Mr. Shaikh, however, insists that the amount of rent at Rs. 425/- per month is being deposited in Misc. Rent Case No. 803/86. That may or may not be so but, as stated above, such deposit is of no avail to the appellant and, in nay case, no evidence of such deposit, as prescribed by sub-section (4) of section 10 of the Ordinance was produced before the Controller. Sub­ section (4) prescribes that receipt of the Controller for the rent deposited with him "shjll be produced and accepted in proof of payment." Therefore, even if the appellant had tendered payment of rent to the respondent and the respondent had refused to accept it and, consequently, the rent had been deposited with the Controller, the appellant was obliged to produce receipts of the Controller. Admittedly, he did not do so. The submission that the question of default in payment of rent is resjudicata in the circumstances mentioned above is without any substance because the question was neither heard nor decided by the controller in R.C. No. 1599/88. Mr. Shaikh then contends that the fact of the rent having been deposited in Misc. R.C. No. 803/86 was admitted by the respondent and it was, therefore, not open to him to contend that the rent had not been deposited. The argument is misconceived because even if the fact that the respondent did not press the allegation of default in R.C. No. 1599/88 can be construed as an admission on the part of the respondent, such admission can relate only to the facts of that case; and the issue before the Controller there was default in payment of rent from April, 1988, till the filing of that case. It cannot relate to the alleged deposit after that time. In the circumstances, default on the part of the appellant, as alleged, was fully established. On the question of personal requirement, Mr. Shaikh submitted, firstly, that the respondent had other equally suitable premises available for his purpose and, secondly, that he was not entitled to obtain vacant possession for use of a limited company which is a distinct person in law. The argument in entirely misconceived because, as Mr. Shaikh concedes, it was upto the respondent to choose a place where he wishes to conduct bis business and, secondly, because the "company" for which the respondent required the premises in question is in fact a sole proprietory concern of the appellant. Mr. Shaikh, however, relies on the statement of the respondent in cross-examination where he has accepted the suggestion that he had formed a "company". It is true that the suggestion so made was accepted by the respondent but it is clear that the word "company" has been loosely used and there is no evidence that the so-called company was a company incorporated under the Companies Ordinance or under any other law and thus had distinct legal personality. That being so, there is no discrepancy in the finding that the respondent requires the premises for his personal use. In the circumstances, the appeal is dismissed. (K.K.F.) Appeal dismissed.

PLJ 1996 Karachi 607 (DB) PLJ 1996 Karachi 607 (DB) [Circuit Court Hyderabad] Present: SHAH NAWAZ AWAN AND RASHEED A. RAZVI, JJ. MUHAMMAD SHARIF MEMON and 2 others-Petitioners versus GOVT. OF SINDH THROUGH CHIEF SECRETARY, SINDH SECRETARIAT, KARACHI and 2 others-Respondents Const. Petition No. D-668/95, dismissed on 26.2.1996. (i) Constitution of Pakistan, 1973-- —-Art. 199-read with Sindh Civil Servants Act, 1973 S. 24 & 8, Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, Art. 25 of Constitution of Pakistan 1973, Sindh Services Tribunal (Procedure) Rules, 1974-Civil Servant-Promotion out of turn-Challenge tp- Whether petitioners are aggrieved parties, if so, whether remedy available to them is Constitutional petition or Appeal before Sindh Services Tribunal-Questions of-Questions involved could not be decided without reference to terms of services-This involves consideration of notification, rules relating to appointment and promotion as well as interpretation of section 24 of Sindh Civil Servants Act-'As held in Muhammad Anis and others v. Abdul Haseen and others (PLD 1994 SC 539) such like cases/matter falls within exclusive jurisdiction of Services Tribunal-In view of above authority and for reason that petitioners are not "aggrieved parties", High Court is not inclined to interfere with impugned Notification—Petition dismissed in limine. [Pp. 608 & 611] A, D.EF PLD 1994 SC 345, SCMR 1129, PLD 1994 SC 539; PLD 1995 SC 58) rel. (ii) Service Matter -—It is now well settled that dispute of seniority and promotion can be maintained before Services Tribunal. [P. 610]B (iii) Sindh Service Tribunal (Proefcdure) Rules, 1974- —Ss., 5, 17, 18 & 20-Afore mentioned sections are complete answer to procedure for recording evidence before Services Tribunal. [P. 610] C Mr. Abdullah Khatri^ Advocate for Petitioner. Mr. Abdul LatifAnsari, Asstt. A.G. for Respondent No. 1&2. Mr. Anwar Zaheer Jamali, Advocate for Respondent No. 3. Date of hearing: 26..1996. order Rasheed A. Razvi, J.--The petitioners are presently serving as District Food Controller with the respondents No. 1 and 2. Previously, they all were serving as Ward Rationing Officer, but subsequently in the years 1989, 1993 and 1995 respectively, they were promoted to the post of District Food Controllers. They are aggrieved by the Notification dated 22.8.1995 issued by the Government of Sindh through which the respondent No. 3, namely, Syed Mahmood Shah was granted seniority in the rank of Ward Rationing Officer (B-16) by virtue of powers conferred on the Provincial Government vide section 4 of the Sindh Civil Servants Act, 1973. Following are the contents of the said Notification:- "No. SOF (V)l (3'7)/75:-In exercise of the powers conferred under section-4 of the Sindh Civil Servants Act, 1973, the Government of Sind are pleased to allow seniority in the rest of Ward Rationing Officer (B-16) to Syed Mahmood Shah with effect from 4.3.1975. Accordingly, he will rank junior to Mr. Gulrez (illegible) and senior to Mr. Inayat Ali presently working as Assistant Directors food." 2. As far as facts of the petition are concerned, the same have been dealt in detail in the memo of petition starting from the initial appointment of the respondent No. 3 as Ward Rationing Officer (B-16) in the year 1975 till issuance of the impugned notification by the respondent No. 1. In our ' view, these facts are not relevant for the decision of this petition as the question involved is whether the petitioners are aggrieved parties, if so, whether the remedy available to them is this Constitutional Petition or appeal before th,e Sindh Services Tribunal. We have heard Mr. Abdullah Khatri, Advocate for the petitioners, Mr. Abdul Latif Ansari, Assistant Advocate General for respondents No. 1 and 2 and Mr. Anwar Zaheer Jamali, Advocate for respondent No. 3. 3. On the question whether the petitioners are aggrieved parties, it was argued by Mr. Abdullah Khatri that in the new seniority list to be prepared in pursuance of Rule 9(1) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, the petitioners are expected to be adversely effected. It was also argued that the question of seniority does not fall within the terms and conditions of service and, therefore, this Constitutional Petition is maintainable. He has also argued that since fundamental rights ef petitioners are violated by virtue of impugned Notification as such they can seek enforcement of their fundamental rights through this Constitutional Petition. In support, he has referred to Article 25 of the Constitution, 1973. In support of these contentions, he has relied on the following reported judgments:- 1. Haji Ghulam Mustafa v. The Secretary to Government, Punjab, Lahore and others (1973 PLC 308). 2. Ch. Abdul Ghafoor and others v. Collector of Central Excise and Land Customs, Lahore and others (PLD 1991 SC 58). 3. Saghir Ahmad v. Federation of Pakistan and 3 others (PLD 1976 Lahore 87) (Overruled in the case of Muhammad Anis and others u. Abdul Haseeb and others PLD 1994 SC 539). 4. Sahibzada Fariduddin Ahmad v. The Province of Punjab and another (PLD 1976 Lahore 1310). 5. Raja Muhammad Sadiq v. Water and Power Development Authority (PLD 1978 Lahore 738). 6. Mian Amanul Mulk v. N. W.F.P. (PLD 1981 Pesh. 1). 7. Mujeebullah Aijaz v. Director-General, Telephone and Telegraph and others (PLD 1980 Quetta 58). 8. Muttaqi Hussain Rizv'i v. Province of Sindh and another (PLD 1978 Karachi 703) (Overruled in the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539) and 9. LA. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041). 4. Mr. Ahdul Latif Ansari, Assistant Advocate General, Sindh appearing for the respondents No. 1 and 2 has raised objection on the maintainability of this petition, on the grounds, firstly that the petitioners are not the aggrieved parties and secondly, that this petition is barred in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. He has also argued that this petition is premature as the cause of ~tion, if any, will accrue to the petitioners after preparation of the seniority t. Mr. Anwar Zaheer Jamah', Advocate for respondent No. 3 has also raised jection on the maintainability of this petition by endorsing he arguments Jthe learned Assistant Advocate General, Sindh and has referred to section of the Sindh Civil Servants Act, 1973. He has also stated that the (itioners are Grade-17 officers while the respondent No. 3 was granted iority in Grade-16. Therefore, such Notification shall not adversely affect seniority of the petitioners who are all in Grade-17. He has also referred ection 4 of the Sindh Civil Servants Act, 1975 and argued that this provision of law has conferred power on the Government of Sindh to pass any order notwithstanding anything contained in the Act of 1973 or rules framed thereunder. 5. Through this petition, the petitioners are not only seeking reversion of the respondent No. 3 but in feet are challenging the seniority list to be prepared by the respondent No. 2. The question of their seniority over

the respondent No. 3 falls within the definition of terms and conditions. It is r now well-settled that the ispute of seniority and promotion can be maintained before the Services Tribunal. In the case ofSyed Badrudduja and 10 others v. Government ofN.W.F.P. and 11 others (PLD 1994 SC 345), it was held that the question relating to determination of eligibility of a civil servant to promotion is not outside the jurisdiction of the Service Tribunal constituted under Article 212 of the Constitution and that such question could not be creditor gone into by a Civil Court. In this reported case, the rule laid down in the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1921 SCMR 1129) was followed. For further reference, see the following cases:- 1. Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). 2. Ch. Abdul Ghafoor and others v. Collector of Central Excise and Land Customs, Lahore and others (PLD 1995 SC 58). 6. It was also argued by Mr. Abdul Latif Ansari, learned Assistant Advocate General, Sindh that the impugned Notification was passed by the Government of Sindh in furtherance of section 4 of the Sindh Civil Servants ct, 1973. According to the learned Counsel, this provision of law gives unfettered and unabridged power to the Sindh Government to deal with the case of any civil servant in any manner subject to the proviso that the case of a civil servant shall not be dealt in such a manner less favourable to him than as provided by the Sindh Civil Servants Act, 1973. We would not like to dilate upon this proposition of law at this stage but would like to observe that there is one rider to section 4 of the Act, 1973 which provides that such powers shall be exercised by the Sindh Government if it appear to be "just and equitable". In the present case, the question whether the impugned Notification appears to be just and equitable, in our view, cannot be decided in this petition as it may require recording of some evidence of which the proper forum would be the Sindh Services Tribunal. Here, we would also je like to refer section 5 of The Sindh Services Tribunal Act, 19763 as well as 11 ' Rules 17, 18 and 20 of the Sindh Services Tribunal (Procedure) Rules, 1974 be which are complete answer to the procedure for recording evidence beforflot the Service Tribunal. this 7. Learned Counsel for the petitioners has cited several reporte nce cases but none of them is applicable in the circumstances of the present cast- 716 " The rule laid down by the Hon'ble Supreme Court in the case Anis and others v. Abdul Haseen and others (PLD 1994 SC 539) is fully applicable in the circumstances of the instant case. In this reported case, several Customs Officers were promoted through a Notification issued by the then Chief Martial Law Administrator late General Muhammad Ziaul Haq against which those persons who were affected by such Notification filed Constitutional Petition before this Court. A Division Bench of this Court accepted the petition and set aside the Notification through which late General Ziaul Haq, the then Chief Martial Law Administrator, promoted the Customs Officers, In appeal before the Supreme Court, order of this court was set aside and it was held that the matter a falls within the purview of Services Tribunal. Relevant portion of the reported judgment is as follows: - "15. We are, therefore, inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade-18 as, Assistant Collectors alongwith the private appellants. The above question could not have been decided without reference to the terms on which the private respondents .were given higher grade, namely, Grade-17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Haq, which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 3 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it...." 8. In our view, even in this instant case, the question involved could not be decided without reference to the terms of services on which the petitioners and the respondent No. 3 services are involved. This also involves consideration of the above notification, rules relating to the appointment and promotion as well as interpretation of section 24 of the Sindh Civil Servants Act. As held in the above quoted case, it falls within the exclusive jurisdiction of the Services Tribunal. 9. In view of the above authority and for the reason that the petitioners are not aggrieved parties, we are not inclined to interfere with the impugned Notification. As such, this petition is dismissed in limine. However, the petitioners, if so advised, shall be entitled to resort to other remedy available to them as provided under the Sindh Services Tribunal Act, 1973. Consequently, M.A. No. 140/95 has become infructuous which is also hereby dismissed. (K.K.F.) Petition dismissed in limine.

PLJ 1996 Karachi 612 PLJ 1996 Karachi 612 Present: SHAFI MUHAMMADI, J. Malik MUHAMMAD NAWAZ-Appellant versus Hqji MUHAMMAD HAYAT-Respondent 1st Rent Appeal No. 142 of 1986, allowed on 6.3.1996. (i) Sind Rented Premises Ordinance, 1979- —S. 15~Tenant-Ejectment of--Challenge to-Whether order under section 16(1) could be made by Rent Controller without holding an inquiry-­ Rationale behind this Section-Most of landlords move applications u/s 16 of Ordinance by claiming much more higher rent than actual rent and Rent Controllers usually pass routine order by directing tenant to deposit arrears of rent due within stipulated period without holding any inquiry which is requirement of section 16 of Ordinance~As the consequences of non-compliance of such orders are always very harming i.e. striking of defence—Holding of summary inquiry is obligatory when there is dispute between parties on rate of rent-In all such cases if learned Ren Controller passes order, as has been usually observed, that tenant should deposit rent at rate demanded by landlord, but landlord should withdraw only that rent which is admitted by tenant, then such order may not be proper if judged on anvil of equity because firstly it put tenant under burden of that heavy rent which he was not bound to pay and secondly tenant is put under mental torture that if he failed to comply with order, his defence would be struck off-Held: All such defective orders passed U/S. 16(1) of Ordinance which do not reflect existence of any inquiry, would be unlawful-Held further: Although no penalty has been mentioned against landlord if he violates order passed u/s. 16(3) of Ordinance, yet his conduct would be fully exposed whether he was nterested to receive rent at proper time or he was interested only to knock out tenant technically who had otherwise best case on merits. .. [Pp. 615 & 616] A, B, C & D (ii) Sind Rented Premises Ordinance, 1979-- —-Ss. 10 & 15(2)-Tenancy under agreement-Mode of payment-Payment of rent after expiry of period fixed by mutual agreement as used in Sec. 15(2) would mean period fixed by that agreement, which is executed U/S 15 of Ordinance-This period may be weekly, monthly or yearly-Default in such cases would be counted after expiry of that period~In absence of any date fixed in this behalf by mutual agreement then, under section 10 of Ordinance, rent has to be paid not later than 10th of month next following month for which it is due-In such cases default has to be computed according to spirit of section-Held: Both those modes of payment of rent would be applicable in cases when tenancy between parties started after promulgation of Ordinance, 1979. [P. 622] E (iii) Sind Rented Premises Ordinance, 1979- —Ss. 5 & 10--Tenancy in absence of agreement-Mode of payment and computation of default-In absence of any mutual agreement, tenancy would be covered by provisions to sections 5 and 10 of Ordinance-In all those cases, if there is no existence of any written agreement but tenancy is being carried on in accordance to any verbal agreement, then Rent Controller is first bound to determine mode of payment i.e. daily, weekly, monthly, yearly or at the will of parties-Held: It is only after determining mode of payment of rent, Rent Controller would decide as to whether default has been committed or not. [P. 622] F <iv) Sind Rented Premises Ordinance, 1979- —S. 10(4)--Payment of rent-Burden of proving payment-If any landlord does not issue or acknowledge receipt in writing in cases of tenancy started after promulgation of Ordinance, then burden would be on tenants to prove payment of rent because it is choice of tenant to take risk of paying rent without getting receipt from landlord-In such cases where any landlord takes plea that rent has not been paid by tenant then sub­ section (4) of section 10 leave no ambiguity that burden of proving payment of rent shall be discharged by tenant,' by producing written acknowledgment, postal money order, receipt or receipts of Controller as case may be-Held: Tenant must deposit rent with Controller if landlord appears not to leave any proof of rent. ' [P. 623] G & H (v) Sind Rented Premises Ordinance, 1979- —Ss. 5 & 10-Ejectment of tenant-Default in payment of rent-Ground for- Challenge to-Statement of landlord cannot be believed regarding default particularly when landlord did not produce any record to show in shape of receipt or register about receipt of payment of rent or any other proof to show that he had issued receipts as claimed by him-Verbal statement of landlord could not be believed on basis of technicalities unless landlord had produced some evidence regarding his conduct to show it to be justified for remaining silent for long time and regarding mode of payment of rent. [Pp. 627 to 630] I, J, K & L. Mr. Fcux Muhammad Qureshi, Advocate for Appellants. Mr. Abdul Sattar Sheikh, Advocate for Respondent Date of hearing: 17.11.1994. judgment This judgment will govern the disposal of FRAs No. 142/86 to 150/86. These nUie appeals were filed by nine different tenants namely (1) Malik Muhammad Nawaz, (ii) Muhammad Yousuf, (iii) Ghulam Hussain (iv) Muhammad Nawaz (v) Muhammad Hamir (vi) Ali Dad (vii) Muhammad Ahmed (viii) Muhammad Eyas and (ix) Hamid against their landlord namely Haji Muhammad Hayat who is the owner of a building occupied by the tenants. The said building is known as "Hayat Compound" bearing C.S. Nos. 2/2052-2052/1, Allahabad Chand Village, Hyderabad. This property had been purchased by the present landlord in 1965 from one Abdul Qadir. It appears that present tenants were living in that compound before the said property was purchased by Haji Muhammad Hayat (hereinafter referred to as "the Landlord." 2. Main grounds mentioned in all the applications filed under Section 15 of Sindh Rented Premises Ordinance 1979 (hereinafter referred to as the Ordinance) are: (i) default in payment of monthly rent and (ii) reconstruction or creation of new building at the site. The learned Rent Controller framed the following issues under section 19(5) of the Ordinance; (i) whether the opponent has committed default as alleged by the applicant? (ii) whether the case premises is required by the applicant in good faith and sub-section 2(VI) of Section 15 of S.R.P. Ordinance 1979? (iii) What should the order be? As issues number (i) and (ii) were answered in affirmative in all the Rent Applications, hence, in view of the findings, the learned Rent Controller allowed these applications and all the appellant/opponents were directed to handover the vacant physical possession of the case premises to the respondent/applicant within two months. 3. The appellant in each F.R.A. and the respondent had examined themselves only before the learned Rent Controller instead of producing any other witness in support of their case although they had taken several points in their respective stand and for which it was necessary for both of the parties to prove those points. 4. It is also necessary to point out that the appellant had filed applications before the learned Rent Controller under Section 151 C.P.C. with a prayer that the Hon'ble Court (means the Rent Controller) he pleased to direct the applicant to withdraw the arrears of rent from the Court deposited by them. Order passed by the learned Rent Controller on these applications reads as follows: "Application stands disposed of as Rent Orders has already been passed." I could not understand the purpose of moving such applications. Similarly the order passed by the learned Rent Controller neither radiates this purpose of those applications nor it reflects any logic behind this order. Although no directions were issued, to withdraw or not to withdraw the rent, but the record of the cases reflects that rent was not withdrawn because there is no application on the record to show withdrawal of rent In this connection, it is necessary to point out that most of the landlords move applications under section 16 of the Ordinance by claiming much more higher rent than the actual rent and the learned Rent Controllers also usually pass routine order by directing the said tenant to deposit arrears of the rent due within specific period without holding any inquiry which is the requirement of section 16 of the Ordinance. Any such order which does not reflect this aspect of inquiry, in my view, is the most defective order. As the consequences of non-compliance of such orders are always very harming Le. striking of the defence, therefore I am of the view that holding summary inquiry is obligatory when there is dispute between the parties on the rate of rent In all such cases if the learned Rent Controller passes an order, as has been usually observed, that the tenant should deposit the rent at the rate demanded by the landlord but the landlord shall withdraw only that rent which is admitted by the tenant, then such an order may not be proper if judged on the anvil of equity because firstly it puts the tenant under the burden of that heavy rent which he was not bound to pay and secondly the said tenant is put under a mental torture that if he failed to comply with the said order, his defence would be struck off. At the same time if the learned Rent Controller passes an order in accordance to the statement of the tenant, it may deprive the landlord from actual rent due to that order. On account of these reasons, I have no hesitation to hold that striking off defence on the bases all such defective orders passed under section 16(1) of the Ordinance, which do not reflect the existence of any inquiry, would be unlawful particularly when this rent is increasing that the landlord, after getting such an order passed, do not proceed with the case to get it decided on merits but wait and see till the tenant falls in the clutches of section 16(2) of the Ordinance. It is, therefore, necessary, that the learned Rent Controller should not adjourn the matter by now and then after passing an order under section 16(1) of the Ordinance at the request of the landlord on account of the worst consequences to be faced by the tenant. Perhaps this must be the apprehension in the minds of the tenants due to which they moved applications under section Iffil Cr.P.C. which they would file under section 16(3) of the Ordinance. I am also of the view that if an application under section 16(3) of the Ordinance is moved by any of the party and particularly by the tenant then the learned Rent Controller must pass some speaking order, and not an order as was passed in the cases in hand, on those applications in accordance to the spirit of that section. Although no penalty has been mentioned against the landlord if he violates an order passed under section 16(3) of the Ordinance yet his conduct would be fully exposed at least to the extent whether he was interested to receive rent at proper time or he was interested only to knock out the tenant technically who had, otherwise, the best case on merits. In the light of this discussion, the order passed on the applications by the learned Rent Controller in the cases in hand does not make any sense and it clearly shows that the learned Rent Controller did not take into consideration the real spirit of section 16(3) of the Ordinance at the time of passing such an order. 5. Notwithstanding the order passed by the learned Rent Controller, as discussed in the preceding paragraph, the order passed on the issues of default and re-construction in the appeals in hand requires deep analyses particularly on account of the reasons that most of the learned Rent Controllers have adopted a similar path while deciding applications under section 15 of the Ordinance as was adopted by the learned Rent Controller in the cases out of which the present appeals have arisen. Such path does not lead to the destination of the purpose which is embodied in the preamble of the Sind Rented Premises Ordinance and which reflects that the Ordinance was promulgated to get the following objects: (i) to make effective provisions for regulation of relations between landlords and tenants; and (ii) to protect the interests of the landlord and the tenants in respect of the rented premises. A deep analyses of the Ordinance would show that its different provisions are inter-connected. It is an established principles that at the time of deciding any point in issue, all relevant provisions of a statute must be taken into consideration. Support in this connection can be sought from a case reported as Niaz Muhammad v. Fazal Raqib in PLD 1974 S.C. 134 wherein it was observed: "It is true that no universal rule can be laid down for the construction of statutes as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of the Courts to try to get at the real intention of the Legislature., by carefully attending to the whole scope of the statute to be construed." It is also necessary to point out that as the court of the learned Rent Controller is not a court of Civil Judge in its strict sense, therefore, order of the learned Controller must be based on the principles of natural justice to protect the interests of landlords and tenants. In this connection any sternness shown by the learned Rent Controller to protect those interests and to regulate their relations would be most appreciable if any of the parties violates the orders of the Rent Controller. For example if any landlord has contravened the provision of sub-section (5) of Section 11 of the Ordinance, the law permits the Rent Controller to punish the landlord with simple imprisonment for a period not exceeding six months or with both. If any Rent Controller feels, in the light of the circumstances of each case, that the landlord is uncurable then he must not hesitate to inject full dose of six months simple imprisonment with exemplary fine, the limits of which has not been described in the Ordinance, to such a landlord to make him an example for others. 6. Before touching the merits of the appeals in hand, it is necessary to point out that section 15 of the Ordinance originally consisted of eight grounds for eviction of any tenant from any tenement out of which the first ground was omitted by the Sind Rented Premises (Amendment) Ordinance 1984 (IV of 1984) with effect from July 30,1984. The said ground mentioned in section 15(2) of the Ordinance was as under: (i) That the tenancy has ceased to be valid under section 6. It is important to note that said section 6 was also omitted by the same Ordinance i.e. Ordinance VI of 1984. The said section 6 appeared in the Ordinance, at the time of its promulgation, as under: Section 6: Tenure of tenancy:- No tenancy shall, at the time, be valid, beyond such period as the landlord and tenant have, by mutual agreement, fixed before or after the commencement of the tenancy. Provided that nothing in this section shall affect any tenancy existing immediately before coming into force of this Ordinance. These two omitted provisions of the Ordinance had the closest relationship with section 5 of the Ordinance. Section 5 of the Ordinance relates to the execution of tenancy agreement. Inspite of its closest relationship the said section was not omitted at the time of omitting section 6 and 15(2)(i) of the Ordinance. Hence it can be undoubtedly said that keeping section 5 alive was not meaningless particularly when no such provisions or similar provisions as section 5 (still existing) and section 6 (omitted) were existing in the repealed Sind (or West Pakistan) Urban Rent Restriction Ordinance 1959 (hereinafter referred to as the repealed Ordinance) when Sind Rented Premises Ordinance was promulgated on 21st November 1979 in place of the repeal Ordinance. In the light of these undeniable realities, it would not be possible to understand the real concept of default or to construe section 15(2)(ii) of the Ordinance unless the effects of these realities is searched out on the said section which relates to default. It is also necessary to find out the import of word "mutual" used in section 10, had been used in section 6 (omitted), and has been kept alive in section 15(2)(ii) of the Ordinance while this word had not been used in the repealed Ordinance. All these factors, as discussed in the above lines, forced me to discuss the import of default in detail before passing any order on the issue of default in the appeals in hand. A deep analysis of section 15 of the Ordinance which relates to eviction of the tenant radiates three important points in respect of the relationships of landlords and tenants. These points can be summarised with reference to the Right of tenancy as under:- (i) Right of tenancy comes to an end when eviction order is passed under clauses (ii), (iii), (iv) and (v) of section 15 of the Ordinance. (ii) Right of tenancy does not come to an end when eviction order is passed under clause (vi) of section 15 of the Ordinance. I have discussed this in detail in para 9. (iii) Right of tenancy remains suspended for some time when eviction order is passed under section (viii) of section 15. This point can be high lighted in the light of sections 15-A and 17 of the Ordinance. In such cases of eviction if the landlord relets the evicted premises to any person other than the previous tenant or puts it to a use other than personal use within one year or such possession, he can be not only punished under section 15-A (i) but the Rent Controller shall restore possession of the premises to the tenant if he has applied for the same under section 15-A (ii) of the Ordinance. I am of the view that the Rent Controller is bound to do so notwithstanding that the property in dispute was sold to any other body or new tenant was put in the said property. As this right of tenancy is not an issue in these appeals, hence, I would discuss only the remaining two rights of tenancy as mentioned above, in the forthcoming paragraphs as they are the subject matter of the appeals in hand. DEFAULT IN PAYMENT OF RENT 7. Ejectment of a tenant form any tenement is regulated by section 15(2)(ii) of the Ordinance which reads as follows: Section 15(2)Cii): the tenant has failed to pay rent in respect of the premises in his possession within fifteen days after the expiry of the period fixed by mutual agreement between the tenant and landlord for payment of the rent, or in the absence of such agreement, within sixty days after the rent has become due for payment; This provision of the Ordinance must be read alongwith all other relevant provisions out of which sections 5 and 10 read as follows: S. 5. Agreement between landlord and tenant. (1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsory registerable under any law for the time being in force, it shall be attested by, signing by, and sealing with the seal of, the Controller and sealing with the seal of, the Controller within whose jurisdiction the premises is situated, any Civil Judge or First Class Magistrate. (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registerable under any law for the time being in force, a certified copy of the registered deed and where the agreement is not so registerable, the original deed duly attested under sub­ section (1), shall be produced an accepted in proof of the relationship of the landlord and tenant Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance. Section (10) Payment of rent. (1) The rent shall, in the absence of any date fixed in this behalf by mutual agreement between the landlord and tenant,be paid not alter than the tenth of the month next following the month for which it is due. (2) The rent shall, as far as may be, be paid to the landlord, who shall acknowledge receipt thereof in writing. (3) Where the landlord has refused or avoided to accept the rent, it may be sent to him by postal money order or, be deposited with the Controller within whose jurisdiction the premises is situated. (4) The written acknowledgement, postal money order receipt or receipt of the Controller as the case may be, shall be produced and accepted in proof of the payment of the rent: Provided that nothing contained in this section shall apply in the cases pending before the Controllers on the commencement of this Ordinance. (underlining is my own) It is important to point out that these two sections of the Ordinance contain two provisos-one proviso to each section as underlined above. Proviso to Section 5 of the Ordinance contains the words "in this Section", instead of the words" in this sub-section, which leaves no doubt that this proviso covers both sub-sections of section 5. For the purpose of searching out true import of any provision of law, it would be proper to find out all possible constructions of the said provision on the bases of this principle that all relevant provisions be taken into consideration so that none of the provision of the Ordinance be treated redundant. Several possible constructions of Section 5 with reference to its proviso can be derived in the light of following realities:- The Ordinance, after its promulgation on 21st November 1979 requires compulsory existence of one written agreement on account of the words "Shall be in writing" used in section 5 (1) of the Ordinance. This agreement must be registered under any law for the time being in force. However if an agreement is only for a period which does not require registration then such agreement is not compulsory registerable but it shall be attested by, signing by, and sealing with the seal of the Rent Controller within whose jurisdiction the premises is situated or any Civil Judge or First Class Magistrate. The said agreement, registered or un-registered as the case may be, shall be produced and accepted in proof of the relationship of the landlord and tenant provided the same is denied. Admittedly no similar section was existing in the repealed Ordinance. Therefore, this section would be applicable only in those cases in which tenancy had started between the parties after the promulgation of the Ordinance in 1979. But the question arises what would be the position of those cases in which tenancy started prior to the introduction of the Ordinance and the agreements were neither registered nor attested and signed by or sealed with as required by section 5 of the Ordinance? The answers to this question is the proviso to section 5 of the Ordinance. 8. One more question also arises as to what are the effects or consequences if no agreement had been executed between the landlord and the tenant, registerable or unregisterable as the case may be, in the cases where tenancy started after the promulgation of the Ordinance? (1) On view is that use of word "Shall" in sub-section (1) of section 5 of the Ordinance is mandatory for seeking ejectment of tenant on the bases of the Ordinance. In case of oral agreement, ejectment can be sought on any other legal forum other than the court of Rent Controller. In absence of any ritten agreement, the Rent Controller has no jurisdiction to entertain an application under section 15 of the Ordinance. Similar view was expressed in the case oiHabib Ahmed vs. Liaquat Hussain reported in PLD 1985 Karachi 741 by Munawar All Khan J (as the then was). This is one possible construction of section 5(1) of the Ordinance. (2) Another possible construction of section 5(1) of the Ordinance encircles a view according to which the use of the word "shall" in the said section is directory and not mandatory. Therefore, non-compliance of the said provision does not entail any invalidity to nullify all those tenancy agreement which are not inconfirmity with the provisions of section 5(1) of the Ordinance. This is the second possible construction of Section 5(1) of the Ordinance. This view was expressed in the case of Mst. Fatima vs. Mst. Hanifa reported in 1986 CLC 1613 by Saleem Akhtar J., (as he then was the Judge of the High Court of Sindh and now the Judge of the Supreme Court). (3) With utmost respect and regards for both the Hon'ble Judges I found myself unable to embrace their views ipso facto as expressed by them in their judgments. It is noticeable that prior to the promulgation of Sind Rent Premises Ordinance, there was no such provision similar to section 5 of the Ordinance in the repealed Sind Urban Rent Restriction Ordinance 1959. Therefore, intention of the legislature for introducing such provision in the Ordinance was of great importance and that importance was fully evident from sections 6 and 15(2)(i) which were the part of the Ordinance at the time of its promulgation but were omitted by an amendment made by Sind Rented Premises (Amendment) Order 1984 w.e.f. 30.7.1984. Although these two sections lost their existence on the statute book but section 5 of the Ordinance was kept alive. Section 5 and the omitted section 6 contained the word mutual agreement and these words were and are the part of existing section 15(2)(ii) as reproduced in the beginning of this para. Moreover the omitted section 6 had also proviso which made it evident that there was difference between the tenancy existing before and after coming into force of this Ordinance. Hence I am of the view that compliance of section 5 of the Ordinance was mandatory till sections 6 and 15(2) (i) remained part of that Ordinance. But the nature of section 5 of the Ordinance changed from mandatory to directory when Sections 6 and 15(2)(i) of the Ordinance were omitted w.e.f. 30.7.1984. This can be the third possible construction. 9. Result of these amendments made on 30.7.1984 by omitting sections 6 and 15(2)(i) of the Ordinance is obvious. The Sind Rented Premises Ordinance cam closer to the repealed Ordinance in several aspects. But I have no doubt in my mind that keeping section 5 alive alongwith the words "mutual agreement" in section 10 and section 15(2)(ii) of the Ordinance has its own consequences regarding mode of payment of rent to ascertain default particularly because the word "mutual" had not been used in the repealed Ordinance but was used first in section 6 (already omitted) soon after introducing section 5 in it which does not contain the word "mutual". But even after the amendment on 30.7.1984 the word "mutual" was kept alive in sections 10 and 15(2) (ii) of the Ordinance. All these important facts leave me with no other alternative but to view that if section 15(2) (ii) and section 10 of the Ordinance are read together, then three modes of payments are fully evident from these sections which can b« summarised as unden- (i) Payment of rent after the expiry of the period fixed by mutual agreement as used in Section 15(2) (ii) would means the period fixed by that agreement, which, in my view, is the agreement executed U/S. 5 of the Ordinance. This period may be weekly monthly, or yearly. The default in such case E would be counted after the expiry of that period; (ii) In the absence of any date fixed in this behalf by the mutual agreement then, U/S. 10 of the Ordinance, the rent has to be paid not later than the 10th of the month next following the month for which it is due. In such cases default has to be computed according to the spirit of section. Both these modes of payment of rent would be applicable in the cases when tenancy between the parties started after the promulgation of Sindh Rented Premises Ordinance 1979. (iii) In the absence of any such agreement (means mutual agreement), the tenancy would be covered by the provisos to sections 5 and 10 of the Ordinance. In all those cases, if there is no existence of any written agreement but tenancy is being carried on in accordance to any verbal agreement, then the Rent Controller is first bound to determine the mode of payment i.e., daily, weekly, monthly, yearly or at the will of the parties etc. It is only after determining the mode of payment of rent, the learned Rent Controller would decide as to whether any default has been committed or not In my view, these are the only three possible modes of payment of rent appearing in the Sind Rented Premises Ordinance. If the case of rent on the point of default would be decided by ignoring provisos to sections 5 and 10, particularly section 5(1), of the Ordinance, then these sections would become redundant. In the light of this discussion I have no hesitation to say that if the courts decide the issue of default without deciding the mode of payment, then such decision may not be sustainable in the eyes of laws. 10. Sub-section (2) of Section 10 of the Ordinance possesses another important aspect also regarding issues of default. This sub-section reads as follows:- "The rent shall as far as may be paid to the landlord who shall acknowledge receipt thereof in writing." (underlining is my own) It is an understood factor that this provision would be applicable in those cases where tenancy started after promulgation of the Ordinance. If any landlord does not issue or acknowledge receipt in writing in the cases of tenancy started after the promulgation of the Ordinance then burden would be on the tenants to prove payment of rent because it is the choice of the tenant to take risk of paying rent without getting receipt form the landlord. In such cases where any landlord takes a plea that rent has not been paid by the tenant then sub-section (4) of Section 10 leave no ambiguity that burden of proving payment of the rent shall be discharged by the tenant by producing written acknowledgment, postal money order, receipt or receipt of controller as the case may be. The underlined words "receipt of Controller" clearly provide a guide­ line that the tenant must deposit the rent with the controller if the landlord appears not to leave any proof for payment of rent with the tenant. However these conditions, as embodied in sub-sections (2) and (4) of section 10 shall not be applicable in the cases, which relate to period prior to the promulgation of the Ordinance because they would be covered by the Proviso to Section 10 of the Ordinance. In such cases, in my view, burden would be on the landlords as well as on the tenants equally to prove their contentions with the help of some evidence. Only verbal statements of the parties may not be sufficient, except in exceptional case, to declare any tenant/tenants to be defaulter. If any landlord claims that he has received rent from his tenant upto a specific period and has estopped payment after that period and on the other hand the tenant takes a plea that he has paid the rent but landlord was not speaking the truth then the learned Rent Controller has no magical or myslcal powers to find out as to who was speaking the truth and who was telling lies. In such cases, the Rent Controller must never be a technical person like a Civil Judge of a Civil Court or the slave of Code of Civil Procedure. He should put the burden on both the parties by asking the landlord to give proof of previous payment of rent and from that proof the mode of payment be determined by learned Rent Controller. It is only on the bases of that mode of payment as discussed in para 9 above that the landlord has to determine the question of default instead of deciding the said issue on the verbal statement of landlords. Unless the landlord succeeds to establish the mode of payment of rent, the Rent Controller is not supposed to treat tenancy to by on monthly bases particularly in the cases which fall within the dutches of Proviso to Section 10 of the Ordinance. It is notable that I could not treat the word "mutual" to have been used in its literal sense. It could be done so only if there had been no existence of Section 5 after Section 6, alongwith 15(2)(i) of the Ordinance were omitted. Similarly a tenant, in all such cases, can bring evidence to prove the mode of payment and the conduct of his landlord to show himself to be a truthful person and the landlord to be a Us. I am also of the view that if a Rent Controller cannot pass an order to deposit the arrears of rent for a period more than three years then period of default be also limited to that period. For example a landlord files a rent case against his tenant in July 1990 and claims that the tenant has not paid his rent since July 1980 then the Rent Controller does not pass an order for depositing the arrears of rent for the last 10 years. If he has power to an order only for deposit of rent from July 1987 then default be also counted from that date. It does not make any logic that a landlord can get arrears only for a period of three years but default be computed from a period prior to that. Reconstruction or erection of new building. 11. Eviction of the tenants from the tenements under Section 15(2)(vi) does not mean the end of tenancy if judged on the anvil of relevant provisions of the Ordinance including sub-sections (3) and (4) of section 15 of the Ordinance. A bare perusal of these section shows that: (i) Landlord has to obtain necessary sanction for such reconstruction or erection from some Authority. (ii) The authority who has given such sanction must be a competent authority to give such sanction. Both these conditions ar embodied in Section 15(2)(vii) of the Ordinance. (iii) The tenant shall be entitled to be put into possession of the premises and for the purpose he may apply to the Controller for an order in behalf: - (a) if the landlord fails to demolish the existing building within six months of the taking over of the possession of the premises; (b) or as the case may be, the landlord has failed to commence the erection of the new building within two years of the taking over of the possessions of the possession. It means that the landlord has been given maximum period of six months to demolish the old building. If the building has been demolished within one month then commencement of the erection has to be started within two years from that date. These conditions have been embodied in section 15(3) of the Ordinance. (iv) the tenant, before the completion of the new building, may apply to the Controller for an order directing that he be put in possession of such area in the new building as does not exceed the area of the old building of which he was in occupation. (Section 15(4) of the Ordinance). (v) If such an application is made, the Controller shall make an order accordingly:- (a) in respect of the area applied for or such smaller area as considering the location and type of new building and the needs of the tenant as the Rent Controller deems just and; (b) on payment of rent to be determ ned by him on the bases of rent of similar accommodation in the locality. Section 15(4) of the Ordinance. All these points make it fully clear that eviction on the ground of reconstruction or erection does not mean to deprive any tenant from his valuable right of tenancy. Reliance can be placed on several reported cases including the cases reported in 1983 SCMR 391 and 1988 SCMR page 1575. It is a matter of great concern and sorrow, as is usually observed in several cases, that most of the Rent Controller pass an order of eviction on the ground of reconstruction or erection by holding that the landlord has obtained necessary sanction from the competent authority and therefore, tenant is ordered to vacate the premises within so much time. All such orders would be of no legal effect if the learned Rent Controller has not gone through the approved plan and sanction to see as to: (i) Whether it would be possible to put the tenant in the newly constructed building if he applied, U/S. 15(4) of the Ordinance; (ii) Whether sanction was given by a competent authority or not? 12. A question arises how the Rent Controller shall put the tenant into possession of the demolished premises in the landlord succeeds to get his tenant evicted on the ground of reconstruction and erection and also demolishes the building within time but does not commence the erection of the new building within two years. It is but understandable that a tenant previously living in a residential house would not be able to reside on a demolished site. If no provision of the Ordinance provide any solution to any such situation then this point of the section 15(3) would be treated redundant and meaningless. As discussed earlier, interpretation of all the provisions of a statute have to be construed harmoniously to avoid conflict end to save every provision of the statute from becoming redundant. Although no specific provision has been introduced to meet such situation yet section 11 of the Ordinance can be helpful to meet this problem. I am of the view that if any tenant is evicted from any building for the purpose of reconstruction or erection he is deprived of amenities and services as mentioned in section 11(1) of the Ordinance. If the landlord fails to reconstruct the building within two years after demolishing it or keeps it demolished instead of erecting the building within time then the tenants can get its possession as permitted U/S. 15(3) of the Ordinance. He can get it constructed himself and get the rent of the premises adjusted in the expenses suffered by him. But that rent be fixed by the Rent Controller U/S 15(4) n the basis of rent of similar accommodation in the locality. Moreover he (means the tenant) can move an application U/S. 11 of the Ordinance to get the amenities restored besides getting the landlord punished under sub­ section (5) of the section 1 of the Ordinance.

1. In the light of all these principles and propositions, if the facts, merits and demerits of the appeals in hands are taken into consideration then following realities are fully radiated from the record. (i) Regarding the issue of reconstruction and erection, the landlord has stated in all the nine applications that "Hayat Compound" (means the premises in dispute), being old and Kacha Built, is in dangerous condition and Municipal Corporation and HDA repeatedly issued notices for vacating it and getting the same demolished but the tenants have ignored those notices and refused to vacate tenements in their respective occupation. It was then further stated that the landlord requires the whole building for erecting new building on the same site for which he has got the plan approved and also obtained requisite sanction from HDA. (ii) All the tenants took a stand that notices issued by HDA firs tin June 1980 which were contested by them. The Elaqa Magistrate was appointed to make inquiry and on his report the said notices vacated. Hence a second notice was arrange by the landlord only to harass the tenants; (iii) The landlord produced certain documents in support of his stand including the plan of building approved by HDA, sanction from the concerned department to reconstruct and erect new building etc. On the bases of this evidence, the learned Rent Controller decided the issue in favour of the landlord by holding that the tenants had failed to produce the copy of report prepared by the fllaqa Magistrate. It was further held that as the authenticity of the documents such as notices issued by the Building Control Authority, approved plan and sanction for construction have not been rebuilted, hence the building was bonafidely required by the landlord for erection. On the basis of this presumption, the learned Rent Controller also viewed that the landlord has proved on the face of the documents that the building was in dangerous condition and he, thus, allowed the application; A bare perusal of the record of these cases shows that order of the learned Controller is totally silent on several important points. For example the order of the learned Rent Controller is totally silent regarding the area possessed by the nine tenants. The landlord has admitted in his cross examination that he could not say about the exact area of each quarter possessed by the tenants. He also stated that he had seen the tenants lastly in 1970. If the landlord had not seen the tenants after 1970 then he could not say that the premises in dispute were in dangerous condition unless he had examined someone from the office of the HDA. Notwithstanding the effects of not examining any official from the HDA or the Illaqa Magistrate to ascertain the truth and falsehood of the pleas taken by the respective parties, the learned Rent Controller, in the circumstances, was duly bound to consider as to whether the approved plan brought on the record brought on the record could meet the situation if the tenants and applied U/S 15(4) of the Ordinance. The learned Rent Controller has ignored this most important aspect while passing Order in each case. As'the learned Rent Controller appears not to have taken any pain to go through the approved plan which could reveal several hidden stories, hence this duty is being performed by this court. The approved plan shows that it consists of four independent units on four corners with big court yards. Although the front elevation of plan shows the building consists of two floors ground floor and first floor, but only one stair-case has been sown to reach the first floor which can only connect two independent Units on the first floor. It is thus evident that no provision has been left in the approved plan to induct the nine tenants. This is undeniable evidence to show that the landlord does have no intention to induct the present tenants in the newly proposed approved plan of the building if they U/S 15(4) of the Ordinance. On the bases of these undeniable realities, the learned Rent Controller could not be expected to be prevailed upon by the contentions raised on behalf of respondent/applicants on the issue of reconstruction or erection. Similarly the learned Rent Controller was not expected to ignore other relevant provisions while deciding an issue U/S 15(2)(vi) of the Ordinance. From this approved plan it also appears that the landlord could easily provide accommodation tot he tenants in one corner of the premises if total area of those quarters had been very small and could start construction on the remaining site because the approved plan does not show any multi-storied building on the total area with one plinth.
2. Come to the issue of default It has been discussed in para 9 and 10 of this order that if tenancy between the parties relates to a period prior to the promulgation of Sindh Rented Premises Ordinance then mode of tenancy has to be regulated in accordance to the spirit of the provisos to sections 5 and 10 of the Ordinance, 1979. Nothing has been brought on record to show the mode of payment of rent which was the requirement of relevant provisions as discussed in earlier paragraphs. The landlord has claimed in all the applications filed by him U/S 15 of the Ordinance that the tenants have committed default in the payment of rent. This allegation of default in different applications with reference to the appeals in hand and the alleged period of default can be summarised as under: F.R.A. No. Rent Applic cation No. Default From: (a) 142/86 47/83 October 1976 (b) 143/86 48/83 December 1976 (0 144/86 49/83 July 1971 (d) 145/86 53/83 June 1977 (e) 146/86 436/82 1.11.1970 (f) 147/86 437/82 1.7.1971 (g) 148/86 438/82 1.6.1971 (h) 149/86 439/82 1.6.1971 (i) 150/86 440/82 1.2.1971 The rate of rent mentioned in all the applications appears to be Rs. 10/- for each tenement except in Rent Application Nos. 48/83 (FRA No. 143/86) and 49/83 (FRA No. 144/86) wherein the rate of rent has been stated as Rs. 20/- and Rs. 15/- respectively. The following answers to different question appearing in the cross-examination of the landlord are of great importance. (1) It is incorrect that we never issued receipts to the opponent; (2) I do not remember whether I gave notice to the opponents for the stopped payment of rent to me; (3) It is incorrect that the opponent remitted rent to me through Money Order. (4) It is correct that I had received the notice of rent application filed by the opponent for the permission to deposit the rent in court; (5) I do not know whether Municipal Corporation Hyderabad issued notice in 1980. (6) I do not know whether Municipal Magistrate had come to inspect the site after issuance of the notice from H.M.C. (7) It is incorrect that on inspection of the Magistrate the notices were withdrawn by the Corporation. (8) I do not know whether the Illaqa Magistrate had observed that the quarters were in dangerous conditions. (9) Lastly I have seen the quarters in 1970. From these answers it can be easily guessed that claim of the landlord, who visited the site in 1970, that the premises in dispute were in dangerous condition could be believed when he took this plea after about 10 years in 1980. If the tenements had been in dangerous condition in 1970, then his silence from 19870 till the filing of rent applications after 1980 was not meaningless, particularly when he had not visited the site in 1970. If the building had been declared dangerous in 1980 then it was necessary to get someone examined from the concerned department. It may be said that the tenants have also not examined anyone in support of their contentions but I am of the view that there was no need for the tenants to examine anyone when evidence of the landlord was that he did not know this fact or that fact. Such type of answers amount to not denial of those facts. In presence of this legal position of the evidence brought on record by the landlord, this court is unable to believe his statement regarding default particularly when: (i) There is evidence of one person on one side (that of landlord) and evidence of nine persons (that of tenants) on the other side. How the evidence of nine persons be disbelieved and the evidence of one person be believed. (ii) The landlord did not produce any record to show in the shape of receipts or register about receipt of payment of rent or anyother proof to show that he had issued the receipts as claimed by him; (iii) When the tenants never committed default in depositing rent in the court of Rent Controller without a single instance of default during that period, which covers a period of several years, then it cannot be believed that they had committed default in payment of rent prior to that period. (iv) Conduct of the landlord to remain silent for non-payment of rent for several years before issuance of the notice in 1980 by the HDA and filing the rent application in 1982 and 1983 for the alleged default committed in seventies does not appear to the meaningless. It appears that dispute started after the final notice was issued by the HDA and the landlord filed the rent application after that period. The learned Rent Controller could easily ascertain the conduct of the tenants during the period of pendency of the Rent cases, which he did not. All these factors clearly show that verbal statement of the landlord could not be believed on the bases of technicalities unless the landlord had produced some evidence ergarding his conduct to show it to be justified for remaining silent for a long time and regarding the mode of payment of rent etc. Without determining these factors, the issue of default could not be decided by the learned Rent Controller.
3. In the result, these appeals are allowed. The impugned orders of the learned Rent Controller are set-aside. As evidence of the parties on record is nothing but words against words, hence the matters are remanded back to the learned Rent Controller to decide all the 9 applications afresh by providing opportunities to the parties to bring evidence in support of their contentions. For the purpose of calling certain official witnesses if the parties avoid to move any application U/S 20 of the ordinance, the learned Rent Controller must not hesitate to exercise his/her powers under that section to find out the truth and falsehood of the parties. In this connection the learned Rent Controller must not fear in exercising his powers U/S. 20 of the Ordinance to expose the falsehood of any of the parties and if the falsehood of any party becomes crystal clear then such persons must not be believed regarding his verbal statement on any issue by taking into consideration the qualification of a true witness mentioned in the Qanoon-e-Shahadat and other provisions as well as on the principles of equity which are the characteristic of Islamic and natural justice. (B.T.) Appeal accepted.

PLJ 1996 Karachi 630 PLJ 1996 Karachi 630 Present: hamid ali mirza, J. PHILIP MORRIS PRODUCTS INC.--Appellant versus DEPUTY REGISTRAR OF TRADE MARKS, and another-Respondents Misc. Appeal No. 20 of 1993, dismissed on 3.10.1995. Trade Marks Act, 1940 (V of 1940)-- —S. 76, 10(1) & 8(a)--Registration of Trade Mark-Question of similarity-Whether products mark "Red & White" are different in description to products with mark "Red & Bright and that there would be no likelihood of deception or confusion-Question of-Besides first word "Red" there is second word "White" of appellants, mark, which could not be said to be identical to appellant's mark-There could not be confusion to purchaser's, eye between suffix "white" of appellants, mark, which is not similar to word "Bright" of appellant's, and being of not similar in description to that of appellant's, mark and product hence could not fall within mischief of nrovisinns of S. Wa^ and 10(11 of Act—Label of chewing tobacco is quite different to design of label on packet of cigarettes of "Red & White'-Therefore, on said count as well there could be no probability or possibility of deception or cause of confusion~It could conveniently be said that trade mark applied for by respondent No. 2 is dissimilar to that of appellants and also their goods with mark "Red & White" are different in description to that of goods with mark "Red & Bright" of respondent No. 2 and there would not be any likelihood of deception or cause of confusion which could bar Registration of trade mark of respondent No. 2-Held: Conclusion arrived at by Registrar in respect of Trade Mark in exercise of his discretion vested in him by statute should not always be disturbed in appeal and superior courts would always be reluctant to interfere with that discretion-Appeal dismissed. [Pp. 637 & 643] A, B, C & D AIR 1964 Madras 204, 1977 US PQ 627,1977 US PQ 183, (1912) 29 RPC 4SS, 1965 RPC 363,1965 RPC 366, PLD 1973 Kar. 567, PLD 1970 SC 313 and PLD 1973 SC 104. Mr. E.A. Nomani, Adv. for Appellants. Mr. Abdul Hameed Iqbal, Adv. for Respondents. Date of hearing: 27.4.1995. judgment This is an appeal under section 76 of the Trade Marks Act, 1940 (hereinafter referred to as the 'Act'), filed by appellant Philip Morris Products, Inc. against the decision dated 22.12.1992, passed by Deputy Registrar of Trade Marks, Karachi, whereby after hearing the parties rejected the opposition No. 103190 and allowed the respondent No. 2's application No. 94645 dated 4.6.1987 in class-34 thereby allowed registration of Trade Mark consisting of words "Red & Bright" (label) for "chewing tobacco" on an application No. 94645 in class-34 filed by respondents/ applicants. The respondent No. 2 applied for registration of Trade Mark consisting of word "Red & Bright" for "chewing tobacco" on 4.6.1987 as per their application No. 94645 before the respondent No. 1 in class-34 which application was advertised in Trade Marks Journal No. 461 of June, 1989 at page 111, to which the appellants filed notice of objection No. 103/90 on Form T.M. 5 with respondent No. 1 to oppose the registration of Trade Mark "Red & Bright" on the grounds that the mark of the respondent No. 2 was closely similar to their mark "Red & White" and goods were of the same class and description to that of appellant's Trade Mark "Red & White" which has been internationally registered and maz-keted and the said mark has been used extensively around the world in relation to "Tobacco whether manufactured or unmanufactured" and as a result the product sold under the said Trade Mark "Red & White" has acquired great popularity, reputation and good-will, hence the mark of the respondent No. 2 was liable to be refused under Sections 10(1) and 8(a) of the Act, as the said mark was likely to cause confusion and deception among the general public regarding the source of goods and further the said mark was also objectionable under Section 14(1) of the Act. The respondent No. 2 also filed counter-statement on from TM-6 denying all those objections and claiming that the said mark was already registered in their name in class 30 in respect of Pan Masala under No. 50412 after contest through opposition filed by Predecessor-in-interest of the appellants in opposition No. 62/1973 against which no appeal was filed, therefore, said mark "Red & Bright" of the respondent No. 2 was accepted. After completion of all the formalities and hearing the both representatives on 2.12.1992, the above impugned decision was made by respondent No. 1, hence this appeal. I have heard Mr. E.A. Nomani of M/s. Surridge & Becheno for the appellants and Mr. Abdul Hameed Iqbal for respondent No. 2 but none has appeared for respondent No. 1. Learned counsel for the appellants' contention is that respondent No. 1 has erred in not arriving at the conclusion that respondent No. 2's proposed trade mark "Red & Bright" was deceptively similar to the appellants' trade mark "Red & White" considering that first word "Red" in both the marks was identical. He has further urged that respondent No. 1 has erred in observing that Section 8(a) looked for likelihood of confusion or deception but not for actual or practical confusion considering that goods were in the same class and of the same description in respect of which appellants' mark was registered and used throughout the world. He has further argued that the people who smoke tobacco were mostly the same class of people who chew tobacco to derive a particular sensation from smoking or chewing of tobacco and since the selling cut-lets of both the products were the same, i.e. Pan shops, therefore, confusion and deception would be very much there. He has further contended that second word of both trade marks, i.e. "White" and "Bright" conveyed almost similar meanings and the same were phonetically similar, therefore, the same would lead to confusion in the market as the purchasers of "Red & Bright" chewing tobacco would think that the said product emanates from the manufacturer of the famous "Red & White" cigarettes. He has further argued that respondent No. 1 failed to appreciate that Pan Masala was registered and placed in class 30 and the same did not contain tobacco and was basically consumed by children for its sweetened taste and colourful packing while the present goods contained tobacco similar to the goods of the appellants, therefore, Pan Masala and the chewing tobacco were not goods of same description. He has in the end argued that the respondent No. 1 has failed to consider the cases cited by him. He has placed reliance upon PLD 1990, SC 313 7-up case, 29 RPC, 489 (1912), PLD 1973 Kar. 567 Montgomery Flour case, AIR 1964 Madras 204, 1977 USPQ 183 Loe's Theatre case, 1965 RPC, 363 Players case, 1965 RFC, 366 Woodie's V. Woodbine casein support of his contentions. Learned counsel Mr. Abdul Hameed Iqbal for respondent No. 2 has argued that the same mark has already been registered in their name in class 30 in respect of Pan Masala under No. 50412 and further that the respondent No. 2's mark was different from the mark of the appellants so also the goods were different in description and that there have been 50 marks on the register in the name of different proprietors with pre-fix "Red". He has placed reliance upon Thomas Bear & Sons ltd. v. Prayag Narain, 58, RPC 25 (1941) J. Lyons & Coy Ltd. (1959 RFC 120), 63, RPC, 59 (1946) Panda's case, (1969) RPC 600 Dai Quiri Rum case, 63 RPC, 1 (1945) Morex case, (1909) 26 RPC 428 Maltese Cross case, 6 RPC, 311 (1889) Golden Fleece case, 1987 MLD 2864 in support of his contention. The Deputy Registrar of Trade Mark has based his decision on the following grounds:- (a) The Trade Mark is a whole thing as it appears on the product and as such it should be considered as a whole while comparing with the other mark in order to see whether it is confusingly similar or not. In the light of above settled principle the subject mark "Red & Bright" is quite dissimilar and distinguishable from the mark "Red & White". The principle relied by the opponent as per reported case, PLD 1973 SC 104 is not relevant in this case because in the said decision there is only one word whereas in this case both the marks consist of two words hence this case alongwith other cases are distinguishable on this grounds; (b) The goods claimed by the applicants (respondent) are only "Chewing tobacco" which are normally used in Pakistan and India alongwith pan and considered as an ingredient of pan. Moreover, there is a clear authority reported in (1941) 58 RPC 25, wherein it was held that chewing tobacco and smoking tobacco (pipe) and cigarettes are goods of the different description " (c) The applicants (respondents) are the registered proprietor of the same mark in class 30 in respect of Pan Masala, hence this application which is for the same description of goods, although falling different class should be allowed. Section 8(2) of the Act reads as under:- "No trade mark nor part of trade mark shall be registered which consists of, or contains, any scandalous design, or any matter, the use of which would:- (a) reasons of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in the Court of justice; or (b) ......... " Section 10(1) of the said Act runs:- "Same as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and either already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion." The above provisions of Act prohibit the registration of a trade mark in respect of any case or description of goods which is identical with the trade mark belonging to a different proprietor, in respect of same goods or description of goods or which nearly resembles such trade marks as to be likely to deceive or cause confusion. In the instant case the plea of learned counsel for the appellants is that use of trade mark "Red & Bright" would cause deception and confusion in respect of trade mark of the appellants as the first word "Red" was common to the trade mark of the parties and the second word of both the trade marks "white" and "Bright" conveyed almost similar meaning and the same were phonetically similar and further that the product of the appellants and that of respondents was made of tobacco, therefore, the product was of the same description which was bound to cause confusion and deception upon the users thereof. It has been repeatedly held by Superior Courts that mere adoption of registered trade mark, irrespective of class or category of goods would not be decisive to attract the provisions of clause (a) of Section 8 of the Act as otherwise other provisions of the Act would become redundant. I may state that the element of deception and confusion would depend upon number of factors as well as question of similarity of the mark and the get up. It is possible that the mark may be similar without there being any likelihood to cause one mark being confused with the other. The registration of new trade mark in respect of any product or description of goods is to be refused if an identical trade mark in respect of same goods or description of goods belonging to different proprietor is already,registered or it so nearly resembles the latter trade mark that is likely to deceive or cause confusion. Reference is made to Pakistan Soap Factory vs. Chittagong Soap Factory (PLD 1970 SC 460). Mr. Noorul Arfin, J. (as he then was) observed in Jamia Industries vs. Caltex Oil (Pakistan) Limited (PLD 1973 Karachi 246):- "The rule is now established judicial consensus that in making comparison of two marks emphasis should be laid down on their leading features and that in doing so, it should be determined as to what are the leading haracteristics of each of the competing trade marks. The same rule has been stated in different words, that is what would be the impression left on the mind, whether there is any likelihood that, by adoption from a registered trade mark of one of its leading characteristics, the proposed trade mark may create the impression that goods under both trade marks originated from same source. A judicial review of the cases shows that though ordinarily totality of two marks should be seen to ascertain whether they are similar to each other or distinctive from each other, but where a dominant feature of registered trade mark is incorporated in the competing trade mark, then there is not only possibility but also probability of deception and confusion being caused and, therefore, the rule has been accepted that a trade mark is infringed if a person other than registered proprietor or authorised under incorporates in his trade mark one or more essentials or characteristic features of the registered trade mark." In Kaiser Jeep Corporation vs. Saber Saleem Textile Mills Ltd. (PLD 1969 Karachi 376 at page 380) Mr. Noorul Arfin, J. (as he then was) observed: "The determine whether deception or confusion was likely to arise, Evershed, J. (as he then was) formulated this test in the "Ovax case" (Smith Hayden & Co. Ld's Apln.) (1946) 63 HPC 97,101 "Is the Court satisfied that the mark applied for if used in a normal and fair manner in connection with any goods covered by the registration proposed, will not be reasonably likely to cause deception and confusion amongst a substantial number of persons". In another case, Jellinek's Apl. (1946) 63 RFC 59, Romer, J., approved the view that it is not necessary to prove that there is an actual probability of deception leading to a passing-off, but it will be sufficient to show that the result of the user of the mark will be that a number of persons will be cause to wonder whether it might not be the case that the two products come from the same source, and, further, that it would be enough if the ordinary person entertains a reasonable doubt. On the same question, some further judicial observations may also be noted with advantage. In "Gro-Pal case" (Gaines Animal Foods Ld's Apl.) (1951) 68 RFC 178, Lloyd-Jacob, J. said-"If the marks have no resemblance, the most extensive reputation in relation to one cannot create confusion in the use of the other, nor, if one mark is wholly unknown in the market, could a confusingly similar mark involve deception". In Someruille vs. Schembri (1887) 12 Act 453, Lord Watson observed~"The acquisition of an exclusive right to a mark or name in connection with a particular article of commerce cannot entitle the owner of that right to prohibit the use by others of such mark or name in connection with goods of a totally different character, and that such use by others can as little interfere with his acquisition of the right" In the instant case leading characteristic as contended in the trade mark of appellants is the word prefix "Red' which is followed by suffix word "white' in case of mark of the appellants while the word "Bright" suffix is followed in case of mark of the respondents and further the product of the appellants is cigarette while that of the respondents is the chewing tobacco therefore there would not be any possibility of deception or cause of confusion even in respect of their source to an ordinarily person hence there would be no infringement of the appellants mark. In the instant case admittedly the product of respondents (Red & Bright) is made from tobacco and is used for chewing with Pan while the product of the appellants, though made from tobacco, is used for smoking in cigarettes. The learned counsel for the appellants has failed to persuade me that the same class of people generally use chewing tobacco and cigarettes. It may be that the out-lets of both products may be the same but it would not lead to the fact that there was likelihood that the trade mark of chewing tobacco and trade mark of cigarettes could cause deception or confusion considering also the packing of both the trade mark was different and distinguishable from each other to the respective users thereof. It is correct that the first word "Red" of the mark of the appellants is same to the mark of respondent No. 2 when the second word of the both marks is different. Second word of the appellants' product is "white" while that of respondent No. 2's product is "Bright". The words "White" and "Bright" have no similarity so far their spellings and meanings are concerned. The two words "White" and "Bright" have different meanings and are used in different sense. The word "Bright" is defined in Chamber's Twentieth Dictionary as :- "Shining": full of light: vivid: clear: beautiful (arch.): cheerful: vicacious: clever: Illustrious.- While the word "White" is difined as : "of the colour of pure snow: snowy: of the light complexion characteristic of Europeans: that absorbs the minimum and reflects the maximum of light rays: pale, pallid: bloodless: pure; unblemished, innocent: purified from sin: bright:" The competing trade marks are to be seen as a whole and in totality of impression to be left on the mind in respect of the product in question which would be the determining factor as to whether there would be any likelihood of deception or confusion being caused to purchase of the appellants' product. I have already said that the mark "Red & Bright" of respondent No. 2 was for chewing tobacco generally used with Pan while trade mark "Red & White" cigarettes of the appellants containing tobacco was for smoking purpose. Learned counsel for the appellant has not cited any case law whereby it could be said that chewing tobacco and cigarettes containing tobacco for smoking are of same description. On the contrary learned counsel for the respondents has cited ((1941) RPC 25) wherein it was held that "chewing tobacco" and smoking tobacco (pipe) and cigarettes were goods of different description in the stated evidence of case. It is also admitted position that respondents No. 2 was earlier earmarked same trade mark for Pan Masalah in class 30 under Registration No. 50412 though it was contested by the appellants, the said mark was finally allowed to be retained by respondents No. 2. Decision cited Abdul Wahid vs. Abdul Rahim (PLD 1973 SC 104) by Mr. E.A. Nomani is of no help to him in this case as in the said case their was only first syllable which was considered decisive to resolve the conflict of likelihood of the deception and confusion but in the instant case besides the first word "Red" there is second word "Bright" which is suffix and dis-similar to the word "White" of the appellants' mark, which could not be said to be identical to the appellants mark. In the circumstances there could not be confusion to the purchaser's eye between the suffix "White" of appellants' mark, which is not similar to word "Bright" of the appellants and being of not similar in description to that of appellants' mark and product hence would not fall within the mischief of provisions of Sections 8(a) and 10(1) of the said Act. There is no sufficient evidence on record that in the stated circumstances there was probability of deception or confusion which could arise in the mind of public while making purchases of the goods either of appellants or of respondent No. 2. There is no evidence on record to show that the appellants also produce and market chewing tobacco, to the product and marketed by the respondents No. 2, therefore, the question of likelihood of deception or confusion would not arise in the circumstances of the instant case. The label of chewing tobacco is quite different to the design of label on the packet of cigarettes of "Red & White" therefore on said count as well there could be no probability or possibility of deception or cause of confusion. Chewing tobacco and smoking tobacco for pipe or in cigarettes are so different that it could not be said that it would cause any confusion to the public. Mere fact that chewing tobacco and smoking tobacco for pipes and cigarettes could be available at the same shop, would not by itself bar the registration of the mark of the respondent in the circumstances of the present case. In Thomas Bear & Sons India Ltd. vs. Prayag Narain & Jagennath & another (A.I.R. 1940 PC 86) it was observed:- "It is clear that the right of property that may be acquired in such a trade mark is based on the proved association in the market of the device, name, sign, symbol or other means in question with the goods of the plaintiff, so that the use by the defendant on such goods of the trade mark will amount— whether the defendant intends it or knows it or not~to the false representation that the goods are manufactured or put on the market by the plaintiff. There can obviously be no monopoly in the use of the trade mark. A manufacturer of cigarettes under an undoubted trade mark such as an animal, or any other device cannot legally object to the use of the identifical mark on, say, hats, or soap, for the simple reason that purchasers of any of the latter kinds or goods could not reasonably suppose, even if they were well-acquainted with the mark as used on cigarettes, that its use on hats or soap denoted that these goods were manufactured or marketed by the cigarette manufacturer. Those would be simple case, but some much more difficult ones can be suggested. If a manufacturer of a special kind of smoking tobacco under a trade mark seeks to restrain the use of it on cigars, on a very different kind of smoking tobacco, or on cigarettes, or on snuff, or on chewing tobacco, or on tobacco in some form sold for use as a weed killer-all these things being made of tobacco-Questions, sometimes of great difficulty, may arise. It is however very important to observe that each of these questions will be a question of fact to be decided on the evidence adduced. The vital element in such a case is the prohibility of deception. This may depend on a number of materials as well as the question of similarity of the marks or of the get-up. Witnesses can be called to prove the circumstances and the places in which the articles are sold, the classes of persons who buy them, and whether they include persons who are illiterate or ignorant or the reverse, the manner in which the public are accustomed to ask for the articles, and any other matters which will assist the Court to decide whether deception is probable. Evidence of actual deception may be available and if available may be very valuable. There is no such person as an expert in human nature, and it is not well-settled that a witness cannot be called to say that it is likely that purchasers of the goods will be deceived. This can only be a matter of opinion formed after the dispute has arisen and too often without any judicial consideration of the opposing contentions. On the other hand, a person who is accustomed to buy the articles in question may be called to say that he would himself be deceived, and cross-examination will often show that weight should be attached to such a statement" In case of "Daiquiri Rum" (1969) RPC 600 at page 620, it was observed:- "The expression "goods of the same description" is used elsewhere in the Trade Marks Act, 1938, in particular sections 12 and 26, and no reasons appears why it should not bear the same meaning throughout The words are not perhaps self-explanatory. Taken by themselves, they would suggest that it is necessary to search for a description, by species, genus or wider category which would include all the goods in question. Taken in relation to the Act of 1938, they might suggest a grouping by reference to the classification of goods for trade mark purposes contained in the Third or Fourth Schedules to the Trade Marks Rules. But reference to the classification shows at once that this cannot be the basis of "description", for there are many cases were a single class contains goods of different descriptions, while goods which one would think were of the same description may be found in different classes. Nor, on the more general test, is it sufficient to find a single trade description covering each of the goods in question. Thus, Lyons & Co. Ltd. 's Application (1959) R.P.C. 120, "sweets" though covering ice-cream and jellies was though to be too wide a description to be suitable." In (1963) RPC page 1 at page 3, it has been observed:- "Before proceeding to deal with specific issues involved in the present proceedings it may be convenient if here I made a few preliminary observations (a) as regards the classification of goods and "goods of the same description", and (b) as regards the interpretation of Sec. 7 and the onus which falls thereunder upon an applicant and opponent in opposition proceedings. (a) Relevant to the first of these two matters Sec. 3 of the Act provides as follows: "A" trade mark must be registered in respect of particular goods or classes of goods, and any "question arising as to the class within which any goods fall shall be determined by the "Registrar, whose decision shall be final". It is obvious from the wording of this section that it is one of the Registrar's duties to decide the allocation to different classes of new machines, new apparatus and new materials as and when the necessity arises, and in this duty, as in considering the question of "goods of the same description" he adopts as far as possible the principle suggested by the learned Master of the Rolls in Gutta Percha and Rubber Manufacturing Co. Ld's. Application, 26 R.P.C. 428 at page 433, that "the matter" should be looked at from a business and commercial point of view". Nevertheless it has been emphasised in various reported cases that the classification in the schedule to the Trade Mark Rules is no criterion as to whether or not two sets of goods are of the same description." At page 5 of the above judgment, it has further been observed:- "(i) In determining whether two sets of goods are of the same description various tests have been referred to in the reported cases. Consideration has to be given, e.g. to the nature and characteristics of the goods, their origin, their purpose, whether they are usually produced by one and the same manufacturer or distributed by the same wholesale houses, whether they are sold in the same shops over the same counter during the same seasons and to the same class or classes of customer, and whether by those engaged in the manufacturer and distribution of the goods they are regarded as belonging to one and the same trade. No single one of these tests is conclusive in itself. Now I think it may be specifically stated that the production of steel and the production of steel tools are two different industries; and in general steel in bulk and steel tools are distributed through different agencies. Steel in bulk is not likely to be purchased otherwise than by a wholesaler or by a manufacturer of steel articles. These considerations, I think, far out-weight the commonness of material to the two sets of goods and lead to the conclusion that, in accordance with that I stated above in my preliminary observations, steel and steel tools are not to be regarded as goods of the same description. In further confirmation of this view I might refer to the case ofBraby & Co.'s Applications (21 Ch. D., 112), in which it was decided that bar iron and wire on the one hand, and galvanised iron sheets on the other hand, were different goods." In (1909) 26 RFC page 428 at page 433, it has been observed:- "On the other hand, it was apparently felt by the Legislature to be desirable—having regard to the fact that the classes, which are 50 in number, overlap to a considerable extent-- not to limit the protection which was originally given only where an Applicant applied to register in that class in which the Opponent was already registered, but to give a wider protection. When it is made out that the "description of goods" is substantially of the same character, the new comer not is entitled to claim registration except by leave of the Court; equally so if it appears that the new mark so nearly resembles the old as to be calculated to deceive, or to use language which is to be found in many judgments, to create confusion. It has also been decided that "description of goods" is not to be read solely with reference to the class in which the registration is effected. "Description of goods" may be narrower than the whole class. But it may also be wider, in the sense that it may include articles in a different class. The matter should he looked at from a business and commercial point of view, and if the Court is satisfied that the goods, although in different classes, are really the same description of goods, the opponent is entitled to claim the benefit of Section 19." It now remains to consider the case law cited by learned counsel for the appellant. The first case, on which reliance is placed, is (i) N. Arumugam Filial vs. S.K Syed Abbas & another (AIR 1964 Madras 204). In this case appellant had challenged the registration of trade mark in respect of chewing tobacco manufactured by the respondent under the name "Thangapavum (Gold Sovereign) tobacco" when the appellant had already got registered trade mark in respect of chewing tobacco under the name of "Thangabasam tobacco". This case is distinguishable as the description of the product of both the parties was chewing tobacco while in the present case product of the appellant was cigarette while that of the respondent was chewing tobacco. The next case cited is (ii) Baryuk Cigars case 1977 US PQ page 627. In this case appellants requested to register mark "TITAN" as trade mark for cigars which was refused, as identical term "TITAN" for cigarette lighters and tobacco pipes was already registered in the name of respondents. The said case is distinguishable as identical trade mark "TITAN" was already registered in the name of appellants in respect of related character of product while in the present case trade mark consists of two words where the suffix of marks are quite different (iii) In Loews Theatress case (1977 US PQ Page 183) appellants requested to register the word "SILHOUETTE" as trade mark for cigarettes which was refused by the Examiner because of existence of a registration for trade mark "SILHOUETTE" for smokers pipers. This case is also distinguishable as the trade mark was identical to the trade mark already registered as the cigarette and smokers pipe are sold to same class of customers and could be purchased by one person (male or female) at the same time when there were pipes also designed to hold the cigarettes, (iv) In State Room and State Express case (1912) 29 RPC page 488, the appellant opposed the registration of respondents trade mark "State Room" in respect of product cigarette on the ground that their trade mark "State Express" in respect of product cigarette already stood registered in respect of same product cigarettes. This case is also distinguishable as both products of the parties were in respect of cigarettes, therefore, there was likelihood of -deception or cause of confusion, (v) In Players case (1965 RPC 363), the appellant applied to register the word "PLAYERS" in respect of cigarette made of confectionary which was opposed on the ground that identical word "PLAYERS" was already registered in favour of the respondent in respect of tobacco cigarettes which was likely to lead to confusion. This case is also distinguishable as the identical mark "PLAYER" was already registered in favour of respondents whereas the present mark of the respondents is different to that of the appellants (vi) In Woodies vs. Woodbine case (1965 RPC page 366) the appellants applied to register the word "WOODIES" in respect of confectionary intending to use it on cigarettes made of confectionary which was opposed by the respondents on the ground that their trade mark "WOODBINE" already stood registered in respect of tobacco cigarettes and also of confectionary. This case is also distinguishable as in the said case both parties were producing same goods, i.e. cigarettes made of confectionary under their respective marks "WOODIES" and "WOODBINE" when many people regarded that former trade mark as synonymous to WOODBINES while there has been no evidence of that sort in the present case, (vii) In Montgomery Flour (PLD 1973 Kar. 567) case, the appellants applied for registration of trade mark "7up" in class 30 which was opposed by the respondents on the ground that same trade mark was already registered in that name for manufacturing and selling of non-alcoholic carbonated water and also for candies under class 30 but latter was not so far manufactured nor was on sale as yet. This case is also distinguishable with the facts of instant case as the mark "Red & Bright" of the respondent for chewing tobacco is different from the mark "Red & White" of the appellants used for cigarettes, while in the cited case same trade mark "7up" was applied for registration when it already stood registered for candies in favour of the respondents. Last case, which has been relied upon, is Seven-up Company vs. Kohinoor Thread Ball Factory (PLD 1970 SC 313) wherein their Lordships of the Supreme Court after examining plethoria of authorities came to the final conclusion at page 344 and observed:- "Our statute law recognises and also protects trade mark in relation to goods, and not independently of the goods. Therefore, one is justified in claiming protection for a particular trade mark only if it is related to a particular good or class or category of goods. The generality of clause (a) of section 8 of the Act, cannot be given the meaning and the content so wide as to embrace all registered and widely used trade marks so as to exclude their adoption and use for any and every class or category of goods, howsoever different and dissimilar. The generality advocated is limited by clause (a) of Section 8 of the Act itself. The test provided therein is not the identity of the trade mark or of the goods but likelihood of deception or confusion such as to entitle protection in a Court of Law. The test of the likelihood of deception 1 or confusion is dependent on the nature of the goods, marketing methods, consumer awareness etc., all variables, differing from place to place, country to country and commodity to commodity. Even in the Caltex's case where the goods were totally different the Court proceeded to examine the first requirement and found it amply satisfied by holding "The potential market for them is, therefore, similar to that of the existing market of the opponents, in the sense that the goods of both the parties are not special goods. They are goods which would be purchased by the common man," and finally holding that "The opponents are a large company known by many as having large resources, and therefore, capable of starting any new industiy or trade". It has to be noted further that the likelihood of deception or confusion is tested not by the reactions of the immediate vendee but by those of the ultimate consumer." In view of the case law cited above and the facts of the case, it could be said that Section 8(a) of the said Act has placed bar to the registration of trade mark in relation to the same goods when it causes deception or confusion but no wide meaning could be given to the said provision of law to include all registered and widely used trade marks so as to exclude their adoption in use for any and every class or category of goods when their marks appear to be different and dissimilar. I have already held that the product of respondent No. 2 is not of same description to that of the appellant. It has been stated by learned counsel for respondent No. 2 and not denied by learned counsel for the appellants that there were many other trade marks registered with the Registrar of Trade Marks where suffix of "Red" has been used in respect of goods of different descriptions by different proprietors, therefore, the first word "Red" though common in both marks, would not bring the case of respondent No. 2 within the ambit of Sections 8(a) and 10(1) of the Act. In the instant case keeping in view the evidence, the facts and the case law, cited by the learned counsel for the respective parties, it could conveniently be said that the trade mark applied for by respondent No. 2 is dissimilar to that of appellants and also their goods with mark "Red & White" are different in description to that of goods with mark "Red & Bright" of respondent No. 2 and there would not be any likelihood of deception or cause of confusion which could bar the registration of trade mark of respondent No. 2.1 may also add that superior Courts have also held C that conclusion arrived at by the Registrar in respect of trade mark in exercise of his discretion vested in him by statute should not always be disturbed in appeal and superior Courts would always be reluctant to interfere with that discretion. Reference is made to Abdul Wahid vs. Abdul Rahim (PLD 1973 SC 104). In the instant case appellants have failed to show that respondent No. 1 had exercised his jurisdiction in violation of legal provisions of the Act. In the circumstances I do not find force in the contentions of learned counsel for the appellants, hence the appeal is dismissed. (B.T.) Appeal dismissed.

PLJ 1996 Karachi 644 [DB] PLJ 1996 Karachi 644 [DB] Present: rana bhagwan das and shah nawaz awan, JJ. POORAN MAL -Petitioner versus COMMISSIONER HYDERABAD DIVISION and 6 others-Respondents C-P.No. D-47 of 1995, dismissed on 28.3.1996. Constitution of Pakistan, 1973- —Art. 199 read with Rule 8(1) of Sind Permanent Residence Certificate Rules, 1971-Student Liaquat Medical College-Cancellation of domicile and P.R.C. by commissioner-Challenge to--Principles spelt out for admission in institution are that (1) Petitioner must be permanent resident of area for which he claims permanent residence certificate, (2) Domicile of his father, permanent place of abode, primary and secondary education at place, exercise of right of franchise in election are relevant consideration for determining permanent residence, (3) Temporary absence from permanent place of residence would not disqualify petitioner to obtain P.R.C. and (4) there ought to be concrete evidence of petitioners, permanent settlement at place for which P.R.C. is asked for~ Held: In light of principles and facts pleaded and agitated at bar, irresistible conclusion that can be drawn is that P.R.C. issued in favour of petitioner was rightly and justly cancelled-Petition without substance is accordingly dismissed in limine. [P. 655] C, D & E Constitution of Pakistan, 1973- —Art. 199--Cancellation of domicile and permanent Residence Certificate by Commissioner with hearing-Whether Commissioner acted without lawful authority in passing impugned order-Petitioner was duly served with notice of appeal, he had appeared before authority in respect to notice and was provided opportunity of hearing~In fact, he was heard in person and there is nothing on record to indicate that he himself or his counsel had desired adjournment of hearing even after lapse of seven hearings-Since petitioner has been heard at great length through his counsel on facts as well as law, he cannot be heard to say that impugned order is liable to be set aside or that it may be remanded to commissioner for re-hearing and passing fresh order in absence of any inherent defect or infirmity in impugned order-There is no gain saying that Commissioner had taken into consideration all facts and circumstances of petitioners case and examined record available before him as such he cannot be said to have acted without lawful authority or exceeded sphere of his authority—Peition dismissed. [P.654]A&B Mr. Rasool Bux Palijo, for Petitioner. Mr. Abdul Sattar Kazi, Addl. A.G. for Respondents No. 1 and 2. Mr. Jhamat Jethanand, Adv. for Respondents No. 3 to 7. Date of hearing: 28.3.1996. order Rana Bhagwan Das, J:-By this petition under Article 199 of the Constitution, the petitioner a student of Liaquat Medical College, Jamshoro seeks to adjudicate the order passed by Commissioner Hyderabad Division Le. respondent No. 1 dated 12.12.1994 cancelling his Domicile and P.R.C. dated 7.12.1993 issued by District Magistrate, Thatta as without lawful authority and of no legal effect, he also seeks a direction against the Principal Liaquat Medical College Jamshoro i.e. respondent No. 2 to continue his admission as student of MBBS. Alongwith the petition, petitioner moved M.A. No. 103/1995 under Order XXXIX rule 1 & 2 CPC seeking to stay the operation of the order dated 12.12.1994 passed by respondent No. 1 and a direction to respondent Mo. 2 to continue his admission for study in MBBS pending the decision of petition. While directing notice of this application status quo was ordered to be maintained by respondent No. 2. 2. Case of the petitioner in brief is that he is resident of village Ghano Mai Phadoomal in Deh Taraki Tapo Gujo, taluka Mirpur Sakro, District Thatta. His family possesses agricultural land in taluka Mirpur Sakro. His father who owned a shop at Dhabeji, District Thatta also purchased a shop at Sari, District Dadu. According to the petitioner his mother stayed with her husband at Dhabeji as well as at Sari. The petitioner himself was born at Sari on 20.7.1974 and was educated there upto 4 th Primary Class. Ultimately the shop at Sari did not run well and his father and mother had to shift to their original home at Dhabeji in District Thatta. Accordingly the petitioner was transferred from Government Primary School Sari, District Dadu to Government Primary School Dhabeji, District Thatta on 20.4.1985. After completing his primary education he studied at Government High School Gharo taluka Mirpur where he passed the Elementary Grade Drawing Examination held in 1989 and Intermediate Grade Drawing Examination held in 1990 both at Thatta Centre. He passed Secondary School Certificate from Government High School Gharo whereafter he passed his Intermediate Science Examination (Pre-Medical Group) while studying at Government College Thatta. It is maintained by the petitioner that he himself as well as his father continued to reside at Dhabeji as before where his father's name is entered in the Voter's list 1986- 87 for non-muslim constituency. Besides, the petitioner and his father had been issued National Identity Card showing their addresses as Dhabeji, District Thatta. 3. On 7.12.1993 District Magistrate Thatta granted Permanent Residence and Domicile Certificates of Thatta District to the petitioner and certificate of domicile in District Thatta to his father. On his application for admission to Liaquat Medical College, Hyderabad after usual scrutiny he was admitted to the said College, where he started attending the classes w.e.f. 16.4.1994. It is urged that on 15.12.1994 (infact it is 12.12.1994) respondent No. 1 i.e. Commissioner Hyderabad Division without hearing the petitioner and his counsel passed an order cancelling the Permanent Residence Certificate issued by District Magistrate, Thatta in favour of the petitioner in appeal filed by the respondents No. 3 to 7 under rule 8(i) of Sindh Permanent Residence Certificate Rules 1971 (hereinafter referred to as the Rules 1971). The petitioner has impugned the validity and legality of the aforesaid order on number of grounds including the meaning ground that he was not given an opportunity of hearing and the Commissioner did not grant adjournment for hearing his counsel who happened to be absent on that day. 4. In response to a pre-admission notice issued to respondents No. 1 and 2 the latter has filed parawise comments contesting the petition. On behalf of the private respondents affected by the admission of the petitioner, respondent No. 4 has filed a counter affidavit contesting the maintainability of the petition as well as injunction application. It is the case of these respondents that the petitioner, his father Lekhoo Mai and grand father are permanent residents of Deh Sari of taluka Thano Bola Khan, District Dadu and not permanent bona fide residents of District Thatta. It is maintained that the petitioner was born and he received his primary education at Sari District Dadu; that this entire family is settled at Sari; that the Certificate from Union Council Dhabeji obtained by the petitioner and his father are managed and obtained in the year 1993 for the purpose of obtaining P.R.C. and the Domicile Certificate of District Thatta. Primary Education Certificate of Lekhoo Mai, father of the petitioner has been filed tending to show that he was born at Sari District Dadu on 1.6.1932, admitted to Government Primary School, Sari on 1.4.1938 and left the School on 28.8.1945. It is urged that the petitioner's father Lekhoo Mai got issued his National Identity Card in his favour on 7.10.1978 showing his permanent address of Deh Sari District Dadu. Subsequently he got his original N.I.C. changed and revised NIC issued in his name in 1993 showing his permanent address at Dhabeji District Thatta. With regard to enrolment in Voter's list, it was stated that Lekhoo Mai, his wife and other family members' names are entered in the voter's list of Deh Sari District Dadu. A certificate from Mukhtiarkar, Thana Buta Khan to the effect that Lekhoo Mai S/0 Ghaloo Mai r/o Deh Shari talaka Thana Buta Khan is enrolled at Serial No. 358 in the electoral roll prepared in the year 1986-87 is produced. All other grounds were denied and disputed with an assertion that Deputy Commissioner Thatta had issued P.R.C. to the petitioner without verifying the record. 5. No affidavit-in-rejoinder was filed on behalf of the petitioner but Mr. Rasool Bux Palijo, advocate for the petitioner on 10.3.1996 arranged to file his affidavit in office without swearing it before the Commissioner for taking oaths to show that on 7.11.1994 he was present before the Commissioner Hyderabad when the hearing was adjourned to 12.12.1994 suo moto whereas on the subsequent hearing he could not appear before the Commissioner on account of his illness which was intimated to the Reader of the Commissioner. 6. Learned counsel for the petitioner reiterated the facts and grounds leading to this petition and contested with vehemence and all emphasis at his ommand that the petitioner though born at Sari, is ducated at Sari District Dadu and Dhabeji as well Gharo both in District Thatta and his grand father alongwith three other muslim co-sharers having purchased a piece of land in 1967 in Deh Sonhari taluka Mirpur Sakro; his father being enrolled as voter in the electoral rolls of Dhabeji District Thatta learned Commissioner was neither justified nor lawfully entitled to cancel permanent residence certificate issued in favour of the petitioner. He further submitted that by not providing an opportunity of hearing to him as counsel for the petitioner on the date of the impugned order learned Commissioner grossly violated the principles of natural justice by condemning him unheard. 7. Learned counsel referred to Rules 1971 promulgated by the Governor Sindh with effect from 20th July, 1971. Rule 1 lays down the requirements for eligibility of a person for admission to a Medical or an Engineering College or such other Educational or Technical Institution as may be notified by the Government from time to time to produce a certificate of his permanent residence from the District Magistrate of the area where he is permanently residing. Rule 2 lays down that a person desiring to obtain a Certificate of Permanent Residence shall make an application on a prescribed form to the District Magistrate of the area where he s ermanently residing. Rule 4 deals with the authority of the District Magistrate to issue the requisite certificate for the purpose of admission or recruitment to the public service after holding such enquiry as deemed necessary. Rule 5 postulates that a Certificate of Permanent Residence for the purpose of admission to an Educational Institution shall be issued in Form "C" while certificate for recruitment to the public service shall be issued in Form "D". Rule 6 provides the conditions for eligibility for grant of certificate in Form "C" and is relevant for the purpose of the controversy raised in this petition. For the sake of convenience it may be reproduced hereunder: 6. No person shall be eligible for grant of a certificate in Form "C" unless— (i) he was born in any area forming a part of Sind, and further— (a) in the case of a person of legitimate birth, at the time of his birth, his father was domiciled in Sindh, or if he was born after the death of his father, the later, at the time of his death, was domiciled in Sindh, or (b) in the case of a person of illegitimate birth, his Mother, at the time of his birth, was domiciled in Sindh; or (ii) in the case of a person who was not born in Sind-- (a) his parents are domiciled in Sind and have resided in Sind for a period of not less than three years, except those employed by Central Government and autonomous/semi autonomous Corporations in whose case three years residence may be waived; provided the official furnishes adequate evidence to prove that due to exigencies of service he was unable to fulfil that condition. (b) if his parents are not domiciled in Sind, he is domiciled in Sind, and further has either resided in Sind or has been educated in Sind for period of not less than 3 years; or (iii) his father or mother has been recruited to any specified service or post mentioned in clause (b) of sub-rule (2) of rule 2. 8. It was contended on behalf of the petitioner that permanent residence is quite different and distinguishable from present or temporary residence of a person and a District Magistrate is empowered to issue a certificate of permanent residence where a person is permanently residing. As word "Permanent Residence" has not been defined in Rules 1971, learned counsel referred to the following cases: 1. Miss Rahila Mumtaz v. Commissioner, Hyderabad (1984 CLC 53). 2. Syed Muzaffar Mi Jafri v. Commissioner, Hyderabad (1984 CLC 1352). 3. Kama! Nasir Khan, v. Commissioner, Hyderabad & 2 others (1984 CLC 1578). 4. Millat Sultan v. District Magistrate, Sanghar (1984 CLC 1862). 5. Shamsher Alt v. Commissioner Hyderabad & 2 others (1984 CLC 2,742). 6. Taj Muhammad v. Commissioner, Hyderabad & 7 others (1979 CLC 237). 7. Samina Nighat v. P.R.C. Appellate Tribunal & 3 others (PLD 1983 Karachi 324). 8. Shama Ahsan v. Province of Sindh (PLD 1984 Karachi 195). 9. Nayyar Mumtaz v. District Magistrate, Karachi (1993 MLD 840). 10. Abdul Sattar v. District Magistrate, Badin (1993 CLC 9). 11. Miss Faryal Wall v. District Magistrate & others (1993 CLC 60). 9. In the case at serial No. 1, Abdul Hayee Qureshi Acting C.J. (as he then was) took the view that rule 4 of Rules 1971 contemplates permanent residence as distinct from present residence or such residence as s adopted by exigency of circumstances in a person's life. Permanent residence means fixed, continuing, lasting, stable, enduring, abiding and not subject to change as distinct from temporary residence. Learned Chief Justice observed that concept of permanent residence as such is entirely different from concept of domicile. 10. In the case at serial No. 2, late Fakhruddin E. Shaikh, J. (as he then was) speaking for the Bench took the view that rule 4 requires the District Magistrate to hold such inquiry as he deems necessary and pass orders in respect of grant or refusing to grant P.R.C. according to his satisfaction. If he has committed any error of fact or law, then his order is liable to be corrected by the Commissioner under rule 8. In the case before the Bench District Magistrate and the Commissioner had given concurrent findings of fact that the petitioner and his father had left Thatta for good and settled at Hyderabad. This finding was based on the inquiry conducted by the District Magistrate and accordingly it was observed that the fact that one sister and one brother of the petitioner were at one time in the year 1975 granted P.R.Cs for Thatta, would not necessarily lead to the conclusion that their younger brothers and sisters were, by the mere fact of the earlier P.R.C. entitled to the grant of P.R.C. for the same District in the year 1981. 11. In the case at serial No. 3, the view expressed was that the place of birth of a person by itself will not at all be a proof that he was a permanent resident of that place particularly when question arises not at ime of birth but after some time and in this case after about 19 years. 12. In the case at serial No. 4, the view taken was that one of conditions for grant of permanent residence certificate under rule 6 was that applicant should have been born in any area forming part of Sindh and not that he should have been born in district for which certificate was required. While referring to Mehrun Nissa v. Appellate Committee (1978 S.C.M.R. 439) learned Judges pointed out that mere issuance of domicile certain to in favour of applicant or his father would not be sufficient to grant an application for P.R.C. although the fact of domicile certificate may be taken as one of the piece of evidence to be considered for determining the question ofP.R.C. 13. In the case at serial No. 5, the view taken in cases of Miss. Mehrun Nissa Baloch and Taj Muhammad's case was reiterated and reaffirmed highlighting the scope of permanent residence. 14. In Mehrun Nissa Baloch v. Appellate Committee (1978 S.C.M.R. 439) Hon'ble Supreme Court held that a Certificate of Domicile of a person's father is a piece of evidence in support of claim for present residence certificate of relevant district. It was further held that rule 6 of Rules 1971 merely curtails powers conferred on District Magistrate under rule 4 and a person even if a permanent resident of a district of Sind is not entitled to permanent residence certificate unless his case fell under 1971 Rules. It was urther held that rule 6 merely curtails powers conferred on District Magistrate under rule 4 and does not confer on District Magistrates any independent power to issue permanent residence certificate. 15. In Taj Muhammad's case following the rule laid down by the Supreme Court in the case of Mehrun Nissa Baloch v. Appellate Committee (1978 S.C.M.R. 439) Division Bench of this Court took the view at "domicile" and "residence" in the context of the rules are not the words of nterchangeable meaning. It has been held that "residence' implies some degree of permanence, although the word "residence" may mean very different things in different context but applied to natural persons as distinguishable from juristic persons like corporations, residence depends on personal facts. Place of birth, nationality and allegiance are not the tests nor is domicile. Voluntary choice and habitual and repeated action are mainly material, such as making a home, keeping an establishment, pursuing a settled object in or at a particular place. Referring to Halsbury's Law of England (Third Edition, Volume 20, page 392) their Lordships proceeded to lay down that requirement of rule 4 is not only residence but "permanent residence". The word "permanent" is defined in Black's Law Dictionary to mean fixed, continuing, lasting, stable, enduring, abiding, not subject to change. Generally opposed in law to "temporary", but not always meaning "perpetual". In the same Dictionary the expression "permanent abode" has been defined to mean a domicile or fixed home which the party may leave as his interest or whim may iddictate, but which he has no present intention of abandoning. 16. In Samina Nighat's case a Division Bench of this Court held that Permanent Residence Rules are not statutory rules but administrative instructions for guidance of authorities concerned for purpose of determining eligibility of candidates applying for seats in Medical Colleges in conformity with quota allocated by prosecutes of colleges. Such rules were issued in exercise of executive authority vested in Government to frame policy which rules still hold the field. Division Bench repelled the contention that the question of permanent residence being connected with the citizenship a subject of Federal Legislative List, therefore the Governor was not competent to frame rules in respect of permanent residence. The Bench observed that the question of citizenship is quite independent of permanent residence. It is the subject of domicile which can be said to be ancillary to citizenship that is why the rules regarding issuance of Domicile Certificate are issued by the Central Government under the Citizenship Act. In a separate note Ajmal Mian, J. (as his Lordships then was) concurring with the conclusion and reasonings suggested that disputes relating to Permanent Residence Certificate should be settled before admission to a professional college. His Lordships suggested valuable steps conducive for settlement of such disputes for consideration of the Provincial Government. 17. In the case at serial No. 8, the High Court dealt with the question of waiver of limitation and held that it was not permissible. 18. In the case at serial No. 9, the District Magistrate had cancelled the P.R.C. issued by him. It was ruled that he can not review his order except in case of fraud or misrepresentation and where there is also an error on the face of order itself. 19. In Abdul Sattar Siddiqui's case with reference to Section 21 of the General Clauses Act it was laid down that District Magistrate could cancel P.R.C. if same was issued on practising fraud. 20. Similar view was reiterated in Miss. Faryal Wali's case by another Division Bench of this Court but it is not relevant to the facts of the case in hand. 21. On the other hand, Mr. Jhamat Jethanand, learned counsel for contesting respondents submitted that respondents having produced Birth Certificate of Lekhoo Mai father of the petitioner at Sari, District Dadu in 1932; his academic career in Government Primary School Sari upto 1945, his original National Identity Card showing the address of his residence at Sari in District Dadu and obtaining a residence certificate in 1993; averments in the petition that the petitioner's father owned a shop at Sari which did not run well, mother of the petitioner staying with her husband at Sari as well as Dhabeji; insertion of the petitioner's father's name in the electoral roll of Deh Sari, District Dadu as certified by Mukhtiarkar, Thana Bula Khan and birth of the petitioner with primary education at Sari would tend to show that in fact the father of the petitioner was permanently settled at Sarr in District Dadu and the documents produced in support of the petition clearly tend to show that original abode of the petitioner right from the time of his ancestors was at Sari District Dadu and these were manipulated and business shown at Dhabeji District Thatta managed with a view to obtain Domicile Certificate and P.R.C. against the quota reserved for bona fide permanent residents of District Thatta. 22. The submission of the learned counsel is not without substance. Documents placed on record as well as the surrounding circumstances reflect the intention, to settle and permanent residence of the petitioner and his father at Sari, District Dadu atleast upto October, 1993 when the documents showing nexus of the petitioner's father with his business at Dhabeji District Thatta were obtained to secure P.R.C. of District Thatta. Obviously petitioner's father was born at Sari. He was educated over there. Initial NIC was obtained by him showing his residence at Sari which was not revised on 23.10.1993 just to make out a case for securing a domicile certificate with intent to obtain easy admission of the petitioner in a professional college on the basis of permanent residence certificate for District Thatta. To my mind photo stat copies of entries in the record of rights tending to show the purchase of a piece of land measuring 28 ghantas by Ghanoo Mai grand father of the petitioner in partnership with Haji Bux and Muhammad both sons of Lutuf Ali and Mst. Amanat daughter of Lutuf Ah' for a consideration of Rs. 300/-, mutation in the record of rights in favour of Lekhoo Mai and his brothers after the death of Ghanoo Mai in 1988, appearance of the petitioner at Elementary and Intermediate Grade Drawing Examinations in 1989 and 1990 at Thatta Centre and passing of Secondary School Certificate from the Board of Intermediate and Secondary Education, Hyderabad through Government Boys High School, Gharo, residential certificate by Chairman, Union Council Dhabeji are not conclusive and substantive evidence of permanent residence of the petitioner and his father at Dhabeji within the territorial limits of District Thatta. As regards entry in the electoral roll for Dhabeji town while the petitioner has filed photocopy of a entry in favour of Lekhoo Mai in the electoral list for Dhabeji town, respondents have produced a certificate from Mukhtiarkar Thana Bula Khan certifying that Lekhoo Mai S/O Ghanoo Mai resident of Sari taluka Thana Bula Khan was enrolled at serial No. 358 in the electoral roll prepared in the year 1986-87 for Sari taluka Thana Bula Khan. While certificate produced by the petitioner is dated 28.9.1992, the certificate issued by Mukhtiarkar Thana Bula Khan is dated 13.7.1994 counter certificate or original record with regard to the electoral rolls for Dhabeji District Thatta was produced by the petitioner to rebut the certificate issued by Mukhtiarkar Thana Bula Khan. At any event, this being a disputed question of fact cannot possibly be resolved in the exercise of constitutional jurisdiction. 23. There is another aspect of the matter, namely, the grievance of the learned counsel for the petitioner that the Commissioner Hyderabad while deciding the appeal condemned the petitioner unheard as on the date of impugned order though the petitioner was in attendance, Mr. Palijo was unable to appear before the Commissioner. It may be observed that by the impugned order Commissioner had not only cancelled the P.R.C. issued to the petitioner but also P.R.C. issued in favour of Muhammad Saqib, Arshad Hussain, Dalip Kumar as well as Mudassir Hussain. Copies of the court diary from the office of the Commissioner have been produced to show that on the earlier hearing i.e. 7.11.1994 the petitioner was present alongwith his counsel Mr. Rasool Bux Palijo but Mudassir Hussain and his counsel Pir Tariq Ahmed were ahsent and the hearing was adjourned to 12.12.1994. As observed earlier on this date though the petitioner was in attendance his counsel remained absent without any intimation. Now the main grievance of the learned counsel is that owing to his absence Commissioner ought to have adjourned the hearing to enable him to argue out the case and thereby Commissioner violated the principles of natural justice. There is no doubt that right of hearing is a valuable right available to a party and principles of natural justice are to be read in every statute even if not expressly provided for. The proceedings before the Commissioner, however, are administrative in nature and stretching the nature of such proceedings to quasi judicial it would be too far fetched to hold that the learned counsel was entitled to indulgence of adjournment as a matter of course. Needless to emphasis, these proceedings are required to the expeditiously concluded so that valuable time of the students is not unduly wasted and spoiled and admissions are finalized within time. If the learned Commissioner did not adjourn the proceedings in the absence of any prayer by the petitioner I do not think that he acted without jurisdiction or in contravention of the principles of natural justice A perusal of the court diary maintained by the Commissioner reveals that out of eight dates of hearing commencing from 18.7.1994 to 12.12.1994 Mr. Palijo was presently only on 18.9.1989 and 7.11.1994 whereas on all other hearings he remained absent. From the case diary it further transpires that on 18.9.1994 hearing was adjourned for the reason that representative of the District Magistrate's office was absent and the Commissioner was pre-oceupied in a meeting whereas on 7.11.1994 hearing was postponed owing to the absence of appellants and their counsel. It may be further pointed out that on this date of hearing respondent Mudassir Hussain as well as his counsel Pir Tariq Ahmed were also absent which necessitated the adjournment of hearing. In the circumstances, it cannot be held that the Commissioner acted in hot haste or deprived the petitioner of right of hearing. For the absence of his counsel he should better thank himself rather than to blame respondent No. 1. In this context, learned counsel has referred to the following cases: 1. Arideshir Cowasjee vs. Multiline Associates (PLD 1993 Karachi 237). 2. Nusratullah Chaudhry v. Government of Punjab (PLD 1994 Lahore 353). 3. Pakistan Telecommunication Corporation vs. Abdus Sattar (1995 M.L.D. 1563). 4. Pir Sabir Shah v. Shad Muhammad Khan (PLD 1995 S.C. 66). 24. In the case at serial No. 1 while referring to earlier law on the subject it was held that in all proceedings by whom so ever held, whether judicial or administrative the principles of natural justice had to be observed if the proceedings might result in consequences affecting "the person or property or other rights of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness. There is no cavil with the aforesaid proposition of law the fact remains that the petitioner was duly served with notice of the appeal, he had appeared before the authority in response to the notice and was provided an opportunity of hearing. In fact he was heard in person and there is nothing on record to indicate that he himself or his counsel had desired an adjournment of hearing even after a lapse of seven hearings. It is, therefore, difficult to subscribe to the view of the learned counsel that the petitioner in this case was condemned unheard. 25. In the case at serial No. 2, learned Single Judge of the Lahore High Court reiterated the aforesaid rule and there can be hardly any dispute with the proposition of law as aforesaid. 26. In the case reported as P.T.C. v. Abdul Sattar, Shafi Muhammadi, J. (as he then was) dealing with the provisions of Order VII rule 11, Order VII rule 13, section 11 and Order II rule 2 CPC expressed the view that technicalities cannot be permitted to defeat the rights of the contesting parties or to over ride the principles of natural justice. 27. In Sabir Shah's case, apart for a number of issues Hon'ble Supreme Court did not approve of the plea of the learned counsel for the appellant that the question of disqualification was decided by a better designated forum which included the Chief Election Commissioner for the reason that there was deprivation of jurisdiction of the competent authority, namely, the Chief Election Commissioner. While there can be no cavil with the principle of law enunciated by the Supreme Court, I do not think how the principle laid down in the disqualification case is relevant to the facts of this petition. Indeed the petitioner could not insist to be represented through the lawyer of his choice as a matter of right and the could not dictate the authority to postpone the hearing by reason of absence of his counsel particularly when no prayer for adjournment was put forward. Since the petitioner has been heard at great length by this Court through his counsel on facts as well as law he cannot be heard to say that the impugned order is liable to be set aside or that it may be remanded to the Commissioner for rehearing and passing a fresh order in the absence of any inherent defect or infirmity in the impugned order. There is no gain saying that the Commissioner had taken into consideration all the facts and circumstances of the petitioner's case and examined the record available before him as such he cannot be said to have acted without lawful authority or exceeded the sphere of his authority. 28. On scrutiny of the case law referred at the bar and relied upon by the counsel for private respondents as well following principles can be spelt out: 1. that the petitioner must be a permanent resident of an area for which he claims permanent residence certificate. 2. that the domicile of his father, permanent place of abode, primary and secondary education at the place, exercise of right of franchise in the election are relevant considerations for determining permanent residence. 3. temporary absence from the permanent place of residence would not a petitioner to obtain P.R.C. 4. that there ought to be concrete evidence of the petitioner's permanent settlement at the place for which P.R.C. is asked for. 29. Judged in the light of the aforesaid principles scrutiny of the material on record and after giving serious consideration to the facts pleaded and agitated at the bar natural and irresistible conclusion that can be fairly drawn is that the P.R.C. issued in favour of the petitioners was rightly and justly cancelled. No exception can be taken to the impugned order which is unexceptionable. 30. For the aforesaid facts and reasons, there is non substance in this petition which is accordingly dismissed in limine. 31. With the dismissal of the petition, interim order directing maintenance of status quo by respondent No. 2 stands recalled and both the applications are disposed of as infructuous. (B.T.) Dismissed in limine.

PLJ 1996 Karachi 655 PLJ 1996 Karachi 655 Present: rana bhagwan das, J. DR. RIAZ MUSTAFA and others-Appellants versus MUHAMMAD ABDUL AZIZ-Respondent F.R.A. No. 112 of 1985 decided on 3.3.1996. (i) Sind Rented Premises Ordinance, 1979 (XVII of 1979)— —Tenant-Ejectment of-Petition dismissed by Rent Controller-Challenge to—No agreement of tenancy produced by either side-Presumption as to date of payment of rent-Held: In the absence of the agreement of tenancy of date mutually fixed for payment of rent, rent for the month of June would fall due for payment within 60 days after close of June i.e., on or about 29th August while rent for the month of July would be payable on or about 30th of September. [P. 657] A (ii) Sind Rented Premises Ordinance, 1979 (XVTl of 1979)-- —Ejectment of tenant-Petition dismissed-Challenge to—Whether practice of lump sum payments of rent amounts to default-Land lord accepted delayed payment of rent by tenant at various occasions-No written tenancy agreement produced by either party-Held: Under provisions of rent laws, a tenant is under a statutory duty to pay rent to land lord every month within 15 days of date fixed for payament of rent and in absence of any agreement as to date for payment of rent within 60 days of month when rent falls due for payment-Mere fact that landlady had been generous enough to accept accumulated rent for four months at a time would not mean that respondent was licenced to continue this practice at his own whims nor did it override statutory provisions of law-Appeal allowed. [P. 658] B 1980 SCMR 506, 1971 SCMR 598, 1975 SCMR 355, 1983 SCMR 1205 and PLD 1984 SC 32 ref. Mirza Abdul Rashid, Advocate, for Appellants. Muhammad Younus, Advocate, for Respondent. Date of hearing: 29.1.1996. judgment Appellants who are the legal representatives of deceased landlady Mst. Abida Mustafa are aggrieved by the order dated 8.12.1984 passed by the learned Controller Karachi (Mr. Gul Muhammad Bhatti), rejecting her prayer for ejectment of the respondent from Bungalow No. 10 Muslimabad Cooperative Housing Society. 2. Respondent is the tenant of the appellant (since dead) in the demised premises since 1959. Rate of rent for the last more than 21 years is Rs. 1,300/- per month and is not in dispute. He has been running Grand Fox School in the demised premises since the inception of the tenancy. Eviction of the respondent was sought on the grounds firstly that there was a default in payment of rent for the period from June to September, 1974 and secondly that respondent had committed acts likely to impair utility and value of the building by making additions, alterations and raising construction without prior permission of the appellants as well as KBCA. 3. Ejectment was resisted by the respondent who filed parawise written statement stating that the landlady had been insisting for enhancement of rent which was raised to Rs. 1350/- per month with effect rom June, 1974. It was further asserted that the respondent had incurred expenses on repairs of the premises with the consent of the deceased appellant which amount was adjusted towards the arrears of rent. It was for this reason that the appellant had signified her consent by sending rent receipt on 23.5.1974 for a sum of Rs. 9.100/- as rent for the months of November, 1973 to May, 1974 (seven months). It was further pleaded that the appellant lived at Lahore and could not collect the rent every month nor had she appointed any rent collector at Karachi for collection of rent. For this reason, the rent amount was sent to her periodically after interval of a few months according to her own desire and there was a practice to receive the rent in lumpsum which practice was adhered to in accordance with the wishes of the appellant. 4. On the above pleadings of the parties following issues were struck. 1. Whether the opponent is wilful defaulter in the payment of rent? 2. Whether the opponent has caused any damage to the premises and has made additions and alterations without the permission of the applicant? 3. What should the order be? 5. In support of her case appellant (since dead) examined Dr. Riaz Mustafa, her son and attorney and Sharif Ahmed Warraich, Architect Engineer. On the other hand respondent examined himself in rebuttal. 6. On consideration of the evidence, learned Controller decided both issues against the appellants and dismissed the application giving rise to the instant appeal. 7. From the pleadings of the parties and evidence on record, it transpires that there was an agreement of tenancy dated 17.10.1959 between the parties but for the reasons best known to them none of them has bothered to produce the same in evidence. It further seems that the said agreement was valid for a period of three years and the rate of rent was revised from time to time by mutual consent of the parties. In the absence of the terms and conditions of tenancy before me. I would proceed on the assumption that after the expiry of agreement tenancy continued according to oral understanding between the parties. I would thus be entitled to -assume that there was no date fixed or payment of monthly rent. 8. Learned counsel for the appellants contended that the rent for the months of June 1974 to October, 1974 was remitted through cheque dated 2.10.1974 which fact by itself was sufficient to establish default in payment of rent on the part of the respondent. In the absence of the agreement of tenancy or the date mutually fixed for payment of rent, rent for the month of June would fall due for payment within 60 days after the close of June i.e. on or about 29th August while the rent for month of July would be payable on or about 30th of September. As observed earlier rent was, however, remitted through cheque dated 2.10.1974 far beyond the period permitted by the statute. 9. Case of the respondent, however, is that the deceased landlady living at Lahore having no rent collector at Karachi, there was a practice of collection of rent in lumpsum after the interval of a few months. According to him he used to tender rent as per practice and desire of the landlady by way of cheque in lumpsum which was remitted to her at Lahore and she accepted the cheque sent by him even after the institution of the rent case. In paragrpah 3 of his affidavit-in-evidence, he cited nine instances to show that rent was remitted through cheques from time to time. Of these instances, first five instances pertain to the period prior to June 1974 whereas as observed earlier rent for June 1974 to October, 1974 was remitted through cheque dated 2.10.1974. Rent for the month of November, 1974 onwards was remitted well within time and this circumstance does not support the plea of the respondent that there was a practice of payment of rent in lumpsum at the desire of the landlady. 10. No doubt, appellant Riaz Mustafa in his evidence admitted that his mother died in 1975 and during her life time he used to collect rent and carry out the correspondence on her behalf, he made a grievance that the respondent did not pay rent regularly. He stated that some times the respondent used to pay rent every month regularly and some times he used to pay it after four or five months and he had been writing and telephoning hini for payment of rent regularly. 11. Under the provisions of the Rent Laws, a tenant is under a statutory duty to pay rent to the landlord every month within 15 days of the date fixed for payment of rent and in the absence of any agreement as to date for payment of rent within 60 days of the month when the rent falls due for payment. Mere fact that landlady had been generous enough to accept the accumulated rent for four months at a time would not mean that the respondent was licenced to continue this practice at his own whims nor did it override the statutory provisions of law. This question came up for onsideration before the Supreme Court in Abdul Rashid v. Saleh Muhammad (1980 SCMR 506) where Aslam Riaz Hussain, J. speaking for the Bench held as under: "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West Pakistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions, cannot be said to have given rise to any practice whitiing down the requirement of law that the rent has to be paid by the tenant by the 15th of every month." 12. Similar view was expressed in S. Riaz All v. Shabbir Ahmed Khan (1971 SCMR 598) laying down that a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent. 13. In Muhammad Hasan & Co. vs. Mahmood Ahmed Khan (1975 SCMR 355) where the tenant had taken up the same position, namely that a practice has grown up to pay rent in lumpsum after certain interval it was observed that "in any event such a practice was contrary to section 13 of the est Pakistan Urban Rent Restriction Ordinance and, therefore, the former could not overrule the law." 14. In Civil Petition No. K-16 of 1979 re-Tor Muhammad Jano v. TahirAli and others while dismissing the petition Supreme Court laid down the following dictum: "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of lie rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-oocupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation. The tenant cannot be allowed to take advantage of bis own negligence or of his having of deliberate non­ payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent" 15. Judgment in the case of Abdul Rashid vs. Saleh Muhammad was followed in subsequent case of Muhammad Qasim vs. Mehrban Alt (1983 SCMR 1205) and identical view was expressed in Mrs. Alima Ahmed v. Amir Alt PLD 1984 SC 32). 16. In the last mentioned case, High Court had held that though it is a statutory duty of a tenant to pay rent to landlord in terms of section 13(2)(i) of Ordinance, but if a landlord by his representation/ conduct/omission leads to a tenant to believe that the time mentioned in above provision of Ordinance is not to be adhered to, and thereafter the landlord wishes to enforce above prevision strictly, in that event, landlord should first put tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of above provision or in any case ejectment proceedings in such a case should be preceded with service of a notice calling upon tenant to clear arrears of rent within reasonable time specified therein. It was held by the Supreme Court that Court ought to apply and interpret provision of law and not to superimpose a new procedure extraneous to such law. It was further observed that the Ordinance protects tenants against eviction and enhancement of rent, thereby curtailing plenary power of landlord to deal with his property and tenant thereof. Promptness in payment of rent with option to tenant to deposit rent with Rent Controller being condition precedent for enjoying protection, same cannot be relaxed or diluted on grounds of economic well being, fairness or in name of justice. 17. It may be observed from the above dictum that the S preme Court did not approve of the view taken by the High Court yet Mr. Mirza, learned counsel for the appellants referred to letter dated 26.10.1973 Ex. 1/6 addressed to the respondent taking an exception to the adjustment of Rs. 950/- spent by him at his discretion. By this letter the respondent was reminded that according to the agreement he had to pay monthly rent in advance by 7th of each month while he was not remitting the same in time inspite of repeated demands. Be that as it may, from the evidence on record coupled with the admission of the respondent that the disputed premises were let out to him on monthly rental basis and that the rent was payable in advance, I am of the considered view that there was a wilful and deliberate default on the part of the respondent in remitting the rent atleast for the months of June and July, 1974. Learned Controller by taking a compassionate view to the contrary acted illegally which cannot be sustained at law. 19. As to the impairment of utility of the rented premises, there is categorical admission by the respondent himself that he had raised construction on the up floor though temporary. According to him he had constructed 3 or 4 rooms without any permission (of the appellants) either in writing or oral of the landlord. He added that it being temporary he did not feel it necessary to have permission. I am of the view that by making additions alterations in the house and raising construction in the building without the permission of the deceased landlady he has rendered himself liable to eviction. I am further fortified by yet another admission of the respondent that outer rooms are built of cement blocks in two rooms whereas remaining two rooms were made of tin plates. Besides there is unrebutted and unchallenged evidence of Architect Sharif Ahmed before the Controller which tends to show that the respondent had raised construction of rooms with C.B. wall and sheet roof in the open compulsory space and on the top of roof the construction was in progress. This witness further stated that the said construction was unauthorised and he had inspected the site at ~the instance of the appellants in pursuance of notice dated 3.9.1979 issued by Assistant Controller of Buildings, Master Plan Department an Authority constituted under the Sindh Building Control Ordinance. A copy of the notice Ex. 2/1 is also on record which materially and substantially supports the case of the appellants. Needless to point out neither the Architect was cross-examined nor was the authenticity of the.notice disputed before the Controller. This circumstance alongwith the clear and can did admission by the respondent is enough to conclude that the latter made admissions and alterations to the property and raised constructions unauthorisedly and without the permission of the appellants I would thus conclude that the learned Controller acted illegally in brushing aside this piece of evidence and dismissed the eviction application wrongly which cannot be upheld. 20. For the aforesaid facts and reasons, I allow this appeal with costs and set aside the impugned order. Respondents are allowed six months time subject, however to deposit of rent, to vacate the premises and make alternate arrangements. (S.R.) Appeal allowed.

PLJ 1996 Karachi 661 PLJ 1996 Karachi 661 Present: rana bhagwan das, J. COLLECTOR OF CUSTOMS KARACHI and another-Petitioners versus ABDUL RAZZAK-Respondent Civil Revision No. 8 of 1992 dismissed on 1.4.1996, (i) Customs Act, 1969 (IV of 1969)-- —Higher assessment of Customs duty by Customs Department—Challenge to in Civil Court-Suit decreed by trial court and upheld by Appellate Court-Challenge to~Customs Authority assessed goods at higher price than price declared under invoice and Bill of Entry, Authorities neither issued any letter nor made any enquiry from exporter, rather other exporters were consulted-Held; Applicant did not act within scope of their authority and they transgressed limits of their jurisdiction in assessing goods at a higher rate without any lawful justification-Appeal/ petition dismissed. [P. 665] A (ii) Customs Act 1969 (IV of 1969)- —Jurisdiction of Civil Court to entertain Customs case-In the event of excess assessment of imported goods-Remedies by way of appeal and revision are provided under Customs Act-Respondent without availing such remedies straightaway rushed to civil court—Validity of—Held: It is admitted that there is no specific provision barring jurisdiction of Civil Court and amendment by insertion of sub section (2) in section 217 of the Customs Act barring jurisdiction of Civil Court by Act No. VII of 1992 would not govern present case in which cause of action arose in September 1990 as amendment would not operate retrospectively-Civil Court being a Court of ultimate jurisdiction, its jurisdiction being all embracing cannot be ousted by intendment-Held further: Even if jurisdiction is so excluded Civil courts have jurisdiction to examine into cases where provisions of Act have not been complied with or statutory tribunal has not acted in conformity with fundamental principles of judicial procedure—Petition dismissed. [Pp. 665 & 666] B, C Mr. Q.M. Rasheedi, Advocate for Appellant Mr. Haider Iqbal Wahniwal, Advocate for Respondent Date of hearing: 30 and 31-1-1996. judgment Both these revision applications under section 115 CPC are directed against the concurrent findings of fact by the trial Court as well as the appellate Court decreeing two suits brought by the respondent for declaration, permanent injunction and recovery of excess amount with interest at 14% in respect of two consignments imported by him impugning the higher assessment of customs duty by enhancing the normal price of the goods by the Customs Authorities. 2. Respondent imported Copra Estate Nuts and Desiccated Coconut from Sri Lanka sometimes in September, 1990. He submitted shipping documents manifesting the value of the goods but the Appraising Officer of the Customs did not accept the declared value of the goods and without prior notice to the respondent assessed the duty at higher rate. Respondent cleared the goods after payment duty on both the consignments and brought two separate suits before the Civil Court seeking a declaration to the effect that the applicants had illegally and malafide fixed higher rate on imported items and wrongly charged customs duty thereon. He prayed for a permanent injunction restraining the applicants from charging higher rate on the goods in excess of the normal value declared in the import documents. In both the suits a definite amount charged in excess of normal assessment was claimed alongwith interest at the rate of 24% per annum. 3. Applicants resisted both the suits and claimed having acted within the scope of the authority. They challenged the jurisdiction of Court as well as maintainability of the suit. The main plea raised by applicants before the trial court was that the respondent having not exhausted remedies available to him under the provisions of the Customs Act he could not invoke the jurisdiction of Civil Court which was barred by law. 4. On facts, it was stated that the price of imported goods as claimed ~~"by an importer could not be accepted as a normal price to fetch the customs duty. The applicants valued the goods of the plaintiff at the rate of Rs. 15,300/- per metric ton during the period as this rate was approved by the Karachi Kiryana Merchants Association. According to them, plaintiff being member of the said Association obtained the release of his consignment and after accepting the valuation of customs duty algngwith other importers failed to» file any .evidence of illegal taxation at the rataof Rs. 16,000/- per metric ton. It was maintained that the value of goods was correctly fixed in consultation with the representatives of Karachi Kiryana Association. 5. On the pleadings of the parties, following issues were settled in each of the suits: 1. Whether the suit is not maintainable 2. Whether rate of imported item fixed with the consent of Kiryana Merchant Association was binding upon the plaintiff? 3. Whether there was any justification to disbelieve the invoice L.C. bill of entry for taking customs duty on actual rate? 4. Whether plaintiff is entitled to receive back Rs. With interest from the defendants? 5. Whether plaintiff had exhausted departmental remedy? 6. In support of his case respondent examined himself and produced Bill of entry Ex.P/5 and Invoice Ex. P/6 while the applicants examined Bashir Ahmed, Appraiser in the Collectorate of Customs. 7. Upon assessment of the relevant evidence and hearing the parties' counsel, trial court decreed suits No. 669/1990 and 671/1990 on 13.7.1991 which were impugned in Civil Appeal Nos. 45/1991 & 46/1991 before an Additional District Judge but without any success. It is in these circumstances that the aforesaid revision applications were filed. 8. Mr. Q.M. Rasheedi, learned counsel for the applicants vehemently contended that in the event of assessment of the goods imported by the respondent by the customs official, remedies by way of appeal and revision are provided under the Customs Act but the respondent without availing these remedies straightaway rushed to the Civil Court after having the goods cleared on payment of duty. On the other hand, Mr. Haider Iqbal Wahniwal, learned counsel for the respondent submitted with vigour and all emphasis at the command that the applicants having acted in violation of the statutory provisions and assessed the goods at higher rate than the normal value of the goods declared by the respondent without nay prior notice their act is always subject to judicial review and scrutiny by the Civil Court which is a competent court of general jurisdiction. 9. There may be no cavil with the proposition that section 193 Customs Act provides for an appeal to Collector (Appeals) by a person aggrieved by any decision or order passed under the Customs Act within thirty days of the date of communication to him of such decision or order, whereas section 195 provides the remedy by way of revision before the Collector of Customs and the Board of Revenue. The fact however remains that in fact, no speaking order was passed in this case and none was communicated to the respondent as such. In the Bill of Entry in Suit No. 669/1990 the respondent declared the normal price of the goods at the rate of Pak Rs. 14,300/- per metric ton whereas the Appraiser customs assessed he goods at Pak Rs. 16,000/- per metric ton under his signature dated 20.9.1990 without assigning any reason. In Suit No. 671/1990 respondent declared the value of the goods at the rate of Pak. Rs. 9,000/- per metric ton but the customs official assessed the goods at the rate of Pak. 10,100/- per metric ton under his signature dated 24.9.1990 once again without assigning any reason. 10. Under section 25 of the Customs Act, the value of any imported goods shall be taken to be the normal price that is to say, the price which they would fetch, on the date referred to in section 30, on a sale in open market between a buyer and the seller independence of each other. Sub­ section (2) lays down three assumptions on which the normal price of any imported goods shall be determined. Under sub-section (3) where the imported goods to be valued are manufactured in accordance with any patented invention or are goods to which any protected design has been applied or are imported under the foreign trade mark or imported for sale, other disposal or use under the foreign trade mark, the normal price shall be determined on the assumption that it includes the value of the right to use the patent, design or trade mark in respect of the goods. Sub-sections (4), (5) and (6) and Explanations attached thereto lay down the guide lines for the custom authorities for valuation of the imported goods. The date referred to in section 30 is the date on which a bill of entry is entered under section 79 of the Act or the date on which the manifest of the conveyance is delivered. 11. In Messrs. Farooq International vs. Chief Controller of Imports and Exports (1985 CLC 1781) a Division Bench consisting of Naimuddin and Saleem Akhtar, JJ. took the view that no party can be condemned on the basis of inquiry made behind his back and without his knowledge. It was observed that for purpose of levy of duly the customs authorities are required to determine the value of the goods. A close scrutiny of section 25(1) and (2) makes it clear that the price which an independent purchaser would have paid on the date specified under section 30, in the country where he purchased it, will be taken to be normal price of the goods. Elaborating legal position further Division Bench observed that in any event customs authorities are expected to assess the value of goods and determine the normal price according to law. If the authorities have been valuing the goods of the same nature at particular rate for sufficiently long period then unless some new factors have intervened or the price in the country from where the goods were purchased have changed, it is just and proper that all other imports should be given similar treatment 12. Aforesaid iew was followed in Indus Automobile (Pvt.) Ltd. v. Central Hoard of Revenue and 2 others (PLD 1988 Karachi 99) laying down the principle that when customs authorities want to assess certain price as the normal price, on the basis of some material, in terms of section 25 read with section 30 of the Act other than what has been declared by the importer they are bound to show such material to the importer in order to provide him an opportunity to meet the same. 13. Dealing with appeals from the orders passed by Central Board of Revenue relating to action taken under sections 39 and 167 items (8) and (9- B) Sea Customs Act 1878 (since repealed) Supreme Court of Pakistan in the case of Messrs Eastern Rice Syndicate vs. Central Board of Revenue (PLD 1959 S.C. 364) observed that the "normal price" (as ascertained under section 30) is related to market value at the port of entry is Pakistan, and is of no relevancy in determining the true export price paid by the importer in the country of origin. A discrepancy between the "normal price" as fixed by the authorities, in complete honesty, and the declared invoice price must always exist That is a proposition whose universal truth in all such cases can hardly be questioned. And it is equally unexceptionable that no merchant can be rendered subject to penalties merely on account of such a discrepancy. If it is claimed by the authorities that he has made a mis-statement of price in bis invoice, that cannot be established otherwise than by furnishing proof of the prevailing commercial price in the country of origin at the time of import Without first making an attempt to furnish such evidence, it is impossible to see how the making of an untrue statement within the meaning of section 39 and the consequent mischief of item (9-B) in section 167 can be imputed to any one. 14. An analysis of the provisions of Customs Act particularly section 25 tends to show that on the principles and guidelines contained therein, customs authorities are authorised to assess the goods at a price higher than the normal price declared under the invoice and the bill of entry but it is necessary in all such cases to associate the importer or the consignee with the inquiry while ascertaining actual price of the goods at which the same are assessed. For this purpose, it may be necessary to call upon the importer by way of a notice to rebut the material or the evidence available with the authorities justifying the assessment of the goods at a higher value. 15. In the present case it is admitted that neither any inquiry was conducted nor was the respondent called upon to show cause against the proposed enhanced value of the goods by the customs authorities. This position is deducible from the evidence adduced by the parties and particularly clear and can did admission by applicants' witness to the effect that the customs had made inquiry from the exporters about the price of disputed goods who disclosed excess price than mentioned in the bill of entry, but no letter of exporter was produced. He conceded that the authorities neither issued any letter nor made any inquiry through telephone from exporters but they had contacted other exporters. It was admitted that no notice in writing was issued to the respondent before assessing the value of the goods at a rate higher than mentioned in the bill of entry. It is thus established that the applicants did not act within the scope of their authority and they transgressed the limits of their jurisdiction in assessing the goods at a higher rate without any lawful justification. The action taken by the applicants in the circumstances cannot be said to have been taken under the provisions of the Act and it is evident that they acted beyond the scope of their authority. In this view of the matter, respondent could not be compelled to invoke the jurisdiction of appeal and revision under the Customs Act and he was legally entitled to seek his remedy before the Civil Court, the act complained of being illegal and without jurisdiction. 16. As to the bar relating to jurisdiction of the Civil Court, it is admitted that there is no specific provisions barring the jurisdiction of the Civil Court and the amendment by insertion of sub-section (2) in section 217 of the Customs Act barring jurisdiction of the Civil Court by Act No. VII of 1992 would not govern the present case in which the cause of action arose in September, 1990 as the amendment would not operate retrospectively. The Civil Court being a Court of ultimate jurisdiction, its jurisdiction being all embracing cannot be ousted by intendment. 17. In M/s Habib Industries Ltd. v. Pakistan through the Collector of Customs Chittagong (PLD 1962 S.C. 83) dealing with a case under sections 188 and 198 of Sea Customs Act 1878, Supreme Court repelled the bar of jurisdiction of a Civil Court which cannot be expressed in better words than the Supreme Court itself. Relevant para at page 87 of the report reads as under: "Although the special jurisdiction of the Customs Authorities to deal with the question of assessment of salestax cannot be doubted, and the machinery provided for the purposes by the Sea Customs Act is elaborate and is expressed so as to achieve finality, yet that finality (S. 188) is only to be understood within the limits of the statute, and those special provisions cannot by implication have the effect of excluding the general jurisdiction of the Civil Courts, the more so as the Act itself does not expressly stand in the way of that jurisdiction, but merely, in section 198, prescribes certain conditions subject to which it will be exercised in particular cases." 18. On the other hand, learned counsel for the applicants relied upon a Privy Council Judgment in the case of Secretary of State vs. Mask & Co. (AIR 1940 Privy Council'105) which is a case under sections 182 and 188 of Sea Customs Act, 1878. To my mind this judgment does not improve the case pleaded by the applicants as it specifically lays down a rule that the exclusion of jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicity expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 19. Learned counsel also referred to unreported judgment by Syed Haider Ali Pirzada, J. (as he then was) in Revision Applications No. 259 and 260 of 1988 decided on 30.4.1989 taking the view that sections 195, 196 and 217 of Customs Act provide a complete code to a person aggrieved to seek redress in case of his grievance by decisions of customs authorities. Learned Judge further observed that jurisdiction of Civil Court was thus intended to be excluded. With utmost respects for the view taken in the above case, it may suffice to say that in the said case plaint had been rejected by the trial court as well as the appellate court because no order of assessment had been produced. In view of distinguishable facts of this case, I am not inclined to follow the view taken in the earlier case. 20. For the aforesaid facts and reasons, I am clearly of the view that both the courts below neither committed any illegally nor acted with material irregularity resulting in miscarriage of justice so as to warrant an interference in the exercise of revisional jurisdiction of this court Both the revisions are, thus without any merit and accordingly dismissed with costs. (S.R.) Appeal dismissed.

PLJ 1996 Karachi 668 PLJ 1996 Karachi 668 Present: shafi muhammadi, J. MIRZA SIRAJ-UD-DIN--Appellant versus ABDUL GHAFFAR-Respondent Ilnd Appeal No. 04 of 1994, accepted on 27-9-1995. (i) Civil Procedure Code, 1908 (Act V of 1908)-- —Order 41 rule 23 to 29--Appeal--Remand of-ADJ while disposing appeal remanded case with order to decide it as a fresh-Both parties interpreted order of ADJ according to their own accord-Whether remand order was defective and ambigious-Question of-Held : Order of Appellate court is totally silent regarding specification as was required by Rule 29 of Order 41-Main Judgment was not a speaking Judgment as was required under rule 31 of order 41-Hence arising of ambiguity in such circumstances was natural-Intention of learned ADJ while remanding case, was to frame two additional issues and decide all these issues by putting parties at liberty to adduce evidence, if they choose so, before trial court-If purpose of learned additional District Judge had been to get evidence recorded only on two additional issues then he would have specified same, as was required, under rule 28 to take such evidence and send same to appellate court-There seems no logic to believe that intention of trial court was to decide issues once again on basis of only previously recorded evidence-On remand of a matter by an appellate authority, trial court has to provide opportunities to parties, to adduce evidence on all issues including additional issues particularly when appellate court had ordered to decide matter as a fresh unless unambiguously specified as required by rule 29 of order 41 CPC-Appeal accepted. [P. 673] A (ii) Order/Judgments/Writing of- —Tendency of passing orders without referring concerned provisions of law can never be appreciated-Judges shall avoid to embrace such unappreciable method of disposing of appeals. [P. 675] B Mr. M. Anwar Tariq, Advocate for Appellant. Mr. Imran Ahmed, Advocate for Respondent. Date of hearing: 27-9-1995. judgment The unfortunate controversy between the appellants/defendants and the appellee (hereinafter referred to as the appellant and the respondents respectively) started in the shape of Suit No. 1796 of 1976. The parties played two round before the first appellate courts. The first round had come to an end on 12.8.1990 when the learned Ilnd A.D.J. had remanded the case to the trial court and the second found was brought to end by the learned III A.D.J. (Central) Karachi. The controvertists have reached this court in this second appeal under Section 100 CPC which has taken birth out of the judgment pronounced by the learned III Addl. District Judge Karachi (Central) in the second round in Civil Appeal No. 68/1992 on 24.2.1994 who dismissed the said appeal which had been filed by the appellants (L.Rs. of deceased Mirza C' ajuddin) against the judgment and decree dated 23.9.1992 passed by the learned 1st Senior Civil Judge (Central) at Karachi in the suit referred to above. 2. Brief facts unfolded by the pleadings are that a Plot No. 28-B situated in Block No. 19, Federal 'B' Area, KDA Scheme No. 16, Karachi was originally allotted to one Yaqoot Shah son of M.Z. Shah in 1964 by Roshan Bagh Co-operative Housing Society Limited, Karachi who is undisputedly the actual owner of the said plot. The respondent claimed that the allotment was cancelled by the said society and the same was not only allotted to him but lease was also executed in his name by the KDA. Late Mirza Sirajuddin, the father of the appellants, who was residing in the adjacent house, tresspassed on the said plot on 21.9.1976 and thus illegally tookover possession of the above plot alongwith the construction made thereon by the respondent. 3. The factum of tresspassing had been denied by the appellants. According to their claim the suit plot was purchased from Yaqoot Shah in 1973 and construction was made thereon by them. Therefore, they contended that subsequent allotment and lease in the name of respondent ad been obtained through fraud and mis-representation. The appellants also raised a counter claim for cancellation of such documents. Issues were framed, evidence was recorded and the trial court decreed the suit. The said decree was challenged in Appeal No. 76/88, as stated earlier, and the learned II A.D.J. was pleased to set-aside the decree and the case was remanded back to the trial court to decide the matter as a fresh. This order of remand dated 12.8.1990 appears to be the foundation of trouble which has been agitated in this second appeal in hand. My reasoning for holding so is based on the following realities. The Judgment of the learned AD J is spread over only 4 pages. The first two pages are merely recitation of the allegations and counter allegations picked up from the plaint and the written statement. Issues framed by the learned trial court were typed on the third page. After this, the learned judge got the routine sentences typed on fourth page which reads as under: "I have heard the learned advocates for the parties at length. I have also gone through the case law relied upon by them." But no case law was referred in the said judgment Next few lines on this page were also copied from the facts mentioned in the pleading which can be labelled as grounds of appeal and then the following few sentences were written as the operative part of the judgment of appellate court. "In my humble view it is a fit case for remand. I accordingly set-aside the impugned judgment and remand the case to trial court with directions to frame issues regarding nonmaintainability of the suit U/S 70-A of Co-operative Societies Act No. 7 of 1925 and in proper valuation of the suit. The parties are at liberty to adduce evidence if they chooses so before the trial court and the trial court to decide the matter as a fresh. Order accordingly. (underlining is my own). This is the judgment in an appeal for which a paper book of 191 pages was prepared by the appellant who was respondent in the second round at the stage of 1st appeal and is respondent in this second appeal too. 4. The tug of war between the learned advocate is based on the strength of underlined sentences of operative part of the judgment as reproduced earlier which does not specify as to which provision of law from the Code of Civil Procedure was taken into consideration while remanding the said case. The result was obvious. The learned counsel for the appellants sought strength from the words "decide the matter as a fresh" used and underlined in the operative part and contended that the trial court was bound to frame additional issues and judgment could be given only after recording evidence on all the issues afresh. On the other hand, the learned counsel for the respondent took a stand on the bases of remaining underlined sentences of the operative part of the judgment and stressed that the trial court had to record evidence only on additional issues and was not competent to touch the previous evidence or to record evidence on the previous issues too. The learned counsel also contend that the sentence "decide the matter as a fresh" would mean to pronounce fresh judgment on all issues previously framed but on the bases of evidence previously recorded. 5. After remand, the case was entrusted with the court of 1st Senior Civil Judge, wherein two issues were added alongwith the main issues (already decided previously) and the respondent/plaintiff was directed to produce evidence. The respondent did not produce any evidence. However it appears from the record that the respondent made a statement in writing on 22.2.1992 and closed his side. It gave a chance to the learned counsel for the appellant to say that as no fresh evidence was adduced on the previous issues, hence, these issues were decided by the learned 1st Senior Civil Judge on the bases of no evidence and the suit was liable to be dismissed. Thereafter, such evidence of Mirza Ikramuddin was (???) record by one of the L.Rs of late Mirza Sirajuddin. It appears from the judgment of the learned 1st Senior Civil Judge that the learned judge, in compliance of the said directions, framed two additional issues and decided these issues separately as additional issue No. 1 and additional issue No. 2. But issues No. 3 to 8 were treated as interconnected alongwith other issues and were decided on the basis of evidence recorded previously. Suit was decreed as prayed by the plaintiff and the counter-claim of the defendant as prayed in the written statement was dismissed. Appeal filed by the appellants also met the same fate. Hence this second appeal. 6. The learned counsel for the appellants has contended and prayed to set aside the decree passed against the appellant as well as for dismissal of the suit and in the alternate for setting-aside the decree and remand of case to trial Court in accordance with the law. The main contentions of learned counsel for the appellants can be summarised as under: (i) That after the order of remand in the first round in Appeal No. 76/88 passed on 12.8.1990 for denovo trial, the fresh evidence had to be recorded on all issues. Neither the evidence previously recorded could be taken into consideration nor any issue could be decided on the bases of that (ii) That in civil matters, the evidence previously recorded on any issue could be considered by the court only with consent of the parties to a suit. If there is no such consent then the Court has to record evidence afresh on those issues too which were previously decided if the appellate court, while remanding the case, had not specifically directed to record evidence only in respect of those additional issues. (iii) That the dispute is over a plot claimed from Roshan Bagh Co-operative Housing Society Limited. As both the parties are covered under Section 54 of the Co-operative Societies Act, 1925, the case could only be decided under the above Act being out-side the jurisdiction of Court as envisaged in Section 70-A of the above Act. (iv) It was, therefore, contended by the learned counsel for the appellants that as the 1st Appellate Court has not considered these legal grounds, hence the judgment of the learned 1st appellate court was bad in law and was entitled to be set-aside. (v) It was also contended that this is a case of no evidence on the issues previously framed as no evidence was adduced by the respondent after the remand of the case. Therefore, the suit should have been dismissed by the trial court. (vi) That in such dispute, Mirza Yaqoot Shah was a necessary party and no suit could proceed in his absence as provided under Order I, Rule 10, CPC. (vii) That the appellants' counter claim has not been considered at all and no issue has been framed. Therefore, absence of finding on that point have prejudiced the appellants. The learned counsel for the appellants has sought strength from the cases reported in: (i) AIR 1920 Mad, 547, (ii) AIR 1942 Mad 528, (iii) PLD 1957 Dacca 451, (iv) PLD 1958 S.C. 392, (v) 1980 CLC 498, (vi) AIR 1957 Tripura 1, (vii) PLD 1962 Dacca 665 and (viii) PLD 1992 Kar. 167. On the other hand, the learned counsel for the respondent has controverted the contentions of the learned advocate for the appellant by contending that the Ilnd Appeal was not maintainable and no appreciation of evidence could be taken into consideration by this Court as the same stood concluded. Regarding the legal objections raised to the necessity of fresh evidence on all the issues it was contended that no such objection was raised before the 1st Appellate Court as such it has to be ignored at this stage. 7. Both judgments of .the sub-ordinate courts are silent on the points raised before this case. In the light of this back-ground the points which require consideration in this appeal are : "Whether Remand Order was defective and ambiguous ? If it was neither defective nor ambiguous then it has to be seen as to whether it was complied with or not in accordance to its spirit. Had the order of the learned ADJ, while remanding the case, has been clear on these points, then there would have no need of writing this judgment. Hence this duty is being performed by this court. The relevant provisions of remand exist in CPC from Rule 23 to 29 read with Rule 31 of Order 41 CPC. Rule 23 deals with the appeals when the trial court has disposed of the entire suit on a preliminary point and decreed or dismissed the suit on the basis of the disposal. Rule 25 deals with the cases where the trial Court has not disposed of the case on a preliminary point but omitted to try any material issue which appears to the Appellate Court to be necessary or important and without which no suit could be decided on merits. In such cases the appellate Court may, if necessary, frame issues and refer the same to the trial court with directions to take additional evidence. This rule is applicable only when the evidence on record is not sufficient because Rule 24 would be attracted in the cases where the evidence on record is sufficient to decide any appeal. Rule 27 and Rule 28 have to be read together. If the appellate Court allows additional evidence, for the reasons to be recorded in the judgment, then it may take such evidence itself or direct the trial court or any other sub-ordinate court to take such evidence. But in such cases the Appellate Court shall specify the points to which the evidence is to be confined as is the requirement of Rule 29 of Order 41. The Order of the learned Appellate Court which was passed in the first round in Civil Appeal No. 76/88, is totally silent regarding specification as was required by Rule 29 of Order 41. Therefore, the main judgment, in my view, was not a speaking judgment as was required under Rule 31 of Order 41. Hence arising of ambiguity in such circumstances was natural. But intention of the trial court can be ascertained from the words of the operative part of the judgment In my view, the intention of the learned Additional District Judge, while remanding the case, was to frame two additional issues and decide all these issues by putting the parties at liberty to adduce evidence, if they choose so, before the trial Court. If purpose of the learned Additional District Judge had been to get the evidence recorded only on the two additional issues then hd would have specified the same, as was required, under Rule 28 to take such evidence and send the same to the Appellate Court. There seems no logic to believe that intention of the trial Court was to decide the issues once again on the basis of only previously recorded evidence. Hence I am of the view that on remand of a matter by an Appellate Authority, the trial Court has to provide opportunities to the parties to adduce evidence on all the issues including the additional issues particularly when the Appellate Court had ordered to decide the matter as a fresh unless unambiguously specified as required by Rule 29 of Order 41, C.P.C. The trial Court and the Appellate Court have, therefore, misunderstood the intention of the remand order dated 12.8.1990. 8. As the factor of recording evidence in such situation has to be regulated under the Qanoon-e-Shahadat Order 1984 (10 of 1984), therefore, it is ecessary to find out as to whether the remand ^jrder of the Appellate _ Court could be complied with or not. The relevant provisions of the Qanoone-Shahadat is its Article 47 (Old provision was Section 33 of the repealed Evidence). I am of the view that if the remand order of an Appellate Court cannot be complied with on account of those exceptions mentioned in Article 47 of the Qanoon-e-Shahadat Order, 1984 for the purpose of recording fres evidence then reliance may be placed only on the evidence previously recorded, but in case of absence of those exceptions, evidence must be brought on record afresh on all issues, unless specified otherwise by the _^ Appellate Court by harmonising all the "issues so that matters be decided on merits. If it is not done so then the additional evidence on few issues may directly or indirectly affect the evidence already on record. The said Article reads as follows :- "47.- Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, he truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by adverse party, or if his presence cannot be obtained without an amount or delay or expense which, under the circumstances of the case, the Court considers unreasonable: Provided that: the proceeding was between the same parties or their representatives in interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; the question in issue were substantially the same in the first as in the second proceeding. Explanation. A criminal'trial or inquiry shall be deemed to be proceeding between the prosecutor and the accused within the meaning of this Article." (Underlining is my own) As the proceedings were between the same parties after the remand order, therefore evidence previously brought on record could be relevant for proof of the issues only if the conditions provided therein had been fulfilled. Recording of evidence on the issue could only be avoided if the suit had fallen in the clutches of exceptions as mentioned in Article 47 which were underlined by me. But there is nothing on record to show that the witness were not available or the same were dead or incapable to give evidence or otherwise kept out of the way by the adverse party or their presence could not be obtained without an amount or delay or expense. The judgment of the learned trial court is totally silent on this important aspect related to Article 47, as reproduced above which shows that the learned trial Court has not satisfied itself about this important factor and no order has been made by the learned trial Court before consideration of such evidence for proof of the issues. The least what could have been done by the learned trial court was to obtain consent of the adverse party against whom the evidence was to be considered. In this case, admittedly, as consent of the appellants had not been obtained, therefore, order of the learned trial Court could not be upheld by the learned 1st Appellate Court 9. For the reasons listed above I accept this appeal and remand this case for redecision to the trial Court by setting aside the orders of the learned 1st Senior Civil Judge and fflrd Additional District Judge, Karachi, pronounced in their judgments dated 23.9.1992 and 24.2.1994 respectively alongwith the decree passed on 23.9.1992 by the trial Court. The trial Court would provide full opportunities to the controvertists to adduce evidence on each issue, if the so desire, except on the issues where the parties consent to rely upon the previously recorded evidence. As this matter has taken a big piece of life of the mortal humanbeings which approximately spreads over 17 years, hence this matter would not be adjourned for more than 10 days after every hearing. 10. Before parting with this judgment, I would he failing in my duties if I do not express my concern over the tendency of passing orders without referring the concerned provisions of law. The tendency of disposing of appeals, as was done in this case, can never be appreciated. I have avoided to bring the name of the learned AD J on record with this hope that after he semes to know the contents this judgment he shall avoid to embrace such unappreciable method of disposing of the appeals. Same feelings be treated or those who also follow the same path. In the circumstances, there is no order a» to costs. Orders accordingly. (SJl) Appeal accepted. Case ^manded.

PLJ 1996 Karachi 676 PLJ 1996 Karachi 676 Present: rasheed A. razvi, J. Mst. FARIDA BEGUM and others-Plaintiffs Versus HAFIZ MUHAMMAD SHAMIM and others-Defendents Suit No. 689 of 1993, dismissed on 28-3-1996. (i) Civil Procedure Code, 1908 (Act V of 1908)-- —-S. 12 (2)-Allegation of fabricating documents and making false statements before authority for obtaining cancellation of lease—Suit for setting aside decree-Matter already heard by High Court and Supreme Court in two different appeals-Held : Sub-section (2) of Section 12 CPC provides that where any person challenges validity of a judgment, decree or order on pleas of fraud, misrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to court which has passed such final judgment, decree or order—This subsection clearly prohibits filing of a separate suit to challenge validity of a judgment, decree or order on ground of fraud misrepresentation or want of jurisdiction-Held further : Defendants had an opportunity to raise all these questions before this court in civil revision as well as before, supreme court which they have miserably failed and now they cannot be allowed to have resort to provisions of Section 12 (2) CPC for their own acts of negligence or omission-Petition dismissed. [Pp.679&680]A&B 1992 CLC 2323 ; PLD 1984 Lah. 396,1988 CLC 2037 1991 CLC 553 PLD 1982 Pesh. 172, PLD 1982 SC 148, PLD 1983 SC 941,1981 SCMR 878, PLD 1991 SC 197 ref. (ii) Civil Procedure Code, 1908 (Act V of 1908)- —S. 12 (2) Suit for setting aside decree allegedly obtained by fraud and misrepresentation-Held : No doubt, in para 14 of plaint they have challenged certain acts of defendants to support allegations of fraud and misrepresentation but that this suit is not proper remedy of their grievances and that they should have filed an application under Section 12 (2) CPC before court which has passed final judgment-Suit is barred under sub-section 2 of Section 12 CPC and by virtue of Order 7 rule 11 (d) CPC plaint is liable to be rejected-Petition dismissed. [P. 682] C Mr. Sathi M, Ishaque, Advocate for Plaintiff. Mr. Z. U. Ahmed, Advocate for Defendants 1 to 5. Mr. Muhammad Yasin Kayani, Advocate for Defendant No. 6. Date of decision 28-3-1996. order Through this order, I intend to dispose of three miscellaneous applications. The first application, CMA No. 1049/94, is filed by the plaintiffs under Order XXXK Rules 1 & 2 CPC praying that the defendant No. 6, namely K.M.C. be restrained from issuing any lease in favour of other defendants. CMA No. 2629/94 is an application filed by the defendants No. 1 to 5 under Order VII Rule 11 CPC praying that the plaint be rejected on the ground of res judicata as well as in view of section 12 (2) CPC. CMA No. 3294/94 is an application under section 148 CPC filed on behalf of the defendants praying that they may be allowed not to file their respective written statements till disposal of their application filed under Order VII Rule 11 CPC. 2. Brief facts, as disclosed in the plaint, are that the plaintiffs are legal heirs of late Imamuddin while defendants No. 1 to 5 are brother and sister of one Muhammad Naseem. The property in dispute is a land measuring 460 square yards bearing No. 4, Charcoal Area 1 , Liaquatabad, Karachi (hereinafter referred to as the property in dispute). It is alleged in the plaint that the property in dispute was allotted to the predecessor-in- "Interest of the plaintiffs who are in physical possession. That in the year 1972, the defendant No. 6 namely, K.M.C. granted lease rights which was accordingly registered on 31.12.1972. That the predecessor-ia-interest of the defendants N(J. 1 and 2 also claimed ownership of the property in disputed on the grounds that he has acquired the same from the Deputy Refugee Commissioner, Karachi. It is admitted in the plaint that several civil and criminal litigations were initiated between the parties. The most important litigation was a suit bearing No. 227 of 1976 filed by Muhammad Naseem, predecessor-in-interest of the defendants No. 1 and 2 against Mst. Majeeda for cancellation of lease deed dated 23.12.1972. The Suit No. 227/76 was dismissed on 6th April, 1980 by the Vth Senior Civil Judge, Karachi against which the predecessor-in-interest of defendants No. 1 to 5 filed appeal bearing No. 232/80 (Annexure-A to the plaint) which came up for hearing before the Vnth Additional District Judge, Karachi who vide his judgment dated 13.1.1983 allowed the appeal and decreed the suit. 3. The case of the plaintiffs is that the defendants No. 1 to 5 had procured the judgment of learned Vllth Additional District Judge, Karachi in Appeal No. 232/80 by misrepresentation and by playing fraud upon the Court Several instances are alleged in para-14 by the plaintiffs to show that the misrepresentation and fraud were allegedly committed by the defendants No. 1 to 5. In view of these allegations, the plaintiffs have filed this suit for declaration and injunction with the following prayers : "(a) Declaration that the predecessor-in-interest of Defendants No. 1 to 5 has obtained judgment in Appeal No. 232/83 from the then VE-Additional District Judge Karachi by fraud and mis-representations and, therefore, the said Judgment is without lawful authority and of no legal effect; (b) Prohibit and restrain the Defendants No. 1 to 6 from interfering with the possession of Charcoal Commercial Area, Liaquatabad, Karachi, directly or indirectly themselves or through any other agency by any process and in any manner whatsoever." 4. It is pertinent to mention here that the plaintiffs after the order of the learned Vllth Additional District Judge, Karachi in Civil Appeal No. 232/80 preferred a Civil Revision before this Court which was numbered as R.A. No. 69/83. The learned Single Judge of this Court heard the revision and set aside the order of the learned Additional District Judge in Civil Appeal No. 232/80 and remanded the case vide its judgment dated 5-3-1989 to the learned District Judge Central to decide the matter in appeal afresh after hearing the arguments of all the parties. Against this order, defendants No. 1 to 5 went before the Supreme Court seeking leave to appeal through C.P.L.A. No. 518-K/89. The Hon'ble Supreme Court of Pakistan after following the law laid down in the case ofMussumot Hitoo v. Syed Fazal Rob and others 13 (1870) Moors's Reports of Cases (Privy Council) 573 as well as the case Muhammad Swaleh and another v. Messrs United Grain & Fodder Agencies (PLD 1964 SC 97) converted leave petition into appeal and set aside he judgment dated 5.3.1989 and remanded the case to this Court for recording a reasoned order as required under the law. Accordingly, this Court re-heard R_A. No. 69/83 and vide its judgment dated 30.5.1991 again remanded the case to the Appellate Court for disposal in accordance with the law. 5. Against the order of this Court dated 30.5.1991 passed in RA. No. 69/83, the defendants No. 1 to 5 again approached the Hon'ble Supreme Court through leave petition and leave was granted vide order dated 26.11.1991. In appeal (250-K/91) vide its judgment dated 11.11.1992 a Full Bench of the Hon'ble Supreme Court was pleased to set aside the order of this Court in R.A. No. 69/83. Following is the relevant observation of the Supreme Court: The crucial point on which the arguments from both sides were directed is; whether, a party having failed to object to the admission of a piece of evidence which otherwise may be objectionable but suffering from no substantial defect on merits can relying on technicalities succeed in the higher forums in seeking the annulment of the trial or for that matter the exclusion of such evidence. Obviously the recent judgments by this Court noticed above go against the respondents' position. Learned counsel far the appellant also brought to our notice that the procedure regarding admission of evidence objected to by the respondent's side was also adopted by the said side in leading their own evidence. Learned counsel for the respondents remained unable to contradict this statement on fact but tried again and again that an illegality or even an irregularity committed at the trial in the admission of evidence whether that of the appellant or that of the respondents could not have been ignored by the High Court nor it can be ignored by this Court. We do not agree with such a general statement The trend of authority is against it In so far as the present case is concerned the learned counsel again was asked to explain the respondents' conduct is not only failing to raise any objection at the trial stage but had also followed the same procedure to which no objection was raised before the High Court Not only this when confronted with a very strong probability that both the parties had agreed on such a procedure because none objected to the other departing from the normal practice, learned counsel for the respondents did not dispute this assumption though continued repeating the technical argument ." 6. I have heard Mr. Sathi M. Ishaque, Advocate for the plaintiffs, Mr. Z.U. Ahmed, Advocate for defendants No. 1 to 5 and Mr. Muhammad Yasin Kayani, Advocate for defendant No. 6. The main thrust of the argument of defendants, Counsel is the bar contained in Section 12 (2) CPC. According to Mr. Z.U. Ahmed, since the plaintiffs are seeking setting aside of the judgment passed by the first appellate Court, namely, Additional District Judge, Karachi on the grounds of fraud, misrepresentation and jurisdiction as such the suit is not maintainable in view of the bar contained in section 12 (2) CPC. He has referred to the case of Government ofSindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197) and the case of North-West Frontier Province Government, Peshawar and another v. Abdul Ghafoor Khan through Legal Heirs and others (PLD 1993 SC 418). On the other hand, it is contended by Mr. Sathi M. Ishaque that the plot on dispute is not the same plot which was allotted to the predecessor-in-interest of the plaintiffs and that the predecessor-in-interest of defendants No. 1 to 5 had fabricated the documents and made a false statement before the K.M.C. for obtaining cancellation of lease. He has referred to the case of Muhammad Ilyas v. Haftz Abdul Malik and 2 others (1991 CLC 1975). 7. Subsection (2) of section 12 CPC provides that where any person challenges the validity of a judgment decree or order on the plea of fraud, isrepresentation or want of jurisdiction, such person shall seek his remedy by filing an application to the Court which has passed such final judgment decree or order. This subsection clearly prohibits filing of a separate suit to challenge the validity of a judgment decree or order en the ground of fraud, misrepresentation or want of jurisdiction. The Hontile Supreme Court has held in the case of Government of Sindh and another (PLD 1991 SC 197) that the intention of the legislature in amending section 12 CPC by adding subsection (2) was to provide a substitute for such a suit against the judgment, decree or order obtained by fraud. In the instant case, the impugned judgment of the learned Vllth Additional District Judge was passed on 13.1.1983, thereafter the matter was twicely heard by this Court in Civil Revision No. 69 of 1983 and was also heard thrice before the Supreme Court in two different appeals. But on no occasions, the plaintiffs have never pointed out or alleged the same grounds as of the present plaint. Para-16 of the plaint which is about the accrual of cause of action is absolutely silent on the point that when these alleged frauds or misrepresentation were committed. In my view, the defendants had an opportunity to raise all these questions before this Court in civil revision as well as before the Supreme Court which they have miserably failed and now they cannot be allowed to have resort to the provisions of section 12 (2) CPC for their own acts of negligence or omission. Reference be made to the following para of the reported case viz., Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197): "13. Further, as will appear from the above-quoted paragraph, the appellants did not plead any such facts or raised any such grounds in the appeal also. Therefore, it was not open to them to raise the same again in an application under section 12(2), C.P.C. This will be against the rule of finality. It is also not the case of the appellants that they were prevented from raising pleas or grounds raised in the application under section 12(2), C.P.C. because of any fraud or misrepresentation on the part of the respondents. They cannot be allowed to have resort to the provisions of section 12 (2), C.P.C. for their own acts of negligence or omissions. Such a course, if allowed, will erode the finality of proceedings, in spite of the decision of the final Court This could not be intention of the legislature as the same would be against public policy." In the case of Muhammad Akhtar etc. v. Abdul Hadi etc. (1981 SCMR 878), it was held that after adjudication of dispute between the parties by a competent Court of law; fresh suit to re-agitate the same matter could not have been filed by the respondent which was nothing but an abuse of the process of law. In view of the said circumstances, order of the trial Court rejecting the plaint in the suit was restored and the order of the High Court was set aside. Even prior to the 1980 amendment in section 12, the Supreme Court has held that even under sections 9 and 11 of the CPC such suits are barred which are filed to challenge the legality and validity of judgments and orders passed on the grounds of fraud or misrepresentation. Reference be made to the case of Abdul Mqjid and others v. Abdul Ghafoor Khan and others (PLD 1982 SC 146) where it was held that under section 44 of the Evidence Act (now repealed) permits a party to a decision, to show that it was obtained by other party by fraud or collusion or that the Court acted without competence. It was further held that this section does not lay down mandate that it must be shown in a separate suit and not by moving the same Court or the appellate authority. The rule laid down by the Supreme Court in the case of Abdul Majid (supra) was followed in the case ofAsifJah Siddiqui v. Government ofSindh and others (PLD 1983 SC 446). 8. Recently, a learned single Judge of Lahore High Court, Mr. Muhammad Hyas, J. (as his lordship then was) in the case of Sarwar and 3 others v. Muhammad Saeed-ud-Din Khan Alias Saadat-ud-Din Khan (1992 CLC 2323) held that since the petitioner's predecessor-in-interest had challenged the judgment and decree passed in favour of respondent on the ground of fraud and misrepresentation, it was barred by subsection (2) of section 12 of the CPC and that this could be done by making an application under section 12 (2) CPC and not by a separate suit The learned Judge has followed the rule laid down in the cases of Zafarullah and 3 others v. Civil Judge, Hafizabad and 3 others (PLD 1984 Lah. 396), Sardar Bakhsh v. Sahib Khatoon (1988 CLC 2037), Iqbal v. Mst. Jainan Bibi(lQ91 CLC 553) nd the case of Abdul Rauf and others v. Abdur Rahim Khan (PLD 1982 Peshawar 172). The facts of the reported case; Sarwar and 3 others (Supra) are similar to the facts of the present case. Even'this Court in the case of Mst Rukhsana Ansar and 2 others v. Mst. Raeesa Khatoon (1993 MLD 1319) held that by virtue of newly added subsection (2) suit cannot be instituted to challenge the validity of the judgment, decree or order by a Civil Court on the ground of fraud, misrepresentation or want of jurisdiction and that such remedy can now only be sought by an application to the Court which passed the final judgment, decree or order. 9. The case of Muhammad Ilyas vs. Hafiz Abdul Malik and 2 other cited by Mr. Sathi M. Lshaque is of no help to them as in the said reported case the impugned order was passed by a learned Rent Controller and it was held by a single Judge of this Court that the question of fraud as alleged was neither directly nor substantially in issue before the Rent Controller or before the High Court In the present case, the plaintiffs have alleged frauds which were allegedly committed by the defendants either before filing of the suit or during the proceedings. 10. The plaintiffs are challenging the judgment and decree passed by the learned Additional District Judge in Civil Appeal No. 232/83 through this suit. No doubt, in para-14 of the plaint they have alleged certain acts of the defendants to support the allegations of fraud and misrepresentation but I am of the view that this suit is not the proper remedy of their grievance and that they should have filed an application under section 12 (2) CPC before the Court which has passed final judgment Mr. Z.U. Ahmed has also raised plea of limitation as the impugned judgment was passed in the month of January, 1983, some ten years before filing of this suit I would not like to examine this question as I am of the view that this suit is barred under subsection (2) of section 12 CPC and by virtue of Order VII Rule 11 (d) CPC plaint is liable to be rejected. As a result of above discussion, CMA No. 2629/94 is granted and the plaint is rejected with no order as to costs. Since CMA No. 1049/94 and CMA No. 3294/94 have become infructuous as such they also stand dismissed. (S.R.) Petition dismissed.

PLJ 1996 Karachi 682 PLJ 1996 Karachi 682 Present: rana bhagwan das, J. SHER AFGAN-AppeUant versus SH. ANJUM IQBAL-Respondent First Rent Appeal No. 393 of 1989, dismissed on 31-3-1996. (!) Sind Rented Premises Ordinance, 1970 (XVII of 1979)- —Tenant-Ejectment of-Petition dismissed-Challenge to--Non payment of rent is visited with penal consequence of forfeiture of tenancy, evidence given by parties must be construed strictly and in the event of a probable doubt it must be resolved in favour of tenant rather than landlord. [P. 686] A (ii) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —Tenant-Ejectment of-Petition dismissed-Challenge to-Appellant's attorney having refused to accept rent sent by cheque, respondent was left with no alternative but to deposit rent in office of Controller- Appellant himself having created circumstances to manifest that he was not inclined to accept rent sent through cheque, he is legally not entitled to make a grievance that rent was not paid-Claim of appellant for enhancement of rent from Rs. 1000/- to Rs. 1200/- p.m. after expiry of agreement cannot be accepted for the reason that with the expiry of tenure, agreement came to an end and same being unregistered could not be legally enforced-Petition dismissed. [P. 686] B (ill) Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —Tenant-ejectment of-Case of-Ordinarily a landlord is entitled to use his property to the best of his discretion and choice and without any restraint as right to hold, acquire and possess a property is even guaranteed under constitution there are exceptional circumstances tending to show that requirement of premises for personal use was not coupled with good fchh, [P. 691] C (iv) Sind Rented Premises Ordinance, 1979 (XVII of 1979)- —Tenant-Ejectment of-Personal requirement-Eviction was sought on refusal to agree to exhorbitant rate of rent-Contention of-Held : Mere demand of higher rent does not by itself disentitle a landlord to seek ejectment of his tenant on ground of personal requirement but this circumstance coupled with other facts and grounds would give rise to a reasonable inference that desire of landlord was not justified and was rather tainted with malice and ulterior motives. [P. 692] D Mr. Khalid Latif, Advocate for Appellant Mr. Safdar Hussain Font, Advocate for Respondent. Dates of hearing: 22.5.1995 and 17.1.1996. Approved for reporting on 31.3.1996. judgment This appeal by landlord under section 21 of ethe Sindh Rented Premises Ordinance (hereinafter referred to as the Ordinance) is directed against an order dated 11.5.1989 passed by learned Controller, Karachi - East (Syed Gul Muneer Shah) dismissing ejectment application in respect of demised premises. 2. Respondent is the tenant of the appellant in respect of two shops situated on plots No. 23 and 24-C, Tariq Road, PECH Society, Karachi at a consolidated rent of Rs. 1350/- per month. Appellant sought eviction of the respondent on the grounds, firstly, default in payment of rent w.e.f. April, 1978 ; secondly, requirement of the premises in good faith for personal bona fide use and thirdly, impairing value and utility of the premises by making additions and alterations without permission of the appellant 3. Respondent contested eviction proceedings but he admitted the tenancy as well as rate of rent with an averment that the rent payable was exclusive of electricity, water and conservancy charges. He denied default explaining that as per practice rent was tendered to Sher Muhammad Khan, father and the attorney of the appellant, who avoided to accept the rent therefore he deposited rent in Misc. Rent Case No. 3032/1978. Other grounds for ejectment were also denied and disputed as false and raised with ulterior motives. It was pleaded that on account of his refusal to increase the rent exhorbitantly and to pay taxes which the respondent was not liable to pay eviction was sought with mala fide intention as a counter­ blast to Rent Case No. 3573/1980 filed by him for restoration of amenities against appellant. 4. In support of his case appellant examined himself and his father as well as attorney Sher Muhammad Khan while the respondent appeared as his own witness. 5. On the above averments, learned Controller formulated the following points: 1. Whether opponent is wilful defaulter in payment of rent as alleged by applicant ? 2. Whether applicant requires the demised premises for his personal bona fide use ? 3. Whether opponent has caused damage to the demised premises which has impaired the value and the utility of the same ? 4. What should the order be ? 6. On assessment of evidence and hearing parties counsel he decided all points against the appellant and dismissed the ejectment application as stated earlier. 7. It is pertinent to note that the relationship between the parties was regulated by agreement of tenancy dated 3rd January, 1973, in respect of shop No. 23-C commencing from 1st July, 1972 and valid for a period of five years with a clause for renewal of the tenancy by mutual consent of the parties. The rent for this shop was fixed at Rs. 1,000/- per month. Rent from 1st July, 1972 to 31st December 1972 was plaid in advance and acknowledged by the appellant in the agreement. The tenancy agreement further provided that rent would be payable in advance quarterly by the first of the quarter, i.e. on 1st July, 1st October, 1st January and 1st April of each calender year. Clause 7 of this agreement stipulates that respondent shall be responsible for payment of electricity power, gas, water and conservancy charges consumed in the said premises in addition to rent directly to the authorities concerned. Agreement further provides that on expiry of tenancy period of five years if the respondent desires renewal for another period of five years rent payable shall be Rs. 1200/- per month exclusive of electricity, gas, water and conservancy charges. 8. Tenancy agreement in respect of shop No. 24-C was executed on 5th April, 1ST ; effective from 1st April 1973 on a monthly rental of Rs. 350/- with advance payment of three months rent to the appellant which was duly acknowledged. This agreement was also valid for five years with effect from commencement of tenancy on similar terms and conditions with the exception that on expiry of five years period rent payable was to be revised by mutual consent of the parties. It may be observed that bo h the tenancy agreements were not registered and no agreement renewing the tenancy was executed between the parties and by the time eviction application was filed appellant attained the age of majority whereas premises were let out on rent on his behalf by his father and guardian. 9. In the context of covenant in the agreement of tenancy to pay rent in advance it was agitated that rent from April, 1978 to June, 1978 was not paid in advance and thereby respondent committed a wilful default and violated the terms of tenancy. In his evidence respondent stated that as per practice he remitted rent for the month of April, 1978 to the attorney of the appellant through cheque at his Lahore address which was refused by him whereafter with the permission of the Controller to deposit rent he has been regularly depositing rent in Misc. Rent Case No. 3032/1978. After passing of the rent order under section 16(1) of the Ordinance however he has been depositing rent in Rent Case No. 211 of 1985. In view of categorical admission by appellant's father Sher Muhammad Khan during his crossexamination that after his shifting to Lahore in 1965 respondent had been sending rent through cheque or draft in his account and that in April, 1978 he had sent rent through cheque which was refused by him (as it did not include enhanced rent as per tenancy agreement) respondent did not feel it necessary to produce the letter covering the cheque in respect of rent for the month of April, 1978. Despite express admission on the part of the appellant, respondent was subjected to cross examination with regard to his averment that as per practice he had tendered rent of the premises for the month of April, 1978 through cheque to the attorney of the appellant at the Lahore address which was refused, when he stated that he did not remember if he paid rent on 1st April, 1978 and could not say as to when had he paid rent but he strongly denied the suggestion that he did not pay rent in time. On the strength of these replies by the respondent it was contended on behalf of the appellant that there was a wilful default in payment of rent for the month of April, 1978 because the respondent failed to produce any document to prove the tender of rent as alleged. The argument is untenable on the face of it as after unqualified admission by appellant's attorney and father to the effect that he had refused to accept rent for the month of April, 1978 appellant cannot be allowed to say that rent was not remitted or that respondent failed to produce documentary evidence in support of bis assertion. Be that as it may, as the non-payment of rent is visited with penal consequence of forfeiture of tenancy, evidence given by the parties must be construed strictly and in the event of a probable doubt it must be resolved in favour of the tenant rather than the landlord. 10. It was then submitted that the rent for the quarter commencing from 1st April, 1978 to 30th June, 1978 ought to have been paid on 1st April, 1978 but it was actually deposited in the office of the Controller in Misc. Rent Case on 10.7.1978 i.e. far beyond the agreed date for payment of rent Indeed appellant's attorney having refused to accept rent sent by cheque, respondent was left with no alternative but to deposit rent in the office of the Controller. Appellant himself having created circumstances to manifest that he was not inclined to accept rent sent through cheque, he is legally not entitled to make a grievance that the rent was not paid. The claim of the appellant for enhancement of rent from Rs. 1000.00 to Rs. 1200.00 p.m. after the expiry of agreement cannot be accepted for the reason that with the expiry of tenure agreement came to an end and the same being unregistered could not be legally enforced. Obviously the rent could not be paid in advance in terms of the tenancy agreement because it was adamant attitude and conduct of the appellant's attorney that created problems for the respondent to pay rent in advance. It is a matter of common knowledge that in the month of June, civil courts including those of the Controller at Karachi are closed for judicial business. In these circumstances if the respondent approached the Controller for permission to deposit rent in the first week of July, 1978 and was able to deposit arrears of rent with effect from 10.7.1978 no fault can be found with him. 11. There is another aspect of the case namely non-payment of water and conservancy charges in respect of premises. Relying on the terms and conditions of tenancy agreement and the definition of word "rent" under section 2(i) of the Ordinance which include payment water, conservancy, gas and electricity charges, it was pointed out that non payment of water charges to the concerned agency would amount to default in payment of rent and since the respondent was constrained to admit that he has not paid water conservancy charges at any time he had committed a default within the ambit of the word. Explanation of the respondent on this point however is to the effect that according to clause 7 of the agreement he was responsible for payment of electricity power, gas and water consumed ik the premises according to his share and since two chowkidars employed by the appellant residing on .the first floor of the demised premises were using water and as the appellant did not contribute his share towards the water and conservancy charges in fact the supply of water was disconnected with effect from 5.2.1978. In this connection, respondent referred to letter dated 13.3.1978 Ex A/6 and letter dated 13.9.1978 Ex. A/7 addressed to him by appellant's attorney. Vide letter Ex. A/6 appellant had informed the respondent that he had received letter No. A & C/E/691/78 dated 18.2.1978 for payment of KMC dues in respect of water charges, fire rate and conservancy, etc. It was further stated that the letter showed that dues upto 1971-72 had been paid except the amount of Rs. 2197.20 in respect of general tax. This letter went on to say that balance dues i.e. Rs. 17075.80 minus 2197.20 i.e. Rs. 14878.60 were payable by him as per clause 7 of the agreement as be was the beneficiary of the said amenities and no body else was sharing the same since there was no other tenant in the premises. He waa therefore called upon to arrange to pay the aforesaid dues under intimation to the appellant direct to the KMC. Respondent replied this letter on 22.3.1978 Ex.A/8 stating that some times back he had received a demand note from KMC in the name of Mr. Zahoor Ahmed for payment of Rs. 11935/- towards water conservancy and fire rate for the years 1972-78,1973- 74, 1974-75, 1975-76 and 1976-77 so the said demand note was referred to appellant for settlement with KMC. Respondent pointed out that according to the tenancy agreement he was liable to pay only water and conservancy rate as per his share and not liable to pay any amount towards the alleged fire rate. More over, KMC had demanded said rates by assessing annual letting value of the property at Rs. 18360/- which amount was much in excess of the rent agreed to be paid by him in respect of the premises let out to him. Appellant was advised, in the circumstances to settle the matter with KMC and thereafter to collect the share of water and conservancy rates from the respondent reminding that needful may be done at an early date and to see that the water supply which was shut off on 5.2.1978 was restored without any delay. It seems that instead of responding to the respondent's letter positively appellant sent another letter dated 13.9.1978 ExA/7 enclosing therewith photo copy of KMC dues from 1970-71 to 1974-75 in respect of water rate, conservancy and fire rates. According to the appellant share of the respondent with effect from July, 1972 when he occupied the premises under tenancy agreement came to Rs. 57S4/- and called upon him to send the amount at the earliest as he was the sole beneficiary of the services and facilities. There is nothing in the affidavit in evidence filed by the appellant's attorney with regard to payment of water and conservancy charges whereas aforesaid letters were produced during the crossexamination without explaining the contents or making a positive approach to sort out the payment of water and conservancy charges. 12. It is admitted by the appellant's attorney that his two chowkidars used to reside on first floor of the premises and the reasonable inference drawn from this circumstance is that both chowkidars were using water made available in the premises and thus the appellant was liable to share the water and conservancy charges with the respondent which was not bifurcated. No doubt, there is a categorical admission by the respondent in his cross-examination that he had never paid water and conservancy charges either to the landlord or to the department concerned right from the inception of the tenancy the fact remains that non-payment of water and conservancy charges was explained by the respondent that the appellant did not bifurcate the bill payable by him as well as the appellant In fact water supply was disconnected with effect from 5.2.1978 whereafter respondent was obliged to file Rent Case No. 3573/1980 for restoration of the amenities which is stated to be pending before the Controller. Notwithstanding the controversy with regard to liability for payment of water and conservancy charges or non payment thereof by the respondent it would neither be fair nor equitable to find any fault with him for non payment of these charges in the absence of specific and concrete evidence tending to show a deliberate and intention default. It has come in the evidence that in fact he had paid a huge amount by way of property tax to the Excise and Taxation Department which would adversely reflect on the indifferent attitude to perform his lawful obligations on the part of the appellant 13. In the case rep>< r ted as Muhammad Yousufv. Abdullah (PLD 1980 S.C. 298) it was ruled that as the lessee is entitled under the said Ordinance to remain in possession of the demised premises, after the expiry of the lease on payment of statutory rent, prima facie, tender of rent by him top the lessor after the expiry of the lease is in the discharge of his statutory obligation to pay rent under the said Ordinance. Similarly as the lessor has been deprived by the said Ordinance of his right to evict the lessee on the determination of the lease, his acceptance of the rent tendered by the lessee after the expiiy of the lease usually reflects his inhability to evict the lessee and will not amount prima facie to acceptance of any implied offer by the lessee to continue the lease. In the reported case as the period of tenancy in the agreement had expired, their lordship observed that an agreement can only be made by the consent of the parties, and if an agreement is for a fixed period it comes to an end on the expiry of the agreed period unless it is renewed by both the parties. 14. Aforesaid view was followed in the case of Abdul Sattar v. Muhammad Afzal (PLD 1985 S.C. 148) endorsing the view taken by the Lahore High Court laying down that after the expiry of the agreement the rights and liabilities of the tenant fell to be governed by the provisions of the West Pakistan Urban Rent Restrictions Ordinance, 1959 which regulate the terms as to ejectment. 15. In the subsequent case of Mrs. Zarina Khawqja v. Agha Mehboob Shah (PLD 1988 S.C. 190) dealing with question relating to continuance of the terms of tenancy agreement after its termination Hon'ble Supreme Court was of the view that notwithstanding the enactment of the rent laws the relationship of landlord and tenant would continue to be determined and regulated in accordance with (a) the general law; But, subject to a very important condition that in case of repugnance of either of these two elements to any of the provisions of the rent law, the latter shall prevail; meaning thereby that the provisions of the general law and/or the covenant in the agreement to the contrary, shall have no effect. Their Lordships explained further by observing that during the continuance and subsistence of the agreement of tenancy the question of relationship of andlord and tenant, the regulation of that relationship particularly vis-à-vis the determination and payment of rent; as also the eviction shall be governed y the covenant contained in the agreement; provided that those covenants do not come in conflict with the provisions of rent law and in case of conflict the provisions of that law will prevail notwithstanding any terms of agreement to the contrary. The reason for this proposition is that after the expiry of the agreement of tenancy the general law of holding over by the tenant has not been repealed or modified by the rent laws except to the extent that it comes in conflict with the provisions of rent restriction law. Their Lordships laid emphasis on the definition of "tenant" in section 2 of the Ordinance 1959 that a tenant would include a tenant continuing in possession after the termination of the tenancy in his favour. In fact similar words are used in the definition of tenant in the Sindh law contained in Ordinance, 1979. 16. The view taken in AsgharAli v. Muhammad Alt (PLD 1988 S.C. 228) was that in a case where rent agreement indicated that tenant would pay a further sum of amount as rent in advance 15 days before the commencing of another term of six months and in case of non-compliance, tenancy would be terminable at the option of the landlord, agreement in question as to security in such a case would continue to operate notwithstanding its expiry. This case however is hard y applicable to the facts of the case in hand because the case involved a prayer for adjustment of advance rent towards future rent in respect of which there was a default 17. On these premises it was contended on behalf of the appellant that notwithstanding expiry of the agreement of tenancy, in the present case terms and conditions and relationship between the parties would be governed by the terms of tenancy. It was further agitated that the terms and conditions of tenancy agreement being.not in conflict with the provisions of the Rent Ordinance, relationship between the parties shall continue to be governed by the terms of the tenancy. 18. On the other hand Mr. Safdar Hussain Fani, learned counsel for the respondent urged with vehemence that after the expiry of tenancy agreement between the parties relationship with regard to payment of rent and other terms shall be governed by the provisions of Ordinance, 1979. He further contended that initial tenancy agreements for a period of five years being unregistered could not be legally enforced for want of registration under section 17 of the Registration Act. Learned counsel relied upon Muhammad Rafiq v. Habib Bank Limited (1994 S.C.M.R. 1012) as well as judgment by Mukhtar Ahmed J. (as he then was) reported as Mukhtar Begum v. Dildar Ahmed (1994 CLC 1210). 19. In Muhammad Rafiq's case leave to appeal was granted to consider the question as to whether ratio in the case of Mrs. Zehra Begum v. Pakistan Burmah Shell Ltd. (P.L.D. 1984 Supreme Court 38) had been rightly applied to the case or whether the case of Habib Bank Limited v. Munawar Mi Siddiqui (1991 S.C.M.R. 1185) was applicable. In this case building had been rented out to Habib Bank Limited under an unregistered tenancy agreement for a period of five years in May, 1971. Last tenancy agreement between the parties was executed on 1.8.1981 with effect from 19.5.1981 stipulating that the lease shall be initially for a period of five years but on expiry of initial period the lease shall not determine by efflux of time, but the Bank shall have option, without being bound to do so to renew the same for further period of five years and thereafter to further renew the same from time to time after expiry of such renewed period or periods. There was a further stipulation that the owner expressly waived all statutory and other rights of the ejectment of the Bank from the demised premises and it was expressly agreed that the owner will be entitled to eject the Bank only if rent for two consecutive months had become due and remained unpaid despite a notice demanding such payment, or the Bank had sublet the premises in contravention of the agreement. There was further clause in the agreement stipulatin that after expiry of the initial period of lease owner shall renew the same on the terms and conditions mutually agreed upon between the parties for such period or periods as may be required by the Bank in the exercise of its option of renewal. It so happened that before the expiry of above five years period Habib Bank Limited requested for the renewal of the tenancy agreement but the owner did not respond to the above request and consequently there was no mutual agreement as to the terms and conditions of the tenancy agreement, on which it was to be renewed. In fact upon expiry of the period on 18.5.1986 landlord stopped accepting rent from the Bank and on or about 31.12.1987 filed rent case against the Bank for ejectment on the ground of his personal requirement. In these circumstances it was held by the Supreme Court that since the tenancy agreement purported in fact to create a lease in perpetuity and as the same was not registered, a statutory tenancy came into existence under the provisions of the Ordinance, 1979 as admittedly the appellant accepted rent form the respondent from time to time. A reference was made to the case of Hakim Ali v. Muhammad Salim (1992 S.C.M.R. 46) and it was observed that the rights of the parties are to be regulated under the provisions of the Ordinance and not under the tenancy agreement as it was not a legal and enforceable document 20. In Mukhtar Begum's cases learned Single Judge of this court relying on earlier judgments of this court, Lahore High Court as well as Supreme Court expressed the view that where agreement of rent was for a fixed period, after expiry of such period rights and liabilities of parties in respect of payment or rent, would be regulated in terms of provisions of Ordinance, 1979. 21. With regard to the personal requirement of the shop premises by the appellant it is pertinent to note that this ground was urged in the ejectment application in addition to the grounds of default in- payment of rent as well as impairment to utility and value of the shop premises. It may, however, be observed that on the date of making application for ejectment, appellant himself was studying in U.S.A., and it could not be reasonably and legitimately antiopated that he would need the shop premises for running his business on his return from U.S.A. after completing his education in Electronics Engineering. It is true that in his evidence, appellant's father and attorney stated about the requirement of the premises for bonafide use of his son who intended to occupy the same and start his own business. It may further be pointed out that affidavit-in-evidence was filed by appellant's ather on 13.2.1983 when the appellant was still in America in connection with his higher education and he came to Pakistan only in August, 1987. Ordinarily a landlord is entitled to use his property to the best of his discretion and choice and without any restraint as the right to hold, acquire and possess a property is even guaranteed under the Constitution there are exceptional circumstances tending to show that requirement of the premises for personal use was not coupled with good faith. For instance it may be seen that after the expiry of the period of tenancy appellant's father by his letter Ex A/5 had called upon the respondent to increase the rate of rent s rent of similar premises adjacent to the disputed premises i.e. Allied Bank Limited was Rs. 2000/-per month to which also landlord had objected as being too low. In his letter he went on to say that prices had also shot up about 5-6 »times since the two agreements were signed. He had, therefore, proposed that the matter of revised rent be decided w.e.f. 1.7.1977 and 1.4.1978 as per clause 11 and 12 of the two agreements respectively. While the appellant in his evidence dishonestly denied that he filed this case falsely as the respondent refused to pay enhanced rent, appellant himself conceded that there was a dispute between his father and the respondent over the enhancement of rent. 22. Respondent's stand from the commencement of the proceedings has been that his eviction was sought on his refusal to agree to exhorbitant rate of rent and after the disconnection of water supply he having approached the Controller for restoration of amenities appellant had filed this case as a counter-blast. It is a matter of record that the appellant took no steps for restoration of the water supply disconnected in February, 1978 for non-payment of dues on account of the circumstances create by him including non-payment for the period prior to the commencement of tenancy in favour of the respondent I am conscious of the legal position that mere demand of higher rent does not by itself disentitle a landlord to seek ejectment of this tenant on the ground of personal requirement but his circumstance coupled with other facts and grounds would give rise to a reasonable inference that the desire of the landlord was not justified and was rather tainted with malice and ulterior motives. 23. There is another aspect of the case. Admittedly appellant's father who was serving as Income Tax Officer at Karachi finally shifted to Lahore which is his home place in 1965. It is also in evidence that the appellant himself after his return from U.S.A. has been residing together with this father at Lahore and has no place to live or any other attachment or activity at Karachi. The normal presumption therefore is that he would in all probability and fairness continue to say at Lahore rather than start a new business of Electronic goods at Karachi. On his own showing he has never conducted any business after his return from America or prior to that. Even his father has no business experience as admitted by him. In law, he is not debarred from establishing a business at Karachi but factuality it seems that his desire to have the premises vacated is neither in good faith nor for bonafide occupation. Assuming for the sake of argument that he is serious to start his business in the demised premises he can conveniently use the upper story of the shop premises for the said business after minor adjustments in the structure available thereon. It is wrong to say that the Electronic business cannot be run on the first floor or second floor of the shop premises in a commercial locality of Tariq Road in P.E.C.H. Society where a lot of commercial establishments and shops are flourishing without any handicap. 24. Urging as many as possible grounds for eviction of the respondent after a dispute over the enhancement of rent and in the peculiar circumstances of the case I am of the considered view that learned Controller ightly rejected the prayer for eviction on the grounds as weU. Learned counsel for the appellant has referred to the judgments in Saira Bai v. Anisur Rehman (1989 S.C.M.R, 1366) and Raj Muhammad v. Muhammad Zarin (1980 S.C.M.R. 339) but both the cases are completely distinguishable on facts. 25. For the aforesaid facts and reasons there is no merit in this appeal which is accordingly dismissed with no order as to costs. (S.R.) Petition dismissed.

PLJ 1996 Karachi 703 PLJ 1996 Karachi 703 [Original Jurisdiction] Present: rana bhagwan das, J. announced by syed deedar hussain shah, J. Hqji ADAM ALI AGARIA-Plaintiff versus ASIF HUSSAIN & others -Defendants Suit No. 301 of 1977, decided on 25.6.1995. (i) Agreement to Sell- —Agreement to sell-Entered into-Specific Performance-Suit for- Agreement is a draft proposal and not complete agreement—Prayed in written statement-Defendant died during pendency of suit without appearing as witness-Whether arrangement was a completed contract or it was only a draft proposal—Question of-Author of the written statement being not available for cross examination and plaintiff having no opportunity of cross-examining him, same cannot be taken or accepted as evidence of facts-Held :-Agreement executed between parties was a completed contract and not a draft proposal. [P. 711] B (ii) Agreement to sell- —Agreement to sell-Entered into-Mutually agreed to extend time for unspecified period to complete sale, as vendor was surely before High Court and he required time to discharge of it-Agreement revoked unilaterally by vendor alleging that time was essence of contract- Whether time was not to be essance o contract ? If so what is its effect- Question of-In case relating to transfer of immovable properly ordinarily time is not to be considered as essence of the contract but at any rate a party in breach of contract cannot be permitted to take advantage of its own wrong and to blow hot and cold at one and same time-Vendor being guilty of contravention of terms of contract itself. [P. 712] D 1983 SCMR 559 ref. (iii) Contract-- —Contract of sale-Entered into-Revoked unilaterally-Held : Contract of sale being complete & valid in all respects could not be unilaterally revoked no utter disadvantage of vendee who lost no time in repudiating allegations of vendor by sending a prompt reply-Held further: That in event of wrongful repudiation by a contractor it would not bind other party to contract and defendant had least justification to put an end to contract [P. 712] C (iv) Specific Relief Act 1877 (1 of 1877)- —Section 22--Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. [P. 713] E (v) Specific Performance- —Agreement to sell-Entered into--Repudiated unilaterally by vendor by attempted to take advantage of his own wrong and breach of contract on his part-It is well settled that party in breach of commitment cannot seek iscretion of Court in his favour as it would amount to providing a premium on his own wrong-Held: There is no cogent and convincing reason to refuse specific performance in favour of the plaintiff who has approached court with clear hands. [P. 713] F PLD 1991 SC 905 and 1991 SCMR 2189 ref. (vi) Written Statement- —Specific Performance of an agreement to sell-Suit for-Defendant died during pendency of suit and without appearing for his evidence—Whether the averments made in a written statement after death of author can be taken into consideration as a valid piece of evidence-Question of— Acceptance would give rise to serious complications in law which may lead to commit violence on statute. [P. 710] A Mr. H.A. Rehmani, Advocate, for Plaintiff. Mr. Habibur Rehman, Advocate, for Defendants. Dates of hearing: 3.5.1995 and 16.5.1995. judgment Rana Bhagwan Das, J.--The plaintiff has brought this suit for specific performance of an agreement to sell in respect of Bungalow No. GRE-317-VH-A-E-138-G/2 & 1/1. Garden East, Karachi. 2. An agreement to sell, Ex. 6/1, was executed on 4.8.1975 by Syed Asim Hussain (since dead), father of the defendants, in favour of the

plaintiff, agreeing to sell the property in suit for a consideration of Rs. 1,35,000.00 acknowledging a sum of Rs. 7,000/- by way of earnest money. The balance consideration of Rs. 1,28,000/- was agreed to be paid a the time of execution and registration of sale deed. It was further agreed that the deceased Vendor shall within three months of the date of agreement complete the sale by executing the sale deed in favour of the plaintiff after making out a good and marketable title of the property, free from all claims, charges, demands, encumbrances etc. It was stipulated in para 12 of the agreement that deceased Syed Asim Hussain had stood surety in the sum of Rs. 10.000/- before the High Court of Sindh and that he shall get the sai surety discharged and obtain a certificate of discharge of surety and get the entry to this effect removed from the record of rights in the office of City Deputy Collector, Karachi. It is pleaded that the deceased was unable to comply with the above requirement within the prescribed period of three - months with the result that the parties mutually agreed to extend time for unspecified period but as early as possible. Later, the plaintiff received legal notice dated 4.11.1975 sent on behalf of Syed Asim Hussain informing him that on account of breach of his promise and time being the essence of the contract, the Vendor had cancelled the contract A crossed cheque dated 28.10.1975 in the sum of Rs. 7,000.00 was also enclosed with this notice. The plaintiff by his letter dated 19.11.1975 replied to the legal notice repudiating all allegations and calling upon the deceased Vendor to complete the sale transaction by executing the sale deed as early as possible. Original cheque for Rs. 7,000.00 sent on behalf of the Vendor was also returned alongwith this reply. 3. Thereafter, the plaintiff issued a legal notice dated 26.1.1976 to the deceased vendor through his advocate finally calling upon him to perform his part of the contract within 15 days of the receipt of the notice failing which be shall be constrained to take appropriate legal proceedings against him. Expressing his readiness and willingness to perform his part of contract and pleading that time was not the essence of the contract, the plaintiff filed this suit against the deceased vendor on 21.4.1976. After the death of the deceased during pendency of the suit, present defendants were joined as his legal heirs. 4. The defendant resisted the suit and filed a written statement denying that there was any concluded contract between the parties. He took the plea that agreement dated 4.8.1975 was only a draft proposal. It was alleged that the notice dated 4.11.1975 given by the Advocate for the deceased defendant was contrary to instructions. All other allegations were denied. 5. On the pleadings of the parties, following issues were settled : 1. "Whether the agreement dated 4.8.1975 was a completed contract, or it was only a draft projposal ? 2. Whether the time for performance of pre-requisite formalities was extended by mutual agreement of parties ? 3. Whether time was not to be of the essence of the contract? If so what is its effect ? 4. Whether the plaintiff is entitled to specific performance of the contract ? If so on what terms ? 5. Relief? 6. In support of his case, plaintiff, Adam All, examined himself as .W. 1, Muhammad Bhai P.W. 2 (marginal witness) while the defendants led the evidence of Syed Wasif Hussain, defendant No. 3, in rebuttal. A number of documents were produced in evidence which shall be discussed later on. 7. I have heard learned counsel for the parties and gone through the relevant evidence. My findings on each of the issues are as under for the following reasons:- FINDINGS 8. Issue No. 1 The agreement was a completed contract. Issue No. 2 Not pressed. Issues No. 3 As under. Issue No. 4 In affirmative. Issue No. 5 Suit decreed with costs. ISSUE NO. 1. 9. The plaintiff in his evidence produced the agreement dated 4.8.1975 Ex. 6/1, which is duly signed by the defendants' predecessor in interest, Syed Asim Hussain. According to the plaintiff, attesting witnesses, Qazi Ramzan and Muhammad Bhai, had signed the agreement at the time of execution whereas the defendants denied the signature of P.W. Muhammad Bhai and relied upon a carbon copy of the agreement Ex. 8/1 and admitted the signature by attesting witness, Qazi Ramzan, (since dead). It may be observed here that Ex. 8/1 was not confronted to the plaintiff or attesting witness, Muhammad Bhai, and was produced in court after a lapse of about one year of the close of plaintiffs evidence with the leave of the court in CMA 614 of 1991 under Order XIII Rule 2 CPC. 10. A bare reading of the agreement to sell unequivocally shows that there is a proposal to sell the property in suit by the vendor and acceptance by the plaintiff for a valuable consideration. Payment of Rs. 7,000/- towards part of the purchase price is also acknowledged in the agreement itself and the terms and conditions in the contract are also specific and unequivocal. The agree ent recites that the balance consideration of Rs. 1,28,000/- shall be paid by the vendee to the vendor at the time of execution and registration of the sale deed. It further states that within three months, vendor shall complete the sale bye executing the deed of sale in favour of the vendee and get the same duly registered with the Sub-Registrar after making out a good and marketable title to the property in suit, free from all claims, charges etc.There is a stipulation of delivering vacant possession of the property by the „. vendor at the time of execution and registration of the sale deed. It is provided in the agreement that the vendor shall construct or erect cement block common wall between his plot and that of the adjoining owner, Mst. Sheerin Begum, before delivery of the vacant possession. He shall also keep the vendor indemnified against any loss or damage due to any defect in the title, or otherwise in respect of the property or any part thereof. With regard to the encumbrance on the property in suit, the agreement shows that the vendor stood surety in the sum of Rs. 10,000.00 before the High Court of Sindh and Baluchistan and he shall get the said surety discharged from the High Court, obtain a certificate of discharge and get the entry to this effect removed from the record of rights. 11. Learned counsel for the defendants contended with vehemence that the intention of the parties has to be gathered from the contents of the agreement which must be construed strictly. According to him, intention of the parties is of cardinal importance and in the present case, intention of the parties was merely to execute a memorandum of understanding to be complied with within three months positively. Learned counsel submitted that in case the property in suit was not released from the encumbrance and charge created in favour of Nazir of the High Court of Sindh, understanding would come to an end and there would be no concluded contract between the parties. With reference to paragraphs 1 to 4 of the plaint learned counsel urged that these averments would signify that in ase sale was not completed, the agreement would lapse and come to an end. In this connection he referred to page 2 of the cross-examination of the plaintiff, in which the plaintiff innocently accepted the suggestion that the defendants failed to get correction made within three months in the record of CDC, regarding encumbrance of the property with the High Court and he failed to get the tenants removed from the property within three months. It is admitted position that the deceased defendant did not take steps for discharge of his liability as surety and did not obtain the discharge certificate from the High Court within a period of three months as stipulated in the agreement of sale because the letter from the High Court, Ex. 8/4, is dated 31.12.1979. Be that as it may, this part of the contract was required to be performed by the deceased defendant himself but this aspect of the case is not relevant for the purpose f deciding this issue. 12. Mr. Habibur Rahman, learned counsel for the defendants laid much emphasis on the admission by the plaintiff that the defendants could not get the tenants removed from the property within three months but I am least impressed by this submission of the learned counsel. Undoubtedly, the agreement, Ex. 6/1, speaks of handing over vacant possession of the property at the time of execution and registration of the sale deed, but it has no reference to the occupation of a part of the property by tenants. At any rate, there was no stipulation between the parties that the defendant vendor shall get the tenants ejected before the execution of the sale deed. 13. In case there were/are some tenants in occupation of a portion of the property in the suit it was incumbent on the Vendor to disclose this fact in categorical terms and inform the Vendee that the agreement of sale would be subject to encumbrance of the tenants occupying a portion of the properly in suit. As observed earlier, there is no mention of any tenant or tenancy rights in favour of any person in the agreement of sale Ex. 6/1. At the trial Vendor having adduced evidence to the effect that some tenants are occupying a portion of the property in suit this circumstance would neither frustrate the contract nor absolve the vendor of his duty to perform his part of the contract enjoined by law. Infact, delivery of vacant possession of the property in suit in favour of the vendee would include possession of the portion with the vendor as well as the portion in occupation of the tenants. After acquiring a valid title to the property, plaintiff would be entitled to deal with the tenants in accordance with law. 14. Learned counsel for the defendants relied upon House Building Finance Corporation v. Shahenshah Humayun Cooperative Housing Society and other (1992 SCMR 19). In this case it was observed by the Honourable Supreme Court that the deed of contract has to be construed strictly and literally without deviating or implying anything which is not supported by the intention of the parties and the language of the document. Nothing can be implied in a contract which was inconsistent with its expressed terms. At page 28 of the report, it was observed that the main purpose of construction of terms of a written agreement is to find out the intention of the parties to the agreement. By looking to the words used one has to construe the intention which has persuaded the parties to enter into the agreement. Where the plain and ordinary meaning may lead to inconsistency with other expressions used in the document or absurdity then such plain and ordinary meaning can be modified to avoid absurdity and inconsistency, because the law favours to save a deed, if possible. Courts are always anxious to adopt a reasonable construction by which the intention of the parties can be spelt out. 15. In the present case I have already reproduced salient features of the agreement of sale which do not admit of any ambiguity. The terms and conditions of the agreement between the parties have been expressed in clear and unequivocal terms and the only inference that can be drawn from the contents of the agreement is that the parties had mutually entered into a valid, lawful and a concluded contract. 16. Maxwell on the Interpretation of Statues Twelfth Edition on page 212 states as under: "On the general principles of avoiding in-justice and absurdity, any construction will, if possible, be rejected (unless the policy of the Act requires it) if it would enable a person by his own act to impair an obligation which he has undertaken, or otherwise to profit by his own wrong. A man may not take advantage of his own wrong. He may not plead in his own interest self-created necessity." 17. Defendants, therefore, cannot be permitted to take advantage of their own wrong by saying that there was no completed contract between the parties or that it was a mere draft proposal which was never finalized. 18. "Whether an agreement is a complete bargain or merely a provisional agreement depends on the intention of the parties as deducible from the language used by the parties on the occasion when the negotiations take a concrete shape". This question was considered by Inamullah, J.- in Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 (W.P.) Karachi 521). Apart from other reasons learned Judge relied upon the judgment of the Privy Council in the case of Hadley v. The London Bank of Scot Land (AIR 1923 P.C. 47) which cannot be expressed in a better way than the judgment itself which reads as under:- "I have always understood the rule of the court to be that, in a case where there is a clear and undoubted contract as to the validity of which no dispute arises for the sale of the property, the Court will not after that contract has been entered into permit the vendor to transfer the legal estate to a third person notwithstanding the Us pendens will operate against that third person, and I think that as well founded in principle, because the effect of the contract is to pass the whole equitable interest out of the Vendor. So long as the contract is an undisputed contract the whole of the property is in equity transferred from the vendor to the purchaser; the vendor the becomes a trustee for the purchaser; the vendor then becomes a trustee for the purchaser and then trustee cannot be permitted to deal with the legal estate so as to inconvenience the purchaser." 19. Mr. Habibur Rehman, learned counsel for the defendants, however, sought to rely upon the contents of the written statement filed by the deceased defendant Syed Asim Hussain who without appearing for his evidence expired during the pendency of the suit on 25.9.1985. In the written statement the deceased had taken the stand that the draft was only to service as a basis for further negotiations and discussions between the parties; and only after such discussion and necessary amendment, the agreement would have been finalized and written out on a duly stamped paper. In para 15 of the written statement he asserted that he wanted to sell the property in dispute and had contacted several brokers. In this connection, Qazi Muhammad Ramzan, a broker also contacted the defendant. The defendant having been postered by the brokers made it quite— ~ clear to them particularly to Qazi Muhammad Ramzan, that he would not sell this property for less than rupees two lacs. He further told Muhammad Ramzan that he should bring offers only from genuine buyers who were willing to purchase the property for Rs. two lacs. In July, 1975 Muhammad Ramzan brought a draft of agreement typed on a simple paper purporting to be an agreement for sale of defendant's property to the plaintiff for a price of Rs. 1,35,000/- alongwith a cheque for Rs. 7,000/- bearing date 4.8.1975 and drawn on Muslim Commercial Bank. The defendant refused to accept the < offer contained in the said draft. He flatly told the said broker that he could not accept any offer for less than Rs. 2,00,000/- because he shall have to spend Rs. 40.000/- to Rs. Rs. 50,000/- for getting a suitable rented accommodation for himself and his family and a further sum of about Rs. 25,000/- will be spent for providing alternate accommodation to his tenant of the ground floor of the building. 20. Learned counsel persuaded this court to accept these averments of the deceased defendant as a part of evidence without proving the same ' through the defendant's son Syed Wasif Hussain who appeared in the witness box. In this connection I may refer to the celebrated judgment of the Supreme Court in the case of Mst. Khairunissa and others v. Malik Muhammad Ishaque and others (PLD 1972 S.C. 25), in which it was laid down that a written statement cannot be exhibited in a case without the person filing the same being examined in court and, therefore, cannot be treated as evidence in the case under section 32 of the Evidence Act. Learned counsel for the defendants attempted to distinguish this judgment by submitting that prior to the Law Reforms ordinance, 1972 pleadings were not verified on oath whereas written statement in the present case was verified on oath by the deceased defendant. Be that as it may, I am least impressed by the argument advanced in support of the proposition that the averments made in a written statement after death of the author can be taken into consideration as a valid piece of evidence. Apart from the view taken in the aforesaid authority this view was affirmed and approved by majority judgment in Khawaja Auto Cars Ltd. v. Muhammad Yousuf (1991 SCMR 2223). In my view acceptance of contention of the learned counsel would give rise to serious complications in law which may lead to commit violence on the statute. 21. Even otherwise evidence before a court of law would include I examination-in-chief, cross-examination by the opposite party and reexamination by the party calling the witness with the leave of the court In the present case author of the written statement being not available for cross-examination and the plaintiff having no opportunity of crossexamining him the same, cannot be taken or accepted as evidence of the facts ' stated therein as contended by the learned counsel. For these reasons, I hold that agreement Ex. 6/1 executed between the parties was a completed contract and not a draft proposal. ISSUE NO. 2. 22. This issue was struck in view of the averments in the plaint and denied by the defendants but Mr. H.A. Rahmani, the learned counsel for the plaintiff did not press this issue which is accordingly dropped. ISSUE NO. 3. 23. In view of the fact that period of three months was fixed in the agreement of sale for completion of the contract learned counsel for the plaintiff did not controvert the position that time was to be of the essence of the contract. It was, however, submitted that the time was fixed for placing responsibility on the vendor to perform his part of the contract for obtaining a good and marketable title to the property with a view to execute a sale deed and get it registered. It is an admitted position that consistent with the terms of the contract deceased vendor did not obtain a certificate from the High Court within a period of three months discharging him of the encumbrance on the property and the certificate obtained form the High Court was dated 31st December, 1979 long after the period for completion of the sale agreed upon between the parties. This circumstance per se, however would not absolve the ^ndor of his legal duty to perform the part of his contract notwithstanding the expiry of period fixed in the agreement of sale. Indeed the vendor did not take steps to achieve the desired result and to discharge his obligation arising out of the agreement. On the contrary after lapse of three months he sent a letter of cancellation Ex. 6/2 to the Plaintiff alleging breach of contract on his part which was false and baseless on the face of it to the knowledge of the vendor. For the first time defendant's Advocate alleged n his letter that as per clause 8 of the agreement vendor had to construct the cement block common wall between his plot and that of the adjoining owner but it was agreed that it will be done at the cost of the defendant. The letter went on saying that the original vendor had called upon the defendant several times to arrange for money and/or do the needful by calling the masons and the building material but he did not pay any heed. Apart from the above allegations it was said that the plaintiff had also agreed to arrange for alternate accommodation of the tenant of the ground f oor but later on he had backed out. It may be observed here that both those conditions do not find any place in the agreement of sale consisting of 12 clauses. No doubt clause 8 of the agreement says that before delivery of vacant possession of the property in suit vendor shall construct and/or erect the cement block common wall between his plot and that of the adjoining owner Mst. Sheerin Begum, it does not say that the vendee shall bear the expenses. Like-wise, there is no stipulation in the agreement that he shall make alternate arrangement for accommodation of the tenant of the ground floor of the" property. The defendant having introduced entirely a new case in this letter just after the expiry of three months and cancelling the agreement of sale unilaterally could not be allowed to do so. In any case the breach of contract was committed by him, consequently he could not back out from his promise or to rescind the contract of his own will. In my view the contract of sale being complete and valid in all respects could not be unilaterally revoked to the utter disadvantage of the vendee who lost no time in repudiating the allegations of the vendor by sending a prompt reply Ex. 6/3 through his Advocate. In his reply plaintiff not only repudiated the allegations of the defendant but also expressed his readiness and willingness to perform his part of contract. He had also returned the cheque for Rs. 7,000/- to the defendant sent by him. Needless to point out in the event of wrongful repudiation by a contractor it would not bind other party to the contract and the defendant had the least justification to put an end to the contract. 24. In Zaheer Ahmed and another v. Abdul Aziz & others (1983 SCMR 559) Honourable Supreme Court observed that in a case where time was of the essence of the contract a party guilty of preventing completion of contract within time could not plead that time was of the essence of the contract. 25. Truly speaking in cases relating to transfer of immovable property ordinarily time is not to be considered as essence of the contract but at any rate a party in breach of contract cannot be permitted to take advantage of its own wrong and to blow hot and cold at one and the same time. In my view, in the present case, stipulation of time fixed in the agreement would not result in frustration of the contract and the defendant would not be entitled to revoke the same he being guilty of contravention of the terms of the contract itself. ISSUE NO. 4 26. It is true that section 22 of the Specific Relief Act gives discretion to a court to grant specific performance but the discretion must be exercised on sound judicial principles and not in an arbitrary manner. It is true that jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but it is to be guided by sound and judicial principles which are amenable to correction by a Court of appeal. It may further be noticed that section 22 gives two illustrations which are not exhaustive to demonstrate in which cases the court may decline to exercise of granting specific performance of a contract, namely, (i) where the circumstances under which the contract is made are such to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance of the contract would involve such | hardship on the plaintiff. It may also be pointed out that the above section provides that the court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. 27. It would be noticed that the defendant has not raised either of J the two grounds to defeat the claim of the plaintiff. On the contrary he has attempted to take advantage of his own wrong and breach of contract on his part. It is well settled that a party in breach of commitment cannot seek discretion of the court in his favour as it would amount to providing a premium on his own wrong. In law and equity the plaintiff has made out a strong case for specific performance of the contract and in the circumstances he is entitled to a decree for specific performance subject to payment of the balance consideration. These is no cogent and convincing reason to refuse specific performance in favour of the plaintiff who has approached the court with clean hands and has always been ready and willing to perform his part of the contract. In fact no authority is needed for this proposition yet I am benefitted by the view expressed by the Supreme Court in the case of Syed ArifShah v. Abdul Hakeem Qureshi (PLD 1991 S.C. 905) and Mrs. Mussarat ShoukatAli v. Mrs. Sofia Khatoon and others (1991 SCMR 2189). 28. In the last mentioned case Honourable Supreme Court while reiterating that grant of relief specific performance is discretionary with the court observed that the relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which dis-entitles him to the grant of equitable relief of specific performance of a contract which cannot be refused merely because it is lawful for the court to refuse it. ISSUE NO. 5. 29. As a result of my findings on issue Nos. 1 to 4 suit is decreed with costs. He shall deposit the balance consideration of Rs. 1,28,000/- in court within thirty days of the decree. The defendants are directed to execute a registered sale deed in favour of the plaintiff within thirty days of the deposit of the amount in this Court. (MGB) Order accordingly.

PLJ 1996 Karachi 714 PLJ 1996 Karachi 714 [Original Civil Jurisdiction] Present: rana bhagwan das, J. PRUDENTIAL INVESTMENT BANK LIMITED-Plaintiff Versus M/s. NATIONAL MOTORS LIMITED etc.»Defendants. Suit No. 212 of 1994, decided on 4.5.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)- —O.VII, R. 11 read with section 7 of Transfer of Property Act and Article 23 of the Constitution-Plaint- Rejection of—Prayer for—Plaint does not disclose a cause of action within the meaning of the term—Suit is barred by the provision contained in section 7 of the Transfer of Property Act as well as Article 23 of the Constitution-Suit is also barred by provisions contained in section 42 and 56 of Specific Relief Act—Plaint rejected. [P. 720]C,D&E (ii) Temporary Injunction- —Declaration and permanent injunction-Suit for-Temporary injunction restraining the defendant from selling transferring, alienating and for encumbering the plots-Prayer for-The plaintiff have sought injunction in relation to alienation of valuable plots owned and passed by defendant without claiming any legal right or title to the sa d plots or claiming any legal character in respect thereto-Held : Plaintiffs have miserably failed to made out a strong prima facie case for grant of equitable relief of injunction—Balance of convenience would lie in favour of defendant rather than plaintiff, who are not likely to suffer any irreparable injury in event of temporary injunction being refused-Temporary injunction refused. [P. 718] A & B AH. Mirza, Advocate for Plaintiffs. Z.E7. Ahmed and S. Iqbal Ahmed, for Advocates for Defendants Nos. 1 and 2. None for Defendant No. 3. Date of hearing: 4.5.1995. order In both the suits filed by the plaintiff bank for declaration and permanent injunction, the plaintiffs have prayed for a temporary injunction seeking to restrain defendant No. 1 or any one acting on their behalf from transferring or alienating three plots of land described in the application as well as para 18 of the plaint. riefly stated, it is the case of the plaintiff bank that on privatisation of defendant No. 1, defendant No. 2 submitted a bid to the Privatisation Commission for acquiring the shares of the said defendant. In connection with the said bid, at the instance of defendant No. 3, the plaintiff bank gave a guarantee in favour of Privatisation Commission dated 14.1.1992 guaranteeing payment of Rs. 90,266,886.00 to the Privatisation Commission being balance 60% of the price of the shares in terms of the agreement for sale between the said Commission and National Motors Limited. It was agreed that the said guarantee shall be secured, inter alia, by a registered charge over the fixed assets of defendant No. 1. In suit No. 212 of 1994, it has been averred that in addition the plaintiffs gave an undertaking-cum-counter guarantee in favour of Muslim Commercial Bank Limited in the sum of Rs. 129,766,885.00 as security. The said counter guarantee also guaranteed the fulfilment of all obligations relating to creation of charge on the assets of defendant No. 1. It is further stated that the bid of defendant No. 2 was accepted by the Privatisation Commission and 51% shares of M/s. National Motors Limited were transferred in favour of defendant No. 2, whose nominees were also inducted in the Board of Directors. The nominees of defendant No. 2 enjoy majority on the Board and their nominee, Lt. Gen. (Retd.) M. Habibulalh Khan Khattak, was appointed as its Chief Executive. It is pertinent to note that earlier defendant No. 2 had entered into a joint venture agreement with defendant No. 3 for acquiring the shares and management of National Motors Limited jointly and pursuant to the said agreement, defendant No. 2, in turn, transferred/sold 25% of the shares in favour of defendant No. 3 after acquisition of the shares and management of National Motors Limited by defendant No. 2. The plaintiffs repeatedly requested the management of defendant No. 1 to create registered charge on their fixed assets as agreed and approved by the Board of Directors in its meeting held on 24.2.1992. Though the said defendant created a charge on the stocks it failed and neglected to create charge on its fixed assets inspite of repeated requests. In November 1992, the plaintiffs came to know that defendant No. 1 was contemplating to sell two bearing No. D-179-A and D- 179-B situated in Site belonging to them with an intention to dilute the security. The plaintiffs vide their letter dated 30.11.1992 in Suit No. 212/94 intimated Muslim Commercial Bank Limited of the intended sale with a request to forbid defendant No. 1 from selling the plots it would dilute the security. On their part, the plaintiffs in Suit No. 211/94, by letter dated 1.12.1992, protested against the proposed sale and asked defendant No. 2 to complete all formalities to ere/ate the first charge on all fixed assets of National Motors Limited without further delay, who sent an evasive reply dated 24.1.1993 and avoided to create the agreed charge. Sale of the said plots was also opposed by defendant No. 3, a joint venture defendant No. 2, and legal proceedings were commenced by way of Suit No. 779/92 in the High Court of Sindh wherein a restraint order had passed against the sale of the said plots. On 18.3.1994, defendant No. 1 published notice of the meeting of the Board of Directors proposed to be held on 10,4.1994 showing that they intended to sell three other plots belonging to the company, in respect of which the present suits have been filed seeking the following reliefs:- (a) Declaration that the defendant No. 1 is not entitled to sell and transfer Plot No. B-67, S.I.T.E., Hub Chowki Road, Karachi measuring 4.6 acres and Plot No. B-41, S.I.T.E., Hub Chowki Road, Karachi, measuring 2.50 acres and Plot at Bandukwalla Building, I.I. Chundrigar Road, Karachi, measuring 3120 sq.yds. (b) Permanent injunction restraining the defendant No. 1 from selling, transferring, alienating and/or encumbering the plots mentioned in prayer (a) above. Defendant No. 1 contested the prayer of the plaintiffs and filed a counter affidavit of the Secretary and General Manager (Finance), controverting the contents of the plaint as well as the affidavit filed in support of the CMA. It has been contended that the plaintiffs have neither any cause against defendant No. 1 nor any relief in the suit can be granted by the court of law. It was clarified that a joint venture agreement dated 30.12.1991 was executed between defendant No. 2 on the one hand and Prudential Capital Management Limited, Essar Assets Management (Pvt.) Limited and Third Prudential Modaraba on the other hand and that the agreement was not between Defendant Nos. 2 and 3. As regards the bank guarantee, it was stated that it was given by the plaintiffs at the request of Prudential Capital Management Limited for which Prudential executed a counter guarantee dated 14.1.1992 in favour of Muslim Commercial Bank Limited and not at the request of National Motors Limited. It was pointed out that Prudential Capital Management Limited, being a necessaiy party and liable to pay under the counter guarantee, the plaintiff bank ought to have claimed the suit amount against it instead of defendant No. 1. Payment of Rs. 34 million by defendant No. 2 to Privatisation Commission within a period of three years was guaranteed and the bank guarantee valid upto 14.1.1992 has now been substituted by a fresh guarantee dated 22.1.1994 for a reduced amount of Rs. 90,95,000.00. It is the case of this defendant that by Resolution No. 4 of the Board of Director's the Company agreed for the creation of floating charge on the fixed assets of the Company in favour of Muslim Commercial Bank Limited in respect of stuck-up loan of Rs. 34,000,000.00 payable to Government of Pakistan and to PACO in respect of its dues of Rs. 5,500,000.00 as mentioned in letter dated 1.12.1992. Creation of charge for Rs. 90,266,886.00 as alleged by the plaintiff was disputed. In reply to the letter dated 1.12.1992 addressed to Defendant No. 2, defendant No. 1 vide its letter dated 24.1.1993 informed the Muslim Commercial Bank Limited that out of Rs. 39,500,000.00, the first instalment with mark-up was already paid on 15.7.1992 and the second instalment with mark-up was paid on 15.1.1993, thus reducing the outstanding loan to Rs. 19,750,000.00. Besides, plaintiff MCB was informed that National Motors Limited had already created charge on its stock to the extent of Rs. 39,500,000.00 and was prepared, if so desired by the plaintiff, to create charge to the extent of remaining amount of Rs. 19,750,000.00 on its main plant valued at Rs. 180,000,000.00 but no response was received. Subsequently, third instalment of Rs. 8,500,000.00 had also been paid alongwith mark-up of Rs. 1,190,000.00 on 14.7.1993. For the reduced outstanding amount of Rs. 9,095,000.00, the plaintiff MCB had issued a fresh guarantee dated 22.1.1994 valid upto 31.1.1995 in favour of Privatisation Commission, Government of Pakistan. It was contended that the plaintiffs guarantee was only an assurance that in the event, instalments were not paid by defendant No. 2, the same would be payable by the plaintiffs. With the payment of instalments in time and the amount of guarantee reduced to the extent of Rs. 9,095,000.00, the plaintiffs had not incurred a penny towards the guarantee, therefore, the allegations against defendant No. 1 and apprehensions shown were unfounded. With regard to Suit No. 779/92, it was urged that the sale of plots was not opposed by defendant No. 3 nor was the suit filed by it. Defendant No. 1 further urged that their company had suffered huge losses as a result of the abovementioned suit. It was pointed out that the plaintiff MCB was holding 3,343,218 shares of National Motors Limited of the face value of Rs. 10.00 each and the stock market value on the date of filing the suit was Rs. 38.00 per share, indicating thereby, the plaintiffs wee holding shares of the value of Rs. 127,042,284.00. Thus filing of the suit was mala fide and likely to put National Motors Limited in jeopardy and causing huge financial losses. It may be observed that in Suit No. 212/94 defendant No. 1 apart from contesting the application for temporary injunction have filed CMA 2304 of the 1994 under Order VII Rule 11 C.P.C. seeking rejection of the plaint on the ground that was barred by clauses (a) and (c) of the aforesaid provision of law. I have heard the learned counsel appearing for the parties and gone through the material placed on record. It would appear from a narrative of this judgment that the plaintiffs have sought the declaration and permanent induction in relation to alienation of valuable plots owned and possessed by defendant No. 1, without claiming any legal right or title to the said plots or claiming any legal character in respect hereto. Assertion to the effect that defendant No. 1 had agreed to create a charge on their fixed assets or that inspite of repeated requests, they had failed and neglected to create a charge thereon or that they were attempting to sell away part of their assets, in my view, would not furnish a good cause to the plaintiff to seek discretionary relief of injunction of the nature asked for. It would appear that the right to acquire, hold and dispose of property in favour of defendant 'No. 1 is guaranteed by Article 23 of the Constitution subject to any reasonable restrictions imposed by law in the public interest, which cannot be lightly taken away by this court thereby creating restrictions to the free use and enjoyment of the property held by National Motors Limited. This right is further caused and guaranteed by Section 7 of the Transfer of Property Act, which provides that every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent too transfer such property either wholly or in part, and either absolutely or conditionally to the extent and in the manner allowed and prescribed by any law for the time being in force. It has been rightly pointed out that in case the suit is decreed in terms of the prayer, defendant No. 1 would be deprived of dealing with his property for all times to come and he would have to file another suit to obtain release from the decree for a permanent injunction. It would thus appear that the plaintiffs have miserably failed to make out a strong prima facie case for the grant of equitable relief of injunction. In the peculiar circumstances of this case, in my view, remedy of the plaintiffs, if any, for breach of promise or commitment on the part of defendant No. 1, may lie in a suit for damages and not in a suit for declaration and permanent injunction as prayed for. On merits, it would appear that defendant No. 1 has been paying periodical instalments to the Privatisation Commission of Pakistan as agreed and there is no imminent threat or danger to the guarantee furnished by the plaintiff bank with regard to the obligation of defendant No. 1 towards Defendant Nos. 2 and 3 as well as Privatisation Commission. Needless to observe, in the given circumstances, balance of convenience would lie in favour of defendant No. 1 rather than the plaintiffs, who are not likely to suffer any irreparable injury in the event of temporary injunction being refused. Learned counsel for the plaintiffs contended that the plaintiffs were entitled to seek performance of the agreement against defendant No. 1 under Section 3 of the Specific Relief Act. I am least impressed by this argument as Section 3 of the Specific Relief Act is the interpretation clause which interprets and defines "obligation", "trust", "trustee" and "settlement" and does not confer any right to seek specific performance. Besides, in the present case, the plaintiffs are not seeking the enforcement of any agreement or contract but seeking a restraint order depriving defendant No. 1 of their right to freely enjoy their property. The learned counsel also referred to the case of Satnarain Gurwala v. Hanuman Parshad and another, (AIR (33) 1946 Lahore 85), in which the view taken was that a suit for declaration that rejection of plaintiffs nomination paper was illegal and that defendant had not been elected as member, was maintainable. Learned counsel for defendant No. 1 referred to the case ofAlvi Sons Limited v. Government of East Pakistan and others, (PLD 1968 Karachi 222), in which the view taken was that suit for injunction that defendant bank be restrained and prohibited from paying over guarantee amount to person entitled to guarantee arranged for by plaintiff was not maintainable. Surety bank was entitled under Section 145 of the Contract Act, 1872, to indemnify itself only if guarantee was rightfully paid. Reference was also made to the dictum laid down by the Supreme Court in the case of M.A. Naser v. Chairman Pakistan Eastern Railways and others, (PLD 1965 S.C. 83), in which it was held that under the provisions of Section 42 of the Specific Relief Act, 1877, a person entitled to any "legal character" or to "any right to property" can institute a suit for a declaration relief of respect of his title to such legal character or right to property. This judgment was followed in the Karachi case referred earlier. Reference was also made to the case of Abdur Rehman Mubeshir and three others v. Syed Amir All Shah Bukhari and others, (PLD 1978 Lahore 113), in which it was held that negative declaration in declaratory suit can be granted on principle that what can be done directly can also be justified if done indirectly. Such declaration must, however, also be one affecting some threatened injury or infringement of plaintiffs' right. For all these reasons, both the CMAs for temporary injunction are dismissed. Adverting to the application for rejection of plaint, it would appear that according to the plaintiffs, cause of action arose when the plaintiff bank issued the counter guarantee and when the defendant No. 1 was asked to create charge on the fixed assets of the Company and the said defendant failed to do so and attempted to sell two plots belonging to the Company and on 18.3.1994 when the notice of the meeting of the Board was published. It would be seen that the plaintiffs did not disclose as to in whose favour charge was agreed to be created by defendant No. 1. At any rate, it has not been pleaded that guarantee was furnished at the instance of defendant No. 1. Besides, it is not the case of the plaintiffs that Muslim Commercial Bank Limited has paid any of the instalments on account of default of defendant No. 1 nor have the plaintiffs been asked to pay any amount of instalments by Muslim Commercial Bank Limited. It would be seen that no obligation of defendant No. 1 would arise in respect of any counter guarantee furnished by the plaintiff bank to the Muslim Commercial Bank Limited. It would thus seem that the plaintiffs does not disclose a cause of action against defendant No. 1, whereas no relief has been sought against defendant Nos. 2 and 3 to have been joined as proper parties to the suit. Learned counsel for the plaintiffs relied upon para 5 of the plaint in which it was stated that the guarantee shall be secured by a registered charge over the fixed assets of defendant No. 1 in favour of Muslim Commercial Bank Limited. Besides, the plaintiff bank gave an undertaking-cum-counter guarantee in favour„ of Muslim Commercial Bank Limited, which also guaranteed the fulfilment of all obligations relating to creation of charge on the assets of defendant No. 1. The plaint does not recite that the counter guarantee was furnished at the instance of defendant No. 1 or that they had undertaken to create a charge over their fixed assets and, more particularly, the plots of land involved in Jf Ithe suit. It could, therefore, be legitimately said that the plaint does not ; (disclose a cause of action within the meaning of the term. It would further appear that the suit is barred by the provisions contained in Section 7 of the Transfer of Property ct as well as Article 23 of the Constitution, which guarantee the right of a citizen to acquire, hold and dispose of his property subject to reasonable restrictions. In case this right is guaranteed by the Constitution and the law of land, it cannot be taken away by the plaintiffs by way of this suit on the averments made in the plaint. No doubt, the right has been secured subject to law for the time being in force, but in the peculiar circumstances of the case, there is no law warranting a restraint or restriction on the power of defendant No. 1 to free use and enjoyment of their right to deal with the property in any manner desired by them. The Plaintiffs having failed to disclose a legal right or title to the property involved in the suit, the suit would also be barred by the provisions contained in Sections 42 and 56 of the Specific Relief Act. In any event, no permanent injunction restraining defendant No. 1 from transferring or alienating their property can be granted against them, which, otherwise is not warranted by law. No submission to the contrary has been urged on behalf of the plaintiffs which would show that the suit is barred by law and not maintainable in the present form. For these reasons, I would grant CMA 2304 of 1994 and direct the rejection of the plaint. (M.G.B.) Order accordingly.

PLJ 1996 Karachi 721 PLJ 1996 Karachi 721 [Original Civil Jurisdiction] Present: RASHEED A. RAZI, J. MESSRS FINE FOOD INDUSTRIES-Plaintiff versus THE AGRICULTURAL DEVELOPMENT BANK etc.-Respondents. Suit No. 185 of 1994, heard on 28.9.1995. Civil Procedure Code, 1908 (Act V of 1908)-- —0. VIII R. 10 read with Section 6(l)(a) of Banking Companies (Recovery of Loans) Ordinance, 1979-Recoveyr of Loans as arrears of Land Revenue-Permanent injunction-Suit for~Returning of Plaint-Prayer for-Special Court in exercise of its civil jurisdiction have, in respect of claim filed by a Banking Company against a b rrower or by a borrower against a banking company in respect of or arising out of a loan in which outstanding amount of loan does not exceed ten million rupees, all ower vested in a Civil Court under Civil Procedure Code, 1908-Held: No Court other than a special court thus, shall, have or exercise any jurisdiction with respect to above matter-Suit is transferred to Special Court established under Banking Companies (Recoveiy of Loans) Ordinance, 1979. [P. 723] A PLD 1993 Kar. 107 rel. Mr. J.H. Rahimtula, Advocate, for Plaintiffs. Mr. Rizwan Ahmed Siddiqui, Advocate, for Defendant No. 1. Date of hearing: 28.9.95. order Defendant No. 1 has filed this application (CMA No. 1839/95) under Order VII, Rule 10, C.P.C. praying that the plaint be returned to the plaintiff for presenting the same before the Special Court having jurisdiction in the case. One of the grounds of the defendant No. 1 is that the subject matter of suit is below Rs. 10 million as such, the proper forum available to the plaintiff is the Special Court, constituted under Section 6(l)(a) of the Banking Companies (Recoveiy of Loans) Ordinance, 1979. 2. The plaintiff is a private limited company and has filed the suit for permanent injunction against all the defendants and for damages of Rs. 8.66 million against defendant No. 1. The case of the plaintiff is that initially in the year 1985 the defendant No. 1, the Agricultural Development Bank (hereinafter referred as ADBP) extended loan of Rs. 3.300 million for expansion of their plant at Karachi which was subsequently enhanced. The plaintiff asked from the defendant No. 1 (ABDP) for increase in the working capital loan from Rs. 1.50 million to Rs. 2.50 million which was sanctioned vide Annexure C-l to the plaint but the defendant No. 1 unilaterally imposed certain other conditions which were not acceptable to the plaintiff. The plaintiffs grievance is that for furnishing additional security, they had to raise their assets which resulted in incurring of additional expenses of Rs. 2.2 million but the defendant disbursed a small amount of only Rs. 1.54 million upto June, 1988. It is further averred in the plaint that on the alleged failure of the plaintiff to repay/adjust the loan within the stipulated time, the defendant No. 2, namely, the Assistant Commissioner, Karachi East under the direction of defendant No. 1 issued notices for recoveiy of loan and to initiate action under section 81 of the Land Revenue Act. Subsequently, on 18th December, 1990, the defendant No. 2 issued another notice, this time under Section 82 of the Land Revenue Act, 1967. 3. The plaintiffs is now resisting this claim/action of the defendant No. 1 on the plea, inter alia, that the amount claimed is being disputed bonafide by the plaintiff as the amount shown in the notices issued by the defendant No. 2 was not the amount due or recoverable from the plaintiffs. 4. On the pleas briefly stated above, the plaintiffs have prayed for the grant of the following reliefs:- (a) Injunction restraining the Defendants, their agents and servants and those working under them from taking action or making claim or recoveiy against the Plaintiffs under the provisions of the Land Revenue Act or through the Revenue Authorities; (b) Decree against Defendant No. 1 in the sum of Rs. 8.66 million and interest on judgment at 20% per annum from date of suit till payment; (c) Cost of suit; (d) Such further and or other relief as the nature and circumstances of the case may require. 5. I have Mr. J.H. Rahimtoola, Advocate for the Plaintiffs and Mr. Rizwan Ahmed Siddiqui, Advocate for Defendant No. 1 in support of their respective contentions. Mr. Rizwan Ahmed Siddiqui referred to the case of M/s. Grain Systems (Pvt.) Ltd. and others versus Agricultural Development Bank (1993 SCMR 1996) and the order of this Court passed on Office Reference No. 259/74 reported in PLD 1994 Karachi 258. Mr. J.H. Rahimtoola, however argued that by virtue of Section 1(3) of the Banking Companies (Recovery of Loans) Ordinance, 1979, the provisions of the said law are not applicable to the defendant No. 1 (ADBP) and secondly this Court cannot be deprived of the jurisdiction through a Notification with retrospective effect. Lastly, he contended that defendant No. 1 is not entitled to seek recoveiy through coercive methods of Land Revenue Act as the amount outstanding against the plaintiff has not finally been ascertained or determined by a competent Court of Law. In support of his contention, learned Counsel for the plaintiffs reli upon the cases of Abdul Latif versus The Government of West Pakistan & others (PLD 1962 SC 384) and Muhammad Akbar Cheema versus The Province of West Pakistan & others (1984 SCMR 1047). 6. In order to appreciate the arguments advanced by the learned Counsel for the parties, it would be appropriate to refer to sub-sections (2) & (3) to Section 1 of the Banking Companies (Recovery of Loans) Ordinance, 1979 which reads as under: - (2) It extends to the whole of Pakistan. (3) It applies to all Banking Companies except the Agricultural Development Bank of Pakistan to which only such of the provisions of this Ordinance shall apply, and from such date, as the Federal Government may, by notification in the official Gazette, specify." It has not been denied that by Notification bearing No. F.I. (2)Bkg- IV/88-2198 dated 1.10.1992 the provisions of Ordinance, 1979 have been made applicable to defendant No. 1, namely, the Agricultural Development Bank of Pakistan. Since the application of this Ordinance to Agricultural Development Bank was not completely excluded but was made subject to the decision of the Federal Government to be notified in the Official Gazette which Notification has been duly published, the Special Court in exercise of its civil jurisdiction have in respect of claim filed by a Banking Company against a borrower or by a borrower against a banking company in respect of or arising out of a loan in which outstanding amount of loan does not exceed ten million rupees, all the powers vested in a Civil Court under the Code of Civil Procedure, 1908. No Court other than a Special Court thus shall have or exercise any jurisdiction with respect to such matters. Reference may here be usefully made to Section 6 sub-section (l)(a) and sub-section (4) of the said Ordinance 1979. A perusal of these would show that jurisdiction is barred of all Courts other than Special Court in respect of "any matter" and "all proceedings' to which the jurisdiction of a Special Court is extended under the Ordinance, 1979 including suits of such nature which involve question as to existence or otherwise of a loan and the execution of a decree passed by a Special Court including proceedings following the filing of an arbitration award and proceedings for the execution of a decree. 7. The proposition of law referred above was discussed in detail by my learned brother Mr. Wajihuddin Ahmed, J. in the case of M/s Shafiq Hanif (Pvt.) Ltd., Karachi versus Bank of Credit and Commerce International, (Overseas) Limited, Karachi (PLD 1993 Karachi 107) wherein after referring to the provisions of the "Banking Companies (Recovery of Loans) Ordinance, 1979" and the "Banking Tribunals Ordinance 1984" the learned Single Judge held:- "An examination of the quoted provisions makes it obvious that in relation to a claim filed by a banking company against a "customer" in respect of or arising out of "finance" provided by it, the jurisdiction of a Banking Tribunal in terms of sections 5(l)(a) and 5(3) of the Ordinance should be exclusive. The exclusiveness of this jurisdiction is further confirmed when section 5 (3) of the 1984 Legislation makes the tribunal also judge of "the existence or otherwise of finance", a similar legislative precedent as to "loan" being found in section 6(4) of the Banking Companies Ordinance, 1979. These are manifest departures from the general principle that a domestic tribunal, unless otherwise provided, cannot be judge of its own jurisdiction. Nonetheless, but conversely, it will still remain for the Civil Courts to see, if called to do so, as to how far the statutes have operated to curtail their jurisdiction. Here, we at once find that a Banking Tribunal, relevant to the same provisions, as referred has no jurisdiction whatever in respect of a claim filed by a customer against a banking company even though such claim may be relating to "finance" (as defined) provided by the Banking Company to the "customer". The omission appears to be deliberate because in the same context the equivalent provision in Banking Companies (Recoveiy of Loans) Ordinance, namely, section 6(l)(aj thereof clearly confers jurisdiction on a Special Court in respect of all claims whether by a banking company against "a" "borrower" or by a "borrower"' against a a banking company pertaining to a "loan" contracted within the terms of such Ordinance. It follows that if a "customer" covered by the 1984 Ordinance were to file a suit against a banking company as regards "finance" provided to him and covered by the Ordinance, he cannot file such an independent suit before a Banking Tribunal." The law thus interpreted was cited with approval by the Hon'ble Supreme Court of Pakistan in the case of M/s. Grain Systems (Pvt.) Ltd., and the view of the learned Peshawar High Court in the case of Haji Nabiullah and others versus M/s. Habib Bank Ltd. and others (PLD 1990 Peshawar 17) (wrongly printed as Habibullah in the case of Shafiq Hanif (Pvt.) Limited) was held to be legally incorrect. 8. Having made observations as above, the Hon'ble Supreme Court also examined the legal controversy between the parties referred to the relevant provisions of the Ordinance and held that:- "By means of Notification No. F. I(2)Bkg-IV/88-2l98 dated 1.10.1992 the provisions of Ordinance 1979 have been made applicable to the Agricultural Bank." Hon'ble Supreme Court after examining the provisions of the Ordinance, 1979 and the Ordinance, 1984 further held:- "In the case of Agricultural Development Bank of Pakistan the Special Court constituted under the Ordinance, 1979 has the exclusive jurisdiction. The Special Court would have the jurisdiction in cases of "loans", "advance", "credit and "finance". Another difference between these two Ordinances is that a borrower may also file a claim in Special Court under Ordinance 1979 but a customer under Ordinance 1984 has no such right to approach the Banking Tribunal. There is constraint on the power of Civil Court. It cannot encroach on the domain of Special Court. The civil remedy in respect of the subject matter of the present dispute is expressly barred by the provisions of Ordinance, 1979 against the respondent bank. All the disputes between the petitioners and the bank are to be adjudicated upon by the Special Court, constituted under the Ordinance. The finding of the learned High Court on this score is unexceptionable." 9. In view of this back ground and the law discussed, above, in my opinion, this Court has no jurisdiction to entertain and tiy this suit filed by the plaintiffs. 10. Since it has been held by me that jurisdiction of this Court is barred it is not necessary for me to consider the legality or otherwise of the notices issued by the Revenue Authorities which may be raised before the Special Court. I am also informed that the Bank has already filed a suit of recovery against the plaintiffs which is pending in the Special Court at Karachi. 11. In the circumstances, I agree with the arguments of the learned counsel for the defendant No. 1 but instead of returning the plaint as prayed and as held by the Hon'ble Supreme Court in the case of M/s. Grain System (Pvt.) Ltd., I hereby transfer this suit to the Special Court established under the Banking Companies (Recovery of Loans) Ordinance, 1979 at Karachi for decision on merits. (MMA) Suit transferred.

PLJ 1996 Karachi 726 PLJ 1996 Karachi 726 [Original Civil Jurisdiction] Present: rasheed A. razvi, J. COMMANDER (Retd.) M.A. ANSARI-Plaintiff versus PAKISTAN DEFENCE HOUSING AUTHORITY ETC.-Defendants Suit No. 171 of 1985, decided on 3.9.1995. Civil Procedure Code, 1908 (Act V of 1908)-- —O.VI. R. 17~Declaration and permanent injunction-Suit for— Amendment of plaint-Prayer for-Contention that addition of prayers for possession will neither cause any prejudice nor hardship to defendants-­ Held: Amendment is allowed, it will neither change nature of suit no will change the cause of action-Amendment allowed. [P. 729] A PLD 1971 SC 762, PLD 1963 SC 191,1974 SCMR 131, PLD 1985 SC 345, 1994 SCMR 2240 and 1995 SCMR 69 rel. Abdul KhairAnsari, Advocate, for Plaintiff. Zafar Iqbal, Advocate, for Defendant No. 1. Habibullah Jatoi, Advocate, for Defendant No. 2. order This is an application under Order VI Rule 17 read with section 151 of the Civil Procedure, 1908 filed by the plaintiff seeking amendment in clause (ii) of the prayer clause in the plaint. Plaintiff is seeking addition of the prayer for restoration of the possession by deleting the prayers of "demolishing the encroachment". The reason given in the supporting affidavit by the plaintiff is that at the time of filing of this suit, this prayer was not included due to oversight and inadvertence. The plaintiff has filed this suit for declaration and permanent injunction against the defendants in respect of Plot No. 1-A, 1st North Street, North Circular Avenue, Defence Housing Authority, Karachi measuring 2257 square yards. 2. I have heard Mr. Abdul Khari Ansari, Advocate for the plaintiff, Mr. Zafar Iqbal, Advocate for defendant No. 1 and Mr. Habibullah Jatoi, Advocate for defendant No. 2. It is vehemently urged by Mr. Abdul Khair Ansari that by allowing amendment in the plaint at this stage, it will not change the nature of the suit. He has also stated that addition of the prayers for possession will neither cause any prejudice nor hardship to the defendants. He has relied upon the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762) and Keramat Alt and another v. Muhammad Yunus Haji and others (PLD 1963 SC 191). Mr. Zafar Iqbal has strongly opposed grant of this application on the grounds that it has been filed at a very belated stage when the evidence of the parties are concluded and the case is ripe for arguments. Mr. Jatoi has also raised plea of delay in filing the above application. He his further urged that no reasonable or sufficient cause has been known by the plaintiff for filing the above said application. 3. The case of the plaintiff is that the plot in question was initially of 2000 square yards when it was first allotted to him in the year 1963 but during the measurement in the year 1964 it was found that an area of 2545 square yards is available which has given to the plaintiff by the defendant No. 1. It is further case of the plaintiff that he has raised construction on an area of 2257 square yards as well as he constructed boundary wall on the further area of 288 square yards. He has also prayed for prohibitory injunction against the defendants. In prayer clause (iv) he has also prayed of additional reliefs as this Court may deem fit in the circumstances of the case. 4. In the case ofKeramat All and another u. Muhammad Yunus Haji and others (PLD 1963 SC 191), one of the questions which came up before the Hon'ble Supreme Court for consideration was whether the suit was barred under section 42 of the Specific Relief Act when the plaintiff to whom the relief of delivery of possession was available failed to claim such consequential relief in order to avoid payment of ad valorem Court fees. It was held by the Hon'ble Supreme Court that the Supreme Court has power even to grant leave to amend the plaint at the stage in which the said matter has reached before the Supreme Court and consequently allowed the amendment and remanded the suit to the trial Court for disposal of the same in accordance with law. It was also held in this reported case that by allowing amendment of the prayer clause by adding prayers for possession it does not alter nature of the suit. In the case of Ahmad Din v. Muhammad Shafi and others (PLD 1971 SC 762), the Hon'ble Supreme Court dismissed the appeal and held that the suit was barred but in the end of the judgment, made the following observation which is veiy relevant for the determination of this application:- "The contention of the learned counsel for the appellant that the suit could not fail merely by reason of the fact that the consequential relief by way of possession had not been claimed is not altogether without substance. If his suit was otherwise maintainable and he was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees and then to grant him relief even though he had not specifically asked for it. 5. Besides the above said two judgments, there are several reported cases of Supreme Court in which the question of amendments in the prayers clause of the plaint at belated stage was considered. In the case of National Shipping Corporation v. Messrs. A.R. Muhammad Siddik and another (1974 SCMR 131), this Court allowed an application for amendment of plaint filed by the plaintiff to raise additional plea against which the defendant went to the Supreme Court seeking leave to appeal which was disallowed and it was observed by the Hon'ble Supreme Court that:- "It cannot be gainsaid that unless respondent No. 1 is allowed to raise this plea, his subsequent suit on the new plea would be barred under Order II Rule 2 CPC." This view was followed by the Supreme Court in the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345). Several other case laws were considered in this case. In this reported case, the plaintiff filed a suit for declaration which was decreed by the trial Court The defendants went into the appeal before the first Appellate Court and the decree of the trial Court was set aside on the ground that the plaintiff should have filed a suit for specific performance of agreement and not declaratory suit. In the second appeal an application was filed to amend the plaint which was rejected by the Second Appellate Court on the ground that it was filed at belated stage and if allowed it would cause injustice and injury to the defendant. Against this order, the plaintiff went before the Supreme Court seeking leave to appeal which was accordingly granted. The Hon'ble Supreme Court allowed the amendment of the prayers and the suit for declaration was allowed to be converted into suit for specific performance. It was held that these amendments would not have caused any embarrassment to the respondents/defendants either in seeking and making similar amendments in their written statement. It was also held that this will not change the cause of action accrued to the plaintiff. The order of the High Court was set aside and the appeal was allowed. In this last reported case, Supreme Court reiterated the law laid down in the cases of Keramat Alt and National Shipping Corporation. In a recent case, the Supreme Court refused to granted leave to the defendant against the order of Lahore High Court who was aggrieved by the order of amendment in the plaint allowed by the First Appellate Court whereby prayer of specific performance was added in a declaratory suit. The Supreme Court followed the law laid down in the cases of Mst. Ghulam Bibi v. Sarsa Khan and Ahmad Din v. Muhammad Shaft and held that by mere adding an additional prayer in the plaint without changing the contents and averments made in the plaint, the nature of suit is not changed or altered. (See Mst. Barkat Bibi v. Khushi Muhammad & others (1994 SCMR 2240). It was further held that such amendment will not change even the cause of action. In the case of Muhammad Mian v. Syed Shamimullah and others (1995 SCMR 69), the plaintiff who was appellant before the Supreme Court filed a suit for declaration, injunction, and cancellation of mutation which was decreed by the trial Court. Defendant/respondent went into the appeal before the District Judge which was accepted and the suit of the appellant was dismissed. This Court maintained the judgment of the learned District Judge, inter alia on the ground that the appellant/plaintiff failed to seek relief for recovery o possession of the disputed quarter. Plaintiff went before the Supreme Court where leave was granted. At the appeal stage before the Supreme Court, appellant/plaintiff filed application for amendment of the plaint. The amendments sought were in regard to the prayer for possession and addition of Rs. 50.000/- as Court-fees. Appellants were allowed amendment and the finding of this Court was set aside. In this reported case, the rule laid down by the Supreme Court in the case of Ahmad Din v. Muhammad Shafi (PLD 1971 SC 762) was reiterated and it was held as follows:- "The application has been contested by the respondents. It has been stated that the application has been filed after long delay. The suit was filed in the year 1979, but the relief of possession was not claimed, therefore, the application for amendment may not be allowed at this belated stage. The amendment claimed by the petitioner will not alter the nature of the suit or relief. The relief of possession is a consequential relief for declaration. This relief arises out of the claim of the appellant. The amendment sought by the appellant is only of technical nature. No further evidence is required. In Ahmad Din v. Muhammad Shaft (PLD 1971 SC 762) it has been observed that "the suit could not fail merely by reason of fact that consequential relief by way of possession had not been claimed. If the suit was otherwise maintainable and the appellant was otherwise entitled to the relief it was open to the Courts to allow him to amend the plaint by adding a prayer for possession and paying the appropriate ad valorem court-fees. In Zubaida Bibi v. Hashmat Bibi (1993 SCMR 1882) the prayer for amendment of plant was allowed. We, therefore, allow the amendment at the cost of Rs. 5,000. The appellant shall pay ad valorem court-fee." 6. I have gone through the case of the parties. Amendment sought by the plaintiff is upto the extent of addition in the prayer clause. Keeping in view the law laid down by the Supreme Court and as discussed hereinabove, I am of the view that if such amendment is allowed, it will neither change the nature of suit nor will change the cause of action. I, therefore, allow the application for amendment filed by the plaintiff as prayed with cost of Rs. 5,000/- which shall be shared equally by the defendants for the reason that this application was filed at belated stage. The plaintiff is further directed to amend para-20 of the plaint and to re-assess the market value of the property for the purpose of paying Court-fees on the additional relief of possession. With these observations, C.M.A. No. 1554/95 stands disposed of. (MMA) Application allowed.

PLJ 1996 Karachi 730 PLJ 1996 Karachi 730 Present: HUSSAIN ADIL KHATRI, J. KARACHI DEVELOPMENT AUTHORITY (through its Director General Civic Centre, Gulshan-e-Iqbal Karachi)-Applicant versus SHABIH RAZA-Respondent Civil Revision Application No. 135 of 1992, dismissed on 22.6.1995. (i) Allotment-- —Allotment of plot in favour of respondent-Allotment orders not indicating number of plot-Whether document doubtful and cannot be acted upon— Evidence produced by respondent confirms that allotment order of plot was issued by applicant's office-It was practice that number of plot was not being indicated in allotment order at time of its issue, but separate endorsement used to be made of plot number as well as fact of delivery of possession and acknowledgment of delivery of possession to allottee, at time when possession used to be handed over to allottee-It is also proved that 50% occupancy value of plot was made by respondent to applicant- On basis of record maintained by applicant conclusively establish allotment of plot in dispute to respondent and particularly issuance of allotment order together with plan and delivery of possession-Held: There is no scope to doubt authenticity and validity of allotment. [Pp. 734 & 735] A & B (ii) Civil Procedure Code, 1908 (V of 1908)-- —S. 115-Concurrent finding of facts-Whether can be interfered in revisional jurisdiction by High Court-Referring to concept of jurisdiction and illegality in context of observations made in case of Kanwal Nairn vs. Fateh Khan & others (PLD 1983 SC 53), it is observed that it would cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice results therefrom- Applicant failed to point out any perversity in findings of courts below-If certain document is not considered by Courts below, such omission does not ipso facto justify interference in concurrent findings in exercise of revisional jurisdiction unless it is demonstrated that documents or evidence kept out of consideration is material or in other words would have led court to contraiy view or affected decision on any material particulars of case. [Pp. 736 & 738] C, D & E (iii) Evidence-Material- —Material evidence or material documents, mean such piece of evidence or documents, which would affect findings refused by court or in other words findings of courts would have been different if documents that have not been considered, had been looked into by court. [P. 737] E (iv) K.D.A. (Disposal of Land) Rules, 1971- —R. 10-Allotment order and possession—Whether do not confer any right in property-Question of~Appellant did not refer any provisions or rule of law in support of his submission that allotment order and possession do not confer any right on respondent-Held: Submission of learned counsel is overruled and revision application dismissed with costs. [Pp. 739 & 740] F, G & H Mr. Khalilur Rehman, Advocate, for Applicants. Mr. S. Javaid Ahmad, Advocate, for Respondent. Dates of hearing: 30.11.1995 & 7.3.1995. judgment The present revision application has been filed assailing the judgment and decree dated 9.3.1992 passed by the learned 1st Additional District Judge Karachi (Central) in Civil Appeal No. 57 of 1991, affirming the judgment and decree dated 29.5.1991 passed by the learned Ilnd Senior Civil Judge, Karachi Central in Suit No. 256 of 1990. 2. The above suit was filed by the respondent for injunction restraining the applicant from dispossessing the respondent from or demolishing the structure standing on Plot No. ST-9/1, Sector 15-A/l renumbered as SA-1 to SA-6, ST-9, Sector 15-A/l) North Karachi Township and auctioning and/or disposing of and/or delivering the possession thereof to any other person and also for mandatory injunction against the applicant herein to perform its obligation consequent upon the allotment order issued in favour of the respondent by accepting the balance occupancy value and executing the lease in favour of the respondent and further directing the applicant herein to restore the original position of the aforesaid plot, as it was at the time of allotment order and delivery of physical possession thereof to the respondent. 3. The case of the respondent as disclosed in the plaint is that the aforesaid plot was allotted to him on 22.1.1964 and the said order was intact nd continued to be in existence at the time of filing of the suit. The physical possession of the plot was handed over to the respondent on 15.3.1977 along with the site plan thereof. The respondent paid to the applicant a sum of Rs. 25,833.25 being 50% of the occupancy value, in consonance with the terms and conditions of the allotment order alongwith the ground rent, under receipt No. 146/42 dated 23.8.1978. In the meanwhile respondent received two letters dated 21.3.1977 and 21.6.1978 from the Assistant Land Manager, K.M.C. North Karachi Zone, as at that time the administrative control of the North Karachi Township was with the aforesaid Corporation. The respondent also continued to pay K.M.C. taxes as well as the demands of the Excise & Taxation Department in respect of the suit property. While the plan for construction submitted by the respondent was being processed for approval, he came across a public notice published in the issue of 20th April 1990 of Daily Jang on behalf of the applicant, for public auction of plot Nos. SA-1 to SA-6, ST-9, Sector 15-A/1 North Karachi Township, the aforesaid six sub-plots having been carved out from plot No. ST-9/1 i.e. the plot allotted to the respondent. The above act of the applicant being illegal and malafide, the respondent was constrained to file the suit. In the written-statement filed by the applicant it was admitted that the respondent was conditionally allotted plot No. ST-9/1, in Sector 15-A-l, North Karachi Township under allotment Order No. 51 Book-39, dated 27.1.1964. It was further stated that the acknowledgment of possession order shows that physical possession of the aforesaid plot was handedover to the allottee i.e. the respondent on 15.3.1977. In respect of the letters received by the Respondent from K.M.C. North Karachi Zone, the reply is that such letters were not available in the KDA record and that it was KMC's concern and KDA has no knowledge. PT-I produced by the respondent was termed as fictitious alleging that the plot was lying vacant. It was admitted that six Commercial plots were created out of Plot No. ST-9, on 19.10.1987 which were to be auctioned/allotted under the policy and that the applicant has not taken any illegal action. Both the parties had led evidence and it was on the assessment of the evidence that the suit was decreed in favour of the respondent and the appeal filed by the applicant was also dismissed. 4. I have heard the learned counsel Mr. Khalilur Rehman for the applicant and Mr. Syed Jamil Ahmad for the respondent. Learned counsel for the applicant contended that the allotment order does not confer any vested right on the plaintiff. Assailing the findings of the learned Courts below, it was urged by him that the evidence of Additional Director has not been considered by the Courts below and so also Exts. D/l and D/2 produced by him. It was next urged by him that North Karachi was surveyed in the year 1973 and therefore the question of allotment of the said land in the year 1964 was out of question. It was however conceded by him that the respondent having been shifted from Jacob Lines Area, was entitled to allotment of an alternate plot, but not the plot in question. It was urged that the plot in question is a commercial plot and under the K.D.A. Disposal of Land and Estate Regulations published in the Gazette of West Pakistan of 27.8.1965 and so also K.D.A. (Disposal of Land) Rules 1971, a commercial plot can be disposed of only in open auction and the plot of land in question allotted to the respondent being in violation of the said regulations and rules was illegal. In this regard he relied upon the case of Abdul Razzak v. K.D.A. (1991 CLC 1591). He also referred the case law in respect of the submission that the concurrent findings of facts in circumstances of the case are not immune from the interference in the revisional jurisdiction. The above submission together with the case law will be considered at appropriate place. Under the circumstances of the case it would be proper to first consider the pleadings and the evidence on record. 5. In fact that first submission of the learned counsel goes to the root of the matter. The above allotment order does not disclose the plot number and the area allotted to the respondent. The respondent in support of his case, apart from examining his attorney Muhammad Saleem Kazi, who produced the documents, examined P.W. 2 Nizamuddin Shaikh, an officer of Grade-Ill of United Bank Ltd., KDA Branch, Karachi, Syed Akbar Taqi, the Sub-Engineer of the applicant, posted in North Karachi Division, Muhammad Ashraf Jawaid, the Senior Clerk in the office of Chief Engineer KDA and Syed Agha Rizvi, attorney of allottee of Plot No. 7/1 in the same sector. The applicant's attorney deposed in consonance with the averments made in the plaint and produced Power of Attorney as Ex. P/l, Allotment Order dated 22.1.1964 as Ex. P/2, Acknowledgment of Possession Order dated 22.1.1964, as Ex. P/3, Site Plan of the Plot as Ex. P/4, receipts relating to payment of ground rent and property tax as Ex. P/5 and P/6 respectively, Certified copy of P.T.I as Ex. P/7, letters dated 21.3.1977 and 21.6.1978 received from KMC, as Ext. P/8 and P/9, attested copies of Site Plans as Exh. P/10 and P/ll, Respondent's letter dated 2.4.1990 addressed to the Minister of Housing and Town Planning as Ex. P/12, Applicant's notice published in Daily Jang Karachi of 20.4.1990, Telegraphic Notice dated 2.5.1990 as Ex. 14. Muhammad Ashraf Javod deposed that in the year 1964 he was posted in Shifting branch of KDA. Exhibit P/2 which is allotment order in respect of the plot in dispute, was prepared by him in the year 1964. It bore his signature and the signature of Abdul Wahab Khan who was then Administrative Officer KDA of the said branch. He also disclosed that during those days KDA was utilizing forms and stationeiy of the Rehabilitation Department under their own seal. On 27.9.1990 he was called by the Executive Engineer North Karachi Division to trace out the record in respect of the plot in dispute. He traced out the record and prepared the list of the plots, which is on record as Exh. P/16. Exhibit P/16 was produced by Syed Akbar Taqi who was then posted as Sub-Engineer North Karachi Division of the applicant. xh. 16 is the list of allottees who were allotted plots in Sector 15-A/l, North Karachi Township. At Serial No. 38 thereof appears the name of the respondent, who is shown to have been issued allotment order No. 39/51, in respect of ST-9/1, Sector 15-A/l. Muhammad Ashraf Javed in cross-examination by the learned counsel for the applicant admitted that Ext. p/2, the allotment order, did not how any number of the plot. He voluntarily explained that during those days it was a practice that allotment order used to be prepared by the Shifting Branch and number used to be allotted by the site office. He also stated that the endorsement on the allotment order regarding the delivery of possession of the half portion of Plot No. ST-9 North Karachi to allottee, was typed by the Steno of the Administrative Officer and he also confirmed that Exh. P/2 bore the signature of Azhar Alam, the then Administrative Officer. Syed Akbar Taqi deposed that Ex. P/30 is the letter of acknowledgement of possession issued by the K.D.A's office known as North Karachi Division. It bore his signature and that of Assistant Executive Engineer. According to him, the possession of the suit property measuring 1033.33 square yards was handed over to the respondent under the orders of the then Chief Minister. He also confirmed Ext. P/4 to be the site plan of the said plot. According to him, Assistant Executive Engineer was authorised to hand over site plan to the concerned party under his signature. He deposed that Ext. P/15 was a lay out plan approved by the competent authority and the plot in dispute is marked in the said exhibit. Under the said plan, the suit plot was bifurcated into two portions, renumbered as ST-9/1 and ST-9/2 and the respondent was delivered possession of ST-9/1. He also disclosed that in August 1990 he was called by the Executive Engineer, North Karachi Division to search out the old record of the plots, possession whereof was delivered to allottees. He prepared a list, which was produced by him as Ext. P/16, already referred to hereinabove. In cross-examination to the learned counsel for the applicant he stated that after issuance of the allotment, it is the function of the Engineering Department to give physical possession of the plot and to issue acknowledgment orders on the basis of allotment orders. Nizamuddin Shaikh, the officer of KDA Branch of UBL confirmed that Ext. P/5 is the receipt of payment of 50% of the occupancy value of the suit plot. It bore his signature. He confirmed that the above amount was received by the bank under receipt No. 146/42 dated 23.8.1978. He also deposed that the amount was accepted on the basis of letter from the officer concerned of KDA. He explained that the payment in respect of the commercial plots was not being received through challan but used to be accepted only on the basis of letter. 6. The above evidence produced by the respondent confirms that the allotment order of the aforesaid plot No. ST-9/1 was issued by the applicant's office. It was the practice that the number of the plot was not being indicated in the allotment order at the time of its issuance, but a separate endorsement used to be made of the plot number as well as the fact of delivery of the possession and the acknowledgement of the delivery of the possession to the allottee, at the time when the possession used to be handed over to the allottee. It is also proved that the 50% occupancy value of the aforesaid plot was made by the respondent to the applicant. It is also established on the record that the allotments of the plots in the North Karachi were made in the year 1964 and the list of the allottees was prepared by Syed Akbar Taqi on the basis of the record available. The correctness of the list produced by the said witness as Ext. P/16, was not disputed by the applicant. The said list shows the allotment of 145 plots to various persons whose names are mentioned therein, together with the respective numbers of allotment and the plots allotted to them. As already noted above, the name of the respondent is mentioned at S. No. 38. In view of the above evidence coming form the employees of the applicant, on the basis of the record maintained by the applicant conclusively establish the allotment of the plot in dispute to the respondent and particularly issuance of the allotment order Ext. P/2 together with plan and delivery of possession, there is no scope to doubt the authenticity and validity thereof. It may further be pointed out that in the cross-examination of the witnesses examined by the respondent, no suggestion was made contraiy to the evidence deposed to by the witnesses with regard to issuance of the allotment order, endorsement made thereon regarding the delivery of possession or receipt of the 50% of the occupancy value by the KDA through bank. However applicant examined Iqbal Ahmad Qureshi Additional Director Commercial, KDA Karachi who deposed that he had gone through the contents of the plaint as well as the documents filed by the respondent with the plaint carefully. He had also gone through the comments of the Department in respect of the plot in dispute. He stated that the planning in respect of the suit plot was carried out in the year 1973 and he produced lay out plan of different sectors of North Karachi. This witness of the applicant when confronted with Ext. P/2, the allotment order, admitted that the said allotment order was issued from the office of the Rehabilitation Commissioner. He further stated that the proforma of the Rehabilitation Department might have been used by KDA staff and admitted that it was signed by KDA officer. He also admitted that the above document shows that possession of the. half of Plot No. ST-9 was delivered to the allottee. He further stated that the number of the plot is not shown in the allotment order. He however explained that it was a practice in those days that they used to allot the land subject to availability of the plot. According to him, the record of the suit plot is not available in their office but they came to know about the acknowledgment of possession and site plan when the suit was filed by the respondent. The said witness of the applicant, as is evident from the evidence, has strengthened the case of the respondent with regard to allotment of the said plot and has not in any way rebutted the case as projected by the respondent. What is important is the fact that the applicant even in its written statement has admitted that the plot in dispute was allotted, the possession thereof was delivered to the respondent and the fifty per cent of occupancy value thereof was paid by the applicant. In view of the above the contention raised by the learned counsel for the applicant with regard to the validity of the allotment to the respondent is without any substance. 7. With regard to the submission of the learned counsel for the applicant that Courts below have not considered the documents, produced by its witness, suffice to say that the first document relates to the replanning carried out in the year 1973 and the other document which is drawing of the part plan of the area, was prepared on 19.10.1987 and as such they are not relevant in so far as the question of the allotment of the plot in the year 1964 is concerned. The submission of the learned counsel in this regard is therefore over-ruled. 8. Learned counsel for the applicant contended that though findings of the Court below are concurrent but they are not immune from interference. He relied on 1989 SCMR 34 (Sheikh Muhammad v. Hashmat Sultana) and PLD 1989 Lahore 440 (Wall Mohd v. Mohd. Ebrahim & Ors.). In the first case their lordships have observed that every finding of fact is not immune from interference in the revisional jurisdiction. Referring to the concept of jurisdiction and illegality in the context of the observations made in the case of Kanwal Nairn v. Fateh Khan and others (PLD 1983 SC 53), it is observed that it would cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice results therefrom. Their lordships found that the two Courts below while deciding controversial question of fact cannot be said to have acted with jurisdiction, because evidence had been misread at more places than one, conclusion drawn were against the pleadings and perverse. In the second case a learned Judge had interfered in the findings of fact in exercise of the revisional jurisdiction having found that they were arrived at without considering the material evidence. In the present case, the learned counsel for the applicant failed to point out any perversity in the findings of the Courts below. From the resume of the pleadings and the evidence detailed herein above, it is evident that no exception can be taken to the concurrent findings, arrived at by the Courts below on assessment thereof. However, grievance with regard to Exts. D/l and D/2, may be adverted to Ext. D/l is the blue print of the drawing prepared on 28.12.1973 in respect of three sectors of North Karachi, including Sector 15-A/l and Ext. D/2 is part plan of the said drawing. The said documents produced by the witness of the applicant, do not have any bearing on the allotment made in favour of the respondent, which was made, much before preparation of the aforesaid two documents, but possession was delivered subsequently. The case of Sahib Khan u. Muhammad Panah (PLD 1994 SC 162) also does not advance the case of the learned counsel for the applicant as in the said case it was observed by the Supreme Court that if the material document or material evidence is not considered, the High Court could interfere in revision. Material evidence or material documents, mean such piece of evidence or documents, which would affect the findings returned by the Court or in other words the findings of the courts would have been different if the documents that have not been considered, had been looked into by the Court. The learned counsel for applicant could not point out as to in what manner the decision of the courts would have been different if the said two documents had been considered. For considering the effect of the aforesaid two documents and so also submission of the learned counsel that the North Karachi having been surveyed in the year 1973, the question of allotment of land in the year 1964 was out of question, reference is to be made to the relevant facts of the case and the evidence in some details. It may however be pointed out that neither such plea was taken in the written statement, nor there is any evidence to establish that North Karachi Township was planned first in the year 1973 or that no planning was carried out earlier, though in view of the peculiar facts and circumstances of the case, the said plea is hardly relevant. The fact that the allotment order was issued to the respondent is not disputed. The said allotment order did not mention plot number. The allotment order was issued when the respondent was up rooted from Jacob Lines. Additional Director Commercial of KDA so also the officers of KDA examined by the respondent have established that during the period when the said allotment order was issued, it was the prevalent practice that the plot number used to be inserted in allotment order at the time of delivery of possession of the plot and not at the time of issuance of allotment order. This is what, had happened in the instant case. It is also admitted fact that on 15.3.1977 possession of half portion of Plot No. ST-9 was delivered to the respondent, assigning plot No. ST-9/1 to the said portion. Such endorsement was admittedly made on Ext. P/2, the allotment order itself. Ext. P/3 is acknowledgment of delivery of possession of the said plot, wherein the then Executive Engineer of the applicant has certified the delivery of possession of the said plot to the respondent. The said documents are not disputed. On the contrary have been admitted by the applicant and have been proved by the officials of the applicant who were examined by the respondent in support of his case and the Additional Director KDA examined by the applicant did not rebut the evidence to the above effect or documents produced. He in fact did not assail the case set up by the respondent in any manner. The said documents Ext. D/l and D/2 were produced rather unceremoniously without stating the purpose thereof and out of the context of the deposition of the said witness. It is now being submitted that these exhibits were produced to show that the North Karachi was surveyed in 1973, but looking at the practice then prevailing which is proved by official witnesses, the point of time of survey is irrelevant in so far as issuance of allotment order is concerned. Such order was issued when the inhabitants of Jacob Lines were being uprooted and dislocated from the said area and they were handed over the allotment orders as an assurance of their rehabilitation. The plot number was inserted in the allotment order as detailed herein above only at the time of delivery of possession in the year 1977, after the planning of the North Karachi Township. Ext. D/l does not show sub-division of Plot No. St-9, but it is because of the fact that it was prepared in 1973. Ext. D/2 is part plan showing subdivision of plot No. ST-9 into six plots in they year 1987. The said documents do not advance the case of the applicant in any manner and cannot be said to be material documents. They do not affect the findings of the Courts below. Ext. P/3 is the site plan of ST-9/1 allotted to the respondent. It discloses the dimentions of the plot in question. The witness examined by the applicant did not rebut the authenticity or validity of the said document in his evidence. The learned Judges of both the Courts below considered the evidence and the relevant documents produced by the respondent and on assessment thereof decreed the suit. As Ext. D/l and D/2 were not material documents and as observed above do not have any bearing on the findings given by the Courts below. If certain document is not considered by the courts below, such omission does not ipso facto justify interference in the concurrent findings in exercise of revisional jurisdiction unless it is demonstrated that the documents or evidence kept out of consideration is material or in other words would have led the Court to contrary view or affected the decision on any material particulars of the case. It may be pointed out that these documents being copies were not admissible in evidence. These documents were neither mentioned in the written statement nor disclosed at any stage prior to their production in evidence. These two exhibits were therefore received in evidence subject to objection. There was no occasion for the learned Judges of the lower courts to consider the objection, as probably no stress was laid on these documents at the stage of arguments either in the suit or the appeal. For the above reasons and as also the said documents being in admissible, the submission of the learned counsel for the applicant fails. 10. The learned counsel for the applicant stated that the respondent having been shifted from Jacob Lines area was entitled to allotment of alternate plot but not the plot in question. Learned counsel did not elaborate argument any further to show as to for what reason the respondent was not entitled to the plot in question and what plot or land he was entitled to. The submission being vague, cannot be entertained, once the entitlement of the respondent has been conceded to. Reverting, in the above back ground, to the submission of the learned counsel to the effect that under the Regulations of 1965 and Rules of 1971, referred to hereinabove, commercial plot can be disposed of only in open auction, suffice to say that the plot was allotted to the respondent much before the coming into force of the aforesaid Regulations and the Rules and as such they cannot be applied retrospectively. Even other wise, it is to be noted that such plea was not taken in the written statement and therefor, the applicant cannot be permitted to raise such plea for the first at the time of hearing of this revision application and that two after acceptance of the allotment order to be valid and having acted upon it. Secondly the allotment to the respondent was admittedly made in particular circumstances, in that it was made in lieu of the plot he was evicted from. Thirdly it is not the case of the applicant that the allotment in question was obtained fraudulently or illegally or in collusion with applicant's staff. Fourthly it is a case of past and closed transaction. The allotment was made in 1964 and possession was delivered in 1977 and it was more than thirteen years thereafter that the applicant, during the substance of the allotment order, subdivided the plot and published programme of auction of the said plots, which act on the face of it is illegal and unwarranted. Fifthly it may be noted that the case of the respondent is not solitary one. Several other allotments were issued in respect of the commercial plots as disclosed in Ext. 16. It is not shown that any allotment was cancelled on that count. The applicant has examined allottee of the plot No. ST/7 which is located near the plot in dispute. The said plot also has not been cancelled. Under the circumstances action in respect of the plot allotted to the respondent is discriminatory. The applicant under the fundamental law of this Countiy is entitled to equal treatment, and the act of the respondent being discriminatory cannot be allowed to prevail. 11. The learned counsel for the applicant urged that the allotment Border and possession do not confer any right on the respondent. The respondent, therefore, is not entitled to any protection under the law. He did not refer to any provisions or rule of law in support of his submission. He, however, relied on Abdur Razzak's case (supra) wherein a learned Judge of this Court has observed that under Rule 10 of the KDA (Disposal of Land) Rules 1971, the acceptance made in public auction could not be final unless, it is approved by the Governing Body of KDA. The above authority has no application to the facts of this case. The learned counsel for the respondent relied on Noor Muhammad and another u. KDA and 2 others (PLD 1975 Kar. 373), Kaleemuddin Ansari vs. Director Excise and Taxation (PLD 1971 SC 114) and Abdul Bahi v. Muhammad Akhund Din (PLD 1964 SC 107). The ratio of the rule laid down in the said authorities, that can be applied to the peculiar circumstances of the case, is that the allotment made in favour of the respondent is not a licence or sublicence, but it has created real interest in the land allotted to him. The submission of the learned counsel is over ruled accordingly. Above are the reasons for the short order dated 17.3.1995 whereby the revision application was dismissed with costs. (B.T.) Revision application dismissed.

PLJ 1996 Karachi 740 PLJ 1996 Karachi 740 Present: G.H. MALIK, J. GHULAM JILANI etc.-Plaintiffs versus ABDUL KADIR etc.-Defendants C.M.A No. 338/90, dismissed on 12.1.1993. (i) Civil Procedure Code, 1908-- —-O.XX R 13-Suit for administration-Scope of-Question of title/owner­ ship may be decided or not-In an administration suit, a complete inquiiy is to be made and this necessarily implies determination of title to immovable property and court is bound to decide question as to ownership of such property which is subject-matter of an administration suit. [P. 755] A (ii) Civil Procedure Code, 1908-- —-O.XX R. 13-Suit for administration-Scope of-Question of title or ownership may be decided or not-Main purpose of a suit for administration is to have the estate of deceased administered by court, this court can for the purpose of achieving the object of such a suit decide question of title to any property, and power of court to do so extends to determining the existence or validity of any alienation of property not only by other persons after death of deceased but also by deceased during his life time. [P. 755] B Mr. Noor Muhammad, Advocate, for Plaintiff. Mr. Noorul Hassan and Raja M. Irshad, Advocates, for Defendant No. 1. Mr. Waqar Lodhi, Advocate, for Defendant No. 10. order This is an application filed by defendant No. 1 praying that the property mentioned at Serial No. 6 in annexure "A" to the plaint be deleted; and has been made in the following circumstances. Muhammad Ghulam Qadir (the deceased) died intestate on the 6th October, 1970, leaving behind plaintiffs Nos. 1 and 3 to 5 (sons and daughters), plaintiff No. 2 (widow), defendants Nos. 1 to 10 and 13 (sons and daughters) as well as two sons, Inayat Kadir and Abdullah Kadir and Mst. Shahzadi Begum, a widow, as his heirs. Inayat, Abdullah and Mst. Shahzadi Begum died subsequently. The heirs of Inayat are plaintiffs Nos. 6, 7 and 8 and defendants Nos. 15 and 16. The heirs of Abdullah are plaintiffs Nos. 9, 10 and 11 and defendants Nos. 11,12 and 14. The original plaintiff No. 4 and defendant No. 13 died during the pendency of the suit and their respective legal representatives have since been impleaded as parties to the suit. Thus, all the parties to the suit, except defendants Nos. 17 and 18 against whom no relief has been claimed, are the heirs of the deceased. The deceased is alleged to have left certain movable properties as well as immovable properties specified in Schedule "A" to the plaint. It is alleged by the plaintiffs that major portion of those properties are in the possession of the defendants who have been exclusively managing them and receiving profits thereof and have not given the plaintiffs the true and full accounts of such profits. The plaintiffs have, therefore, filed this suit for administration of the estate of the deceased. The defendant No. 1 has alleged, in his written statement, that the property mentioned at Serial No. 6 in the Schedule to the plaint, namely, cotton ginning factoiy and cotton ginning press with land, etc., situated at Hyderabad (hereinafter referred to as "the Hyderabad property"), is "solely owned by and has been in exclusive possession of defendant No. 1" and that it is claimed by him "in his own right as the owner thereof. All the remaining defendants, except defendants Nos. 7 and 8, have filed written statements supporting the plaintiffs. The defendant No. 7 supports the defendant No. 1 while the defendant No. 8 has not filed a written statement. The plaintiffs made an application in the suit to restrain the defendant No. 1 from disposing of the Hyderabad property. That application was disposed of on the 3rd February, 1988, when it was observed that the controversy regarding that property can be decided after evidence is recorded and it was ordered, with the consent of the parties, that the property be sold and the proceeds deposited in Court "subject to the decision of the suit." Consent issues filed by the parties were adopted on the 18th March, 1986, and one of the issues for trial is whether the Hyderabad property is a part of the estate of the deceased. On the 16th October, 1989, early hearing of the suit was ordered and the plaintiffs were required to file affidavit in lieu of examination in chief; but, before the evidence could be recorded, the defendant No. 1 filed the present application on the 18th February, 1990. The case then came up in Court on the 28th February, 1990, for hearing of the application as well as evidence when, in view of the fact that there was no dispute among the parties except with regard to the Hyderabad property and the property mentioned at item (a) of para 9 of the written statement of defendant No. 1, preliminary decree for partition of those properties was passed with the proviso that, before taking any action with regard to the Hyderabad property, the present application (C.M.A. 338/90) will be decided first; and that:- "In case it is decided in favour of defendant No. 1, then the property will be excluded from preliminary decree. Otherwise evidence will be led to determine as to whether the property belonged to the deceased propositus till the time of his death or it was gifted to defendant No. 1." It is clear from the above order that the question whether the hyderabad property forms part of the estate of the deceased is not to be decided on this application but will be decided on evidence at the trial if the application fails; and it is for this reason that neither of the learned counsel addressed any argument on that question and confined their arguments to the maintainability of the suit with regard to the Hyderabad property. The scope of the present application is, therefore, necessarily confined to the question of the maintainability of the suit with regard to the Hyderabad property in the light of the pleadings of the parties. The prayer in the present application is that the Hyderabad property be "deleted/struck off from the list of Assets and properties/estate of the deceased (late Mr. M.G. Kadir) as the same cannot be the subject matter of the present suit." Mr. Noorul Hassan, the learned counsel for the defendant No. 1, submitted, firstly, that on the language of Order 20, Rule 13, C.P.C., a suit for administration lies only in respect of properties about which there is no dispute. There is, however, no warrant for the proposition in the language of rule 13 which does not by itself provide for filing of a suit for administration. It merely recognises such a suit and provides for a kind of decree to be passed therein. It was then contended by the counsel that because the defendant No. 1 claims to be entitled to the Hyderabad property in his own right, that property cannot be the subject matter of the present suit and, further, that validity of an alienation of a property by the deceased cannot be decided in a suit for administration. The question that arises, therefore, is what, in the absence of any statutory provisions in that behalf, is the scope of a suit for administration and what matters may be determined in such a suit? The answer is provided by our Supreme Court in the case of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (PLD 1962 S.C. 291) wherein it was observed:- "In the absence of any specific provision in the procedural law the question as to the matters to be determined and parties to be impleaded in a suit depends on the relief that is o be granted in that suit In a suit for administration the relief to be granted is that the estate of the deceased is to be administered under the decree of Court. This means that the Court will assume the functions of an administrator, it will realise the assets, will discharge the debts and legacies, will take an account of the income of the property and will distribute the assets amongst those entitled to it." and it was held that for the purpose of distributing the estate of the deceased among those entitled to it, the Court has to find out who the persons entitled are and, therefore, it will be proper to join in the suit all those persons who claim to be so entitled. The relief to be granted in a suit is the object or the purpose thereof and if, in order to achieve the object or purpose of a suit for administration, viz. to distribute the estate amongst persons entitled to it, it is necessaiy to find out who those persons are, then, by the same token, it would appear to be necessary to ascertain what the estate to be distributed is. This is also indicated by the form of preliminary decree provided by Form 17 in Appendix D to C.P.C., which requires that "for carrying out the object of the suit" an inquiry be made as to "what immovable property the deceased was seized of or entitled to at the time of his death." What, then, is to be scope of such an inquiry to ascertain what immovable property the deceased was seized of or entitled to at the time of his death? and is the Court debarred from making such an inquiry merely because a defendant asserts simply that he claims a property in his own right? It is true that the scope of a suit for administration is limited and such a suit cannot be converted into a suit for an altogether different purpose such as setting aside alienations by the deceased but, on principle, there appears to be no reason why in a suit for administration properly so called, viz. a suit the main or the relay object of which is to obtain administration of the estate of the deceased, the Court should not determine the question of a party's claim to be entitled to a property in his own right and for that purpose determine the existence or validity of any alleged alienation by the deceased; for ultimately determination of such questions is nothing more than an inquiiy as to what property the deceased was seized of or entitled to at the time of his death. If it were otherwise, any suit, even if its main or real purpose is to have the estate of the deceased administered, would be liable to be defeated merely by the defendant alleging that he is the owner of the property in question; and the result would be multiplicity of litigation Mr. Noorul Hassan, however, contended otherwise and, in support of his contention, cited the cases of Syed Mehdi Hussain Shah v. Mst. Shadoo Bibi (Supra), Chand Narain and another v. Ghasi Ram (AIR 1940 Lahore 241), Mst. Shafi-ul-Nisa v. Mst. Fazal-ul-Nisa (AIR 1950 (East) Punjab 276), Muhammad Sanuar and 2 others v. Abdul Lateef and another (PLD 1978 Lahore 391) and Muhammad Yunus Qureshi and 5 others v. Mrs. Feroz Qureshi and 2 others (1982 CLC 976). In Syed Mehdi Hussain Shah's case the plaintiff had filed a suit for administration alleging that she and the defendant No. 1 were entitled to the estate of the deceased; that the defendant Nos. 2 to 8 who claimed to be heirs of the deceased were not such heirs; and that the will under which the defendant No. 9 claimed was not genuine. The form of the suit was attacked on the ground that an administration suit can only be filed as against parties who are admittedly entitled to a share in the estate of the deceased and not against persons who according to the plaintiff are not entitled to any such share and are only trespassers; and it was held that for distribution of the estate among those entitled to it the Court had to find out who those persons are and therefore it is proper to join in the suit all those persons who claim to be so entitled. It was argued on behalf of defendant that the plaintiff will by an administration suit be getting possession from trespassers but that argument was repelled with the following observation:- "Whilc- an administration suit is not a remedy for getting possession from those who claim the property in their possession in their own right and adversely to the deceased there does not appear to be any valid objection to their dispossession if they claim only as heirs or under a will from the deceased and their claim is negatived." Mr. Noorul Hassan laid particular emphasis on that observation to support his contention that an administration suit is not competent where a defendant claims a property in his own right. The observation, however, has to be read in the context of the argument, mentioned above, which was advanced in that case and of another observation made in that case, viz. that if the defendants to a suit be only trespassers and the plaintiff is the person solely entitled there can be no administration suit by such a plaintiff against such defendants. Thus read, the effect of the observation is that there can be no administration suit for recovery of a property from a person who claims it in his own right but there appears to be no justification for reading more than that into it and to say that it lays down any rule that in a suit which, on the face of it, is a proper suit for administration the Court must stay its hands a soon as a defendant claims the property in his own right. The suits referred to in the case are obviously not the suits the main or the real purpose of which is to obtain administration of the estate of the deceased but, in the garb of suits for administration, suits to obtain possession from trespassers or persons in wrongful occupation. In any event, the plaintiffs I the present suit are not claiming possession from defendant No. 1 alone. The observation quoted above is, therefore, not apposite. In AIR 1940 Lahore 179, the suit was between rival claimants to the estate of a deceased and each one claimed to be the sole heir of the deceased. The main purpose of the suit was, thus, to determine who was the heir of the deceased; and it was held that the suit was not an administration suit. The question for determination in AIR 1943 Lahore 241 was whether an administration suit was competent in respect of four out of the five properties involved; and it was held that the suit was not competent because the object thereof was to obtain cancellation of the transactions entered into by the deceased. It was observed:- "If the plaint is read as a whole, it is clear that the object of the present plaint is to obtain cancellation of the transactions entered into by means of various deeds by the deceased and his father in respect of houses Nos. 2 to 5. According to the plaint, the gifts and the sale in favour of defendants 5 and 6 have been brought about by the exercise of undue influence on Zaheer Din. The allegation with respect to undue influence is made repeatedly in the plaint. It is stated that as a result of the undue influence, the gifts and sales made by the deceased were not binding on the plaintiffs. In its essence, therefore, the present suit is a suit for having certain alienations made by Zaheer Din declared invalid and ineffectual against the rights of the plaintiffs. So far as the factum of these alienations is concerned, the parties did not join issue." It will be seen that the character of the suit in that case was decided in the light of the averments in the plaint. Applying the same criterion to the present case, it is clear that the object is to obtain administration of the estate of the deceased and not to question any alienation by the deceased. There is not even a mention, in the plaint, of any alienation by the deceased let alone the question of validity of any alienation; and the nature of the suit is not affected by the rather bare averments in the written statement of defendant No. 1 that he is the owner of the Hyderabad property. The case is, therefore, distinguishable, and is of no assistance to defendant No. 1. Mr. Noorul Hassan referred to a passage occurring at page 243 of the report of the case, which is as follows:- "After a review of all the authorities cited the Bar. I am of the opinion that it was open to the Court to determine in an administration suit whether certain alienations were or were not in fact made by the deceased. It is, however, not open to the Court in an administration suit to determine the validity of any alienation made by him." The authorities reviewed are those reported in AIR 1940 Lahore 179, 61 Calcutta 711, 45 Bom. 1053, AIR 1936 Lahore 365, 48 Bombay 331 and 33 Calcutta 180. Out of those authorities, the question whether validity of alienation of a property by a deceased can be challenged in a suit for administration did not admittedly, arise in AIR 1940 Lahore 179, 45 Bom. 1053 and 48 Bom. 331; and, with all due respect to the learned Judge, the question did not really arise in any of the other authorities reviewed. As for the case reported in AIR 1936 Lahore 365 the facts were that Mst. Rehamt Sultan died on 6th April, 1924. An administration suit was instituted by her heirs against her husband Muhammad Din. Muhammad Din claimed one of the houses as his property. On the other hand, the plaintiffs contended that Muhammad Din was liable to pay Rs. 700 as dower to the heirs of Mst. Rehamt Sultan. Muhammad Din did not admit the amount of dower. It was held that a disputed debt cannot be deemed to be an asset which has come in the hands of any person representing the estate and the finding of the District Judge that in an administration suit it is not open to the Court to direct the debtor to pay the debt due to the estate to the administrator or to the receiver was upheld; and, as to the house it was held that in a case like that the party in possession of the assets of the deceased can be directed to hand the same over to the administrator. In other words, the question whether the house formed part of the estate of the deceased could be, and was, determined in that suit. It may be noted that, with regard to the house, the plaintiffs' case was that house was purchased by Muhammad Din with the money of Mst. Rehmat Sultan. In 61 Calcutta 711, it was averred in the plaint that the plaintiffs are the real heirs of their husband and they are entitled to recover the properties left by him; that the plaintiff No. 1 or at any rate one amongst them is entitled to succeed to the impartible estate; and that the defendant had no right or title to the properties left by the plaintiffs' husband but has obtained wrongful possession of them by exercising fraud, misrepresentation and undue influence; and the reliefs claimed were declaration of title and recovery of possession from the defendant. It was held that the suit against the defendant was for wrongful withholding of possession of the properties and was not in the nature of an administration suit at all. No question of determination of validity of alienation in an administration suit therefore arose in that case. In 33 Calcutta 180 = 32 Indian Appeals 196, the plaintiff brought a suit for administration of the estate of her deceased husband. After the death of her husband she was induced to execute certain instruments by which she surrendered her rights under the will and she alleged in the suit that those instruments were obtained by fraud. The defendant disputed the jurisdiction of the High Court of Calcutta hut the high Court and the Appellate Bench sustained the jurisdiction, set aside the series of deed sand decrees impugned, and granted administration. On appeal, their Lordships of the Privy Council held:- "On the question of jurisdiction their Lordships consider the decision right. The primary object of the suit was the administration of the estate of a deceased person resident within the jurisdiction, the principal executor being also resident there and the actual administration going on there. The High Court of Calcutta, in its Ordinary Jurisdiction, had a right to order administration of this estate, and, as ancillary to such an order to set aside deeds obtained by the fraud of the executor." (underlining is mine). In AIR 1950 (East) Punjab 276, the plaintiff brought a suit for administration alleging that deceased was, before his death, under the influence of the defendants; that he was suffering from "Maraz-ul-Muat" and that all documents executed by him, including a deed of gift of the property in favour of the defendant, were invalid; and that the gift was not valid because it was made without the consent of the plaintiff. She pleaded that because of the invalidity of the deed of gift, she was entitled to have the estate of the deceased administered. Relying on the decision in AIR 1943 Lahore 241, the learned Judges held:- " ....... If the main object of a suit is to administer the estate, and if the Court, in the suit, has to decide as to the existence or otherwise of an alienation, an administration suit will lie, but where the main object of the suit is to have an alienation, alleged to be made by the deceased, set aside or to obtain possession of property illegally withheld by one of the heirs, an administration suit is not a proper remedy." The passage quoted above shows quite clearly that the maintainability or otherwise of a suit filed for administration depends on the main object of the suit. In the present case, it was not even argued by Mr. Noorul Hassan that the main object of the suit is to question the validity of any gift. In PLD 1978 Lahore 391, the 'pith and substance' of the plaint was that since the donor was a limited owner and had no authority to make the gift, the gift was invalid. It was, therefore, held that the suit was not maintainable. In 1982 CLC 976, there was a dispute about one of the properties which the defendant claimed had been gifted to her by the deceased and which had subsequently been sold by her. It was held:- "The scope of Administration suit is limited. The question of title to a property claimed by any heir in his own independent right cannot be decided in these proceedings. The object of the suit is to determine the estate of the deceased at the time of his death. Reference can be made to PLD 1962 S.C. 291, PLD 1978 Lahore 391 and two unreported orders passed by Zafar Hussain Mirza, J. in Suit No. 274/75." and the disputed property was excluded from the preliminary decree passed in respect of the other, undisputed, properties. The two reported judgments mentioned above have already been discussed hereinabove. As for the unreported order in Suit No. 274/75, the plaintiff alleged therein that the deceased had left behind several properties. As to one of them, the defendant No. 1 claimed that it belonged exclusively to him, and, as to the other, the plaintiffs case was that it was owned by the deceased benami in the name of his wife who purportedly gifted it to defendant No. 7 when the deceased was seriously ill and in unconscious condition. The defendants sought to have these properties excluded from the suit. Before the issues were framed, the plaintiff made an application under Order 20, Rule 13, C.P.C., praying that preliminary decree be passed ordering the administration of the estate of the deceased under the decree of Court with specified steps towards ascertainment, preservation and final distribution thereof among the parties in accordance with their shares. Zafar Hussain Mirza, J. held, with regard to the property which the defendant No. 1 claimed to belong to him exclusively, that it was premature to pass a preliminary decree because the question whether defendant No. 1 was liable to account for partnership effects and income had still to be decided. The application was, therefore, dismissed and the office was directed to fix the suit for settlement of issues. It will, thus, be seen that the unreported order is not an authority for the proposition that question of title to property claimed by a defendant in his own right cannot be determined in a suit for administration. As for the other property i.e. the one which was alleged by the plaintiff to have been held by the deceased benami in the name of defendant No. 7, the learned Judge held that it was beyond the scope of suit for administration and, in that connection, referred to the decision in AIR 1950 (East) Punjab 276. This, however, is contrary to AIR 1936 Lahore (supra) where similar dispute with regard to a house was entertained in an administration suit. Mr. Noor Muhammad relied, apart from PLD 1962 S.C. 291, on the cases of Masireddi Suryanarayana v. Akula Anasuyamma (AIR 1963 Andhra Pradesh 298), Muhammad Bibi v. Abdul Ghani (PLD 1975 Karachi 979) and Mst. Ayesha Bai and another v. Mst. Shahida and 4 others (PLD 1981 Karachi 177). In AIR 1963 Andhra Pradesh 298, the plaintiff, in a suit for administration, alleged, inter alia, that the family settlement in relation to some of the properties of the deceased was not valid and that those properties which were in the possession of the defendant No. 4 formed part of the estate of the deceased and were liable to be administered; and it was held:- "3. Order XX, rule 13, C.P.C. deals with administration suit. It provides that the Court shall first pass a preliminary decree directing accounts and inquires. In Appendix "D", Form No. 17 prescribes the form of the preliminary decree in administration suit. Paragraph 10 of the Form of decree is the relevant paragraph. It provides that an enquiry as to what immovable property the deceased was seized of or entitled to at the time of his death should be held. In Muhammadally Adamji v. Abdul Hussain (ILR 48 Bom. 331; AIR 1924 Bom. 313), reference is made to seton on Decrees, Vol. II, page 1412 (7th Edition) as to the form of decree in an administration suit. The learned judge pointed out that among the inquiries contemplated in the course of the administration, the inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death is included. It is therefore clear to my mind that in a suit for administration, the Court has to necessarily ascertain what properties belonged to the deceased at the time of his death. As the 4th defendant claims "title to items 5 and 7(1) of Schedule A and item 3 of Schedule B, the Court is entitled to ascertain whether the 4th defendant was in lawful possession of those properties." In so holding, the learned Judge relied on the decision of the Privy Council in 33 Calcutta 180 and in AIR 1928 Madras 760 in preference to the decision in AIR 1950 (East) Punjab 276 and other decisions and held:- "5. A contrary view was taken in Shiuaparasad v. Prayagkumari, Debee AIR 1935 Cal. 39 An Kyan Sin v. Yeo Ah Gwan AIR 1937 Rang. 497 and Shafi-ul-Nisa v. Fazakul Nisa AIR 1950 E Pb. 276. Those decisions were sought to be distinguished by the Judges of the Nagpur High Court on ground which do not appeal to me. I am inclined to follow the decision of the Privy Council and the decision of the Single Judges of the Madras High Court in preference to the decisions taking a contrary view. I hold that as an ancillary to the administration of the estate, the Court is entitled to decide whether the family arrangement pleaded by the 4th defendant is valid or not." In PLD 1975 Karachi 979, the contention on behalf of the defendants that it is not open to this Court in an administration suit to question the validity of the alienations made by the deceased during his life time was rejected and it was observed that the Court has jurisdiction to decide whether a particular property belonged to the deceased or not and it would be impossible for the Court to administer the estate without deciding what that estate is. In PLD 1981 Karachi 177, the plaintiffs filed a suit for administration alleging that they and the defendant No. 1 where the only heirs of the deceased and that, after the death of the deceased, the defendants had taken over control, possession and management of all the properties and business of the deceased. The defendants Nos. 1 to 4 pleaded that the deceased did not leave any property; that the property claimed by the defendant No. 5 belonged to him; and that the other properties belonged to one Muhammad Umer, a brother of the deceased, and not to the deceased. The defendant No. 5, who had been joined as a party at his own request, alleged that one of the properties belonged to him and he had acquired the tenancy rights and obtained possession thereof from a third party prior to the death of the deceased. As for the properties alleged to be belonging to Muhammad Umer it was held:- "It is also admitted in the written statements that Muhammad Umer was the real brother of deceased Haji Muhammad Ibrahim. The plea is not taken in the written statement that Muhammad Umer left behind any other heirs and, therefore, deceased Haji Muhammad Ibrahim as a brother, in the absence of any wife and children surviving Muhammad Umer could have acquired the tenancy right or at least a share in both the properties In the present administration suit it can be decided whether the deceased had any tenancy rights and/or was the owner of articles in such premises. The defendants have not taken any clear position as to show they or any one of them acquired the properties left by Muhammad Umer. It may be noted that in the present case also the defendant No. 1 has not taken any position in the written statement as to how be acquired the ownership of the Hyderabad property. As for the property claimed by defendant No. 5 in that case, it was observed that the plaintiffs had not shown whether that property at any time vested in the deceased and that the defendant No. 5 on the other hand had filed documents to show thatprima facie he was the owner thereof. The defendant No. 5 was neither the heir of the deceased nor claimed to have acquired the property through will or otherwise from the deceased or through Muhammad Umer. In these circumstances, it was held at page 183,— "If in the plaint the only property shown to have been left by the deceased had been property (claimed by defendant No. 5,) the present suit would not have come within the compass of Order XX, rule 13, C.P.C. However, as I have already held that on account of the pleadings in this suit in relation to the other two parties this suit as an administration suit is maintainable, the issue whether property (claimed by defendant No. 5) belonged to the deceased at the time of his death can also be decided in the present administration suit. I am of this view on account of two reasons. Firstly defendant No. 5 himself applied to become a defendant in this suit and on his own application the Court joined him as defendant No. 5. Secondly, all the parties who are interested in this property are before the Court and if at this stage it is decided that the question of ownership of this property ought not to be decided in these proceedings, the parties i.e. the plaintiff and defendant No. 5, will get involved in another litigation. In view of the special circumstances and facts of this case and additionally to avoid multiplicity of proceedings, this question can also be decided in this suit. I may observe here that facts differ from case to case and the decision whether an administration suit is maintainable or not largely depends on the pleadings in a particular case." (underlining is mine). In that case (PLD 1981 Karachi 177), it was contended that if the property which is claimed by the plaintiff in an administration suit to have been left by the deceased was in possession of the defendants including heirs of the deceased and the defendants claimed the property to be their own, no administration suit was competent. The contention was rejected, firstly, because, according to the plaint, the deceased was in possession of the properties at the time of his death and, secondly, because a link between the properties and the deceased had been established and in the face of those pleadings the contention that, because the defendant claimed to be in possession of the properties alleged to have been left by the deceased, the suit was not maintainable, was not accepted. The counsel for the defendant -' in that case had relied on PLD 1962 S.C. 291. It was, in that connection, observed, at page 182,— "As regard the other passage at page 294 of the Supreme Court judgment on which reliance has been placed by learned counsel for the defendants, it may be observed that the plaintiffs in this case are not claiming possession from the defendants Nos. 2 to 5 only. According to the plaint the three properties left by the deceased in which the two plaintiffs and defendant No. 1 as the only heir have their respective shares, and after the death of the deceased, defendant No. 1, the daughter of the deceased, in collaboration with other defendants, has taken over possession of the same." The view that it is open to the Court, in the course of administration of the estate of the deceased to decide whether any assets belonged to the deceased or not, is also supported by the judgments in Motibhai Shankarbhai Patel v. Nathabhai Narayanbhai Patel (45 Bomb. 1053) and Mahmocdally Adamji Masala Valla and others v. Abdul Hussein Adamji Masalawalla and others (ILR 1948 Bomb. 331). In 45 Bomb. 1053, the defendants objected to the jurisdiction of the Court to deal with any properties in his possession which he claimed did not belong to the estate of the deceased. It was held:- \There is no reason why the Court should not decide as between the parties to the suit whether those assets belonged to the estate of the deceased or not. If that is not done, the only result Would be that another suit would have to be filed in which the contesting parties would be the same and the issues would be the same which have already been raised in this suit." In 48 Bomb. 331, an objection was taken in a suit for administration that the Court had no jurisdiction to determine the question of title as the property was outside the ordinary jurisdiction of the High Court and no leave had been obtained. It was held that High Court can, in an administration suit, determine the question whether certain immovable properties situated outside the territorial limits of its jurisdiction belonged to the deceased at the time of his death, even though leave under clause 12 of the Letters Patent was not obtained. The case of the defendant No. 1 in that case was that the property in dispute was given over to him by his father by way of gift and that the property did not form part of the estate of the deceased. Sir Lallubhai Shah, Acting C. J., held:- "On a consideration of the arguments on both sides I am satisfied that the Court has jurisdiction to determine in this suit whether the property belonged to the deceased Adamji or not. It appears from the form of the decree in an administration suit given in Seton on Decrees, Vol. II, page 1412 (7th Edition) and also in the Schedule I, Appendix, D, of the Code of Civil Procedure that among the inquiries contemplated in the course of the administration the inquiry as to what immovable property the deceased was seized of or entitled to at the time of his death is included. The question to my mind is not now whether the suit in respect of this property so far as it relates to this property is a suit for land or not, but whether such an inquiry is appropriate in an administration suit. It must be taken now that an administration suit as such is not a suit for land within the meaning of clause 12. This question is really an incident of the administration suit." His Lordship then cited the observation of the Privy Council in 33 Calcutta 180 to the effect that the High Court had a right to order administration of the estate, and, as ancillary to such an order, to set aside deeds obtained by the fraud of the executor. Crump, J. concurred with the decision of Sir Lallubhai Shah, Acting C.J. and observed:- "It is impossible for the Court to administer the estate without deciding what the estate is, and until the question of title has been settled, the Court does not know as to what property its orders are to operate." A question similar to the one in the present case arose in the case of • Nazarali Kazamali and others v. Fazlan Bibi and others (AIR 1975 Gujrat' 81). The plaintiff in that case had filed a suit for administration of the estate of her deceased father. The defendants in their written statements took the plea that certain properties had been gifted by the deceased defendant No. 1; and it was contended, on their behalf, that the question of title to those properties was not within the purview of the suit. The, contention was not accepted and it was held:- "Now, it is true that these contentions are raised in the written statement. But, the pleas in the written statement cannot be allowed to decide the nature of the suit. The orders that may have to be passed in the final decision of the suit on merits cannot also be decisive in the matter. If it were so, in eveiy administration suit, a defendant would raise a plea covering a question of title or some other complicated question and can urge that the suit, as framed, is not competent. This would defeat the very purpose of an administration suit and would lead to avoidable multiplicity of judicial proceedings between the same parties, a situation ~ which cannot be allowed to arise in such a suit, the main purpose of the suit being not to determine as to who is the rightful heir of the deceased, but to administer the estate of the deceased, if, for the purpose, the questions of title have incidentiy to be gone into, that would certainly be within the purview of an administration action. The question as to title of the property can be appropriately considered in an administration suit. That would not alter the nature and character of the suit. This is also indicated by the procedure prescribed in Order 20, Rule 13 of the Code of Civil Procedure and by Forms of Decrees Nos. 17 and 20 in Appendix-D of the First Schedule of the Code which are illustrative forms though not exhaustive." The learned Judges of Gujrat High Court discussed the decisions in ILR 45 Bom. 1053, ILR 48 Bom. 331 and 32 Ind. Appeals 193 = 33 Cal. 180 and concluded, at page 87:- ' ' "It thus appears to us to be clear that in an administration suit, deeds obtained by fraud of the executor can be investigated as ancillary to an order of administration of the estate. The same is true of the deeds obtained by any of .the heirs of the deceased and also from the deceased. The question will have necessarily to be gone into in an administration suit as it would be impossible for the Court to administer the estate without deciding what the estate is. For that basic purpose, the question of title has necessarily to be gone into as the Court does not otherwise know on what property its orders are to operate. It is implicit in a suit for administration of the estate of a deceased that an inquiry be directed as to the title to the properties which might be raised by the defendants. An administration suit cannot be permitted to be defeated by the pleas taken by the defendants in the written statement and merely because a question of title is raised, the plaintiff should not be driven ~ ! to another suit. This will lead to multiplicity of judicial proceedings, which is ordinarily to be avoided. In our opinion, that inquiries contemplated in the course of the administration of an estate include the question as to what property the deceased was seized of or entitled to at the time of his death. In an administration suit, a complete inquiiy is to be made and this necessarily implies determination of \ title to immovable property and the Court is bound to decide questions as to ownership of such property, which is the subject-matter of an administration suit." It was, therefore, held that the suit as framed as an administration suit and that it is within the scope of the administration suit to go into the ancillary question of title to the property. It would, thus, appear, both on principle and on authority, that in a suit for administration, properly so called i.e. a suit the main or the real purpose of which is to have the estate of the deceased administered by the Court, this Court can for the purpose of achieving the object of such a suit, namely, collection and distribution of the estate, and as ancillary to order for administration, decide the question of title to any property; and the power of the Court to do so extends to determining the existence or validity of any alienation of the property not only by other persons after the death of the deceased but also by the deceased during his life time. Mr. Noorul Hassan, it may be observed, conceded that a dispute as to factum of alienation can be inquired into but, relying on the case reported in AIR 1943 Lahore 241 and AIR 1950 (East) Punjab 276, contended that validity of an alienation by the deceased cannot be inquired into in an administration suit. As against the decisions relied upon by Mr. Noorul hassan, it has been held in several cases, discussed above, that question of title to a property can be decided in a suit the main or the real purpose of which is to have the estate of the deceased administered by Court. It is true that while the disputes in AIR 1943 Lahore and AIR 1950 (East) Punjab 276 related to alienations by the deceased, the disputes in the cases decided by Bombay and Andhra High Courts and Privy Counsel pertained to alienations make by other persons after the death of the deceased; but, in the first place, it was expressly held in the Lahore and the East Punjab cases that the suits there were not suits for administration because the main object thereof was to have the alienations set aside; and, secondly, the distinction in the two sets of decisions is without any real difference and does not affect the principle that the Court can, in a proper suit for administration, decide, in order to achieve the objection of such suit and as ancillary to its power to order administration, the question of what property belonged to the estate of the deceased and for that purpose determine the existence or validity of any alienation by the deceased. I have already indicated that the present suit, as framed, is a suit for administration, properly so called. The question of title to the Hyderabad property is, therefore, in the circumstances of the case, within the scope of the suit and the suit, as regards that property, is maintainable. This application is, therefore, liable to be, and is, hereby, dismissed. The question whether or not the Hyderabad property forms part of the estate of the deceased or was gifted to defendant No. 1 will now be decided upon evidence of the parties as directed by order dated the 28th Februaiy, 1990. (K.A.B.) Application dismissed.

PLJ 1996 Karachi 756 PLJ 1996 Karachi 756 Present: M. hussain adil khatri, J. Mst. MUSARAT-Plaintiff versus AIR COMDR. SHAFIQ HYDER and 3 others-Defendants. Suit No. 710 of 1986, dismissed on 6.3.1993. (i) Damages- —Power to award compensation in certain cases-Whether plaintiff could claim compensation when he himself agreed to receive earnest money (Rs. 25,000/-) only in case deal does not go through-Plaintiff would be entitled to damages only if it could be shown that he had entered into transaction with all bonafide intentions to complete same—Plaintiff having proved by his conduct to contrary, is not entitled to any damages- Stipulation in agreement that "in case this deal does not go through then earnest money will be refunded and no liabilities to seller either" come in his way, he having opted to receive refund of earnest money paid by him— Held: Plaintiff is, therefore, entitled to receive Rs. 25,000/- only from defendant. [P. 764] E (ii) Specific Relief Act, 1877 (1 of 1877)-- —S. 25-Specific performance of contract-Whether defendant No. 1 knowing himself not to have any authority could execute agreement- Receipt being termed as agreement is sheet anchor of plaintiffs, case-It is specifically provided that in case deal does not go through, plaintiff will be entitled to refund of amount and receipt does not create any liabilities as against defendant No. l~On the contrary lead to inference that plaintiff was aware of fact that defendant No. 2 had no authority from defendant No. 1 to sell his property-Receipts does not disclose as to in what capacity amount was received by defendant No. 2-In case defendant No. 2 was appointed as attorney, receipt would have reflected that it was being executed by him in his such capacity—Held: Defendant No. 2, having no authority from defendant No. 1, was not competent to execute such receipt or to bind down defendant No. 1 in respect of socalled transaction-Suit dismissed. [Pp. 760, 762, 763 & 764] A, D & F (iii) Specific Relief Act, 1877 (1 of 1877)-- —-S. 22-Discretion of court to decree suit for specific performance of contract-How to exercise-Rational behind provision of section- Jurisdiction to decree specific performance is discretionary, and court is not bound to grant such relief merely because it is lawful to do so, but discretion of court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by court of appeal-It is further provided in S. 22 of Specific Relief Act that where performance of contract would involve some hardships on defendant, which he did not foresee, whereas his non-performance would involve no such hardship on plaintiff, court would be exercising discretion properly by refusing to order decree for specific performance. [P. 761] B (iv) Specific Relief Act, 1877 (I of 1877)-- —S. 24--Incapability of plaintiff to perform his part of contract and lack of 6o/za/We-Whether plaintiff could enforce and seek specific performance of contract-Involvement of plaintiff is to the extent of Rs. 25.000/- only- Plaintiff has neither done any substantial act, nor has disclosed to have suffered any losses in consequence of contract-Failure in depositing sale consideration is indicative of defendants incapacity of performing essential terms of contract that on his part remained to be performed- His failure also demonstrates want ofbonafide on his part, despite having agreed to deposit balance sale consideration while matter was in appeal-­ Held: Plaintiff is ex-facie debarred from seeking specific performance of contract. [P. 762] C Mr. Asghar Faruqui, Advocate, for Petitioner. None for Defendants No. 1, 2 and 3. Respondent Feroze through Mr. G.M. Qureshi, Advocate. Date of hearing: 6.3.1995. judgment Defendant No. 1, who owned plot No. 73, Khayaban-e-Bukhari, Phase VI, Pakistan Defence Officers' Housing Authority, Karachi, measuring about 2,000 square yards, on 27.7.1986, had agreed to sell it to the plaintiff through defendant No. 2 as his agent, for the total sale consideration of Rs. 8,00,000/-. On 10.8.1986, the plaintiff paid a sum of Rs. 25.000/- to defendant No. 2 as earnest money, remaining sale consideration being payable after one week of the receipt of the original documertfs from defendant No. 1, who was then posted in United Kingdom. A receipt of the aforesaid amount was executed by defendant No. 2 on behalf of defendant No. 1. On 16.8.1986, defendant No. 2 sent the transfer documents to defendant No. 2, which were received by him on 23.8.1986. The plaintiff thereafter contacted defendant No. 2 to find out if the documents were received from defendant No. 1. He was informed that the documents were not received as defendant No. 1 has gone out of London. Defendant No. 2 also assured the plaintiff that he would be writing letter to defendant No. 1 requesting him to come to Karachi personally to transfer the plot in favour of the plaintiff. Subsequently the plaintiff came to know that defendant No. 1 and 2 were planning to sell the property to some other person and, therefore, he filed the present suit for specific performance of the agreement dated 10.8.1986 with directions to defendant No. 3, the Pakistan Defence Officers' Housing Authority, Karachi, to finalise the transfer of the plot in favour of the plaintiff, etc. In the alternate the plaintiff has also prayed for damages in the sum of Rs. 3,00,000/-. Defendants No. 1 & 2 have filed their joint written statement stating that no power of attorney was executed in favour of defendant No. 2 to sell the property in suit. Defendant No. 2, being a relative of defendant No. 1, was asked to look after the interest of defendant No. 1, who, at that time, was serving in United Kingdom, to find out the market value of the plot and prospective buyer. The plaintiff as well as the estate agent were also informed by defendant No. 2 that he was not legally entitled to sell the plot and receive consideration and the most that he could do was to inform defendant No. 1, who will finally decide the matter. The plaintiff as well as the broker insisted on making payment of Rs. 25,000/- to defendant No. 2 fully agreeing that if defendant No. 1 did not approve the deal, it would be end of the matter. Specific clause was added in the receipt by way of abundant caution that in case the deal did not go through, the money would be refunded with no liability on the seller. About the telephonic conversation, it is stated that when defendant No. 2, informed defendant No. 1 about the offer of the plaintiff, the latter told him that he could not decide the matter at the amount and would consider the proposal. In the written statement all other allegations made by the plaintiff also have been denied by the said defendants and have specifically stated that the property was sold to defendant No. 4 by defendant No. 1 on 21.9.1986 for consideration of Rs. 10,00,000/- and the plaintiff was asked to collect the amount deposited by him but instead of collecting the amount, he started writing and sending intimidating letters and telegrams. Defendant No. 4 was joined as such on his application under Order I rule 10, CPC, as he claimed to have purchased the property from defendant No. 1 under agreement dated 21.9.1986. In the written statement, filed by defendant No. 4, it is disclosed that he had agreed to purchase the property after ascertaining from the records of defendant No. 3 that the property stood in the name of defendant No. 1. According to him, he had agreed to purchase the property on 21.9.1986 and the entire sale consideration was paid on 13.10.1986. Defendant No. 1 had executed the full set of transfer documents which were attested by Pakistan Embassy in England and were submitted to defendant No. 3, but the transfer letter could not be issued because of the prohibitoiy order passed by this Court on the application of the plaintiff. The notices were also published in respect of the transaction. It is further alleged that the suit is collusive and has been filed with a view to defeat entitlement of defendant No. 4 who is bonaflde purchaser for valuable consideration, without notice of claim of the plaintiff or any other person. It is further submitted that after taking full consideration from defendant No. 4, on 13.10.1983 and execution of all the documents in his favour by defendant No. 1, defendant No. 2 has instigated the plaintiff to institute the suit. It is alleged that telegraphic notice and the notice published in the newspaper are part of the game, played by defendants No. 1 & 2 and the plaintiff, having full knowledge of the rights of defendant No. 4, who had paid the entire sale consideration. On the pleadings of the parties, the following issues were framed:- "1. Whether the receipt dated 10.8.1986 constitutes a concluded contract between the plaintiff and defendant No. 1. ? 2. Whether defendant No. 4 is a bonafide purchaser for value without notice of the suit transaction? 3. Are any of the parties in collusion? 4. Whether the plaintiff is entitled to specific performance of the claimed contract? 5. In the alternative, is the plaintiff entitled to damages? If so to what extent? 6. What should the decree be?" It may be pointed out that the evidence in the matter was recorded on commission appointed at the request of the parties. The plaintiff filed his affidavit in evidence and produced (i) P-l, the photostat copy of the allotment order, issued by defendant No. 3 in favour of defendant No. 1, (ii) P-2, the receipt dated 10.8.1986, (iii) P-3, statement of account issued by defendant No. 3, (iv) P-4 & P-5, telegrams dated 16.10.1986 alongwith receipt sent by the plaintiff through his advocate to defendants No. 1 & 2 and defendant No. 3 respectively and (v) P-6, public notice of plaintiffs advocate published in the Morning News of 20.10.1986. The plaintiff also filed affidavit in evidence of the estate broker Habib Kassim. Defendant No. 1 with his affidavit in evidence has also produced the documents relating to sale of the property to Shahid Saleem, the estate broker of defendant No. 4 and Agreement of Sale between defendants No. 1 & 4, several receipts relating to payment of the dues to defendant No. 3 and copies of the documents submitted to defendant No. 3 for transfer of the plot in favour of defendant No. 4 and the receipt executed by defendant No. 1 acknowledging payment of the entire sale consideration from defendant No. 4, certified copies of orders granting injunction in this suit and the order passed in High Court Appeal No. 27/1987, Transfer Order issued by defendant No. 3 in favour of defendant No. 4. Lastly, the statement of account showing upto date payments made to defendant No. 3. It may be pointed out that the documents have not been correctly marked as exhibits. None of the parties have taken any exception to the above omission. However, the documents filed by the parties have been referred to in their respective affidavits in evidence. The said defendant also filed affidavit in evidence of Shahid Saleem, through whom the property was purchased. Before coming to the above issues, the following two pertinent factors are to be considered:- (1) The receipt, under which the plaintiff allegedly purchased the property, reads as under:- "Received 25,000 Rs. only from Mr. Mussarat Khan C/o Dawood Real Estate Consultant of 58C, Defence Market A Karachi. This advance of 25,000 Rs. is earnest money against plot No. 73 Khayaban-i-Bokhari, Phase VI, measuring 2000 sq yds or thereabout Total sale consideration is Rs. 8 lacs. Balance to be Rs. 7,75,000/- be paid to seller on receiving of documents from original owner (Air Cdr Shafique Haider) after one week of receiving paper and OK from defence authority. All dues whatever may be deducted from total sale. In case this deal does not go through then the earnest money will be refunded and no liabilities to seller either." (Emphasis supplied). The above receipt is being termed as an agreement and is the sheet anchor of the plaintiffs case. It is specifically provided that in case the deal does not go through, the plaintiff will be entitled to refund of the amount and the receipt does not create any liabilities as against defendant No. 1. (2) During pendency of the suit, prohibitory injunction was granted in favour of the plaintiff. Defendant No. 4 on becoming party to the suit,, applied for recalling the order of injunction. The prayer was declined. The order was assailed by defendant No. 4 in High Court Appeal No. 57/1987, which was dismissed by order dated 12.5.1987 with following observations:- "We enquired from Mr. N.A. Faruqui, learned counsel for respondent No. 3 whether his client would be willing to deposit the balance consideration in order to show his bonafide as to the sale transaction, his reply was that his client was ready to deposit the balance of the sale consideration. We are not inclined to admit the above appeal but will order that respondent No. 3 would deposit the balance consideration within a period of two weeks with the Nazir of this Court and the Nazir will deposit the same in Khas Deposit Certificates." The plaintiff, however, did not deposit the amount to show his bonafide in the transaction. The only interpretation of the above stipulation in the receipt would be that the plaintiff at the very inception of the contract had agreed to abandon his right to seek specific performance of the contract and also absolved defendant No. 1 of all his liabilities under the contract whatsoever in case the transaction of sale was not completed by reserving for himself only right of refund of the amount paid by him as earnest money to defendant No. 1. The plaintiff having failed to show his bonafide in failing to deposit the amount of balance sale consideration in Court, is again not entitled to decree of specific performance of the contract. Section 22 of the Specific Reliefs Act provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. It is further provided that where the performance of the contract would involve some hardships an the defendant, which he did not foresee, whereas his non-performance could involve no such hardship on the plaintiff, the Court would be exercising the discretion properly by refusing to order decree for specific performance. Clauses (a) & (h) of section 24 of the Specific Relief Act provide that specific performance of a contract cannot be enforced in favour of a person who cannot recover compensation for its breach or who has become incapable of performing or violates any essential term of the contract that on his part remains to be performed. In the instant case as the entire sale consideration was not paid by the plaintiff to defendant No. 1 and it has been demonstrated during the present proceedings that the plaintiff was not ready and willing to deposit the sale consideration; in case the decree is granted in favour of the plaintiff, defendant No. 1, who has submitted the documents for transfer and defendant No. 4, who is bonafide purchaser without notice will be confronted with hardships and in case the specific performance is refused, no hardship will be caused to the plaintiff, who, as shown above, had agreed to receive back the earnest money paid by him in- case the transaction is not completed. In view of the abov& stipulation, the defendant is not entitled and cannot recover compensation for breach of the contract Section 22 further provides that the Court would be exercising the discretion properly by granting decree for specific performance, when the plaintiff has done substantial acts or suffered losses in consequence of a contract, capable of specific performance. As noted above, the only involvement of the plaintiff, is to the extent of Rs. 25.000/- only. The plaintiff has neither done any substantial act, nor has disclosed to have suffered any losses in consequence of contract. Failure in depositing the sale consideration is indicative of defendant's incapacity of performing the essential terms of the contract that on his part remained to be performed. His above failure also demonstrates want of bonafide on his part, despite having agreed to deposit the balance sale consideration while the matter was in appeal. Under the above circumstances the plaintiff is ex-fade debarred from seeking specific performance of the contract. Coming to the issue, it may be noted that the first issue arises from the averments made by defendants No. 1 & 2 in their joint written statement to the effect that defendant No. 1 had not executed any power of attorney in favour of defendant No. 2 and that defendant No. 2 was not authorised to sell the property and such fact was communicated to the plaintiff as well as his estate broker. It is further stated that sale was subject to approval thereof by defendant No. 1. Since the suit has been filed by the plaintiff for specific performance of the contract, the burden of proof that receipt dated 10.8.1986 constitutes a concluded contract is on his shoulders. The plaintiff and his witness in their examination-in-chief have not controverted the above averments made in the written statement. Defendants No. 1 & 2 did not enter the witness-box. However, the plaintiff in his cross-examination by the learned advocate for defendant No. 4 stated that he had paid the amount to defendant No. 2 knowing that he was not owner of the property but he had shown to him a letter of authority. His witness Habib Kassim in his crossexamination deposed that defendant No. 2 had showing him a power-of-attorney executed on a stamp paper. The above contradictory statements did not inspire any confidence. On the contrary lead to the inference that the plaintiff was aware of the fact that defendant No. 2 had no authority from defendant No. 1 to sell his property in suit. Exhibit P/2 also does not disclose as to in what capacity the amount was received by defendant No. 2. In case defendant No. 2 was appointed as attorney, the receipt would have reflected that it was being executed by him in his such capacity. There is again lot of difference in letter of authority and power of attorney. The plaintiff and his witness are estate brokers and they cannot be so naive as to not keep with them or ask for a copy of the alleged power-of-attorney, if such document was in possession of defendant No. 2, as alleged by them. Defendant No. 2 having no authority from defendant No. 1, was not competent to execute the said receipt or to bind down defendant No.l in respect of the so called sale transaction. The above finding also finds support' from the construction of Ex. P/2, dilated upon hereinabove. Neither the learned advocate for the plaintiff was able to point out any reason for incorporating unnoval clause in the said document, absolving defendant No. 1 from contractual liability, nor any reasonable cause is available on record, except the one that defendant No. 1 had no authority from defendant No. 1 to enter into sale transaction in respect of the suit property and that it was subject to approval of defendant No. 1. It, therefore, cannot be said that the said receipt constitutes concluded contract between the plaintiff and defendant No. 1. In so far as second issue is concerned, it has all along been case of defendant No. 4 that he is bonafide purchaser without notice, but the plaintiff or his witness in their evidence have not deposed a word to rebut the above plea. Defendant No. 4 and his witness in their respective evidence have specifically asserted that they were unaware of the transaction between the plaintiff and defendant No. 1. The public notice was got published in the Morning News on 20.10.1986, whereas the sale agreement was executed between the first and the fourth defendants on 13.10.1986, on which date the entire sale consideration as paid to the first defendant, who delivered the possession of the plot to defendant No. 4. The said issue is accordingly replied affirmatively. The third issue arise from the averments made by defendant No. 4 in his written statement terming the suit to be collusive and that it has been filed with a view to defeat his entitlement. It is alleged that after payment uf full consideration by defendant No. 1, defendant No. 2 had instigated the plaintiff to file the suit. In his evidence he deposed that the plaintiff has been set up by the first two defendants and the estate broker Habib Kassim to blackmail him. The above deposition was not challenged although it was got reasserted in the cross examination, to be true. Nonetheless, looking at the pleadings and the overall effect of the evidence, it cannot be said that any of the parties were in collusion. The issue is accordingly replied in negative. With regard to the fourth issue, on construction of Ex. P/2 and unwillingness and reluctance on'the part of the plaintiff to deposit the balance sale consideration, it has been found that the plaintiff had abandoned his right to such specific performance of the contract and is not entitled thereto. While considering evidence on record, it is found that the plaintiff has also admitted that in case the transaction of sale did not mature in completion, his onlyentitlement in terms of Ex. P/2 was to refund of the earnest money. He so affirmed in reply to the question put to him by the learned counsel for defendant No. 4, wherein he stated, "It is correct to suggest that under Ex. P/2, if transaction is not completed, then I shall be entitled (to) the refund of Rs. 25,000.00 ...." However, the learned counsel for the plaintiff relying upon Mussarat Shaukat All vs. Safia Khatoon(1994 SCMR 2189), contended that notwithstanding the condition provided for refund of the amount in Ex. P/2, the plaintiff having demanded specific performance of the contract in his telegraphic notice, is entitled to such relief. The submission of the learned counsel overlooks the fact that apart from the above condition, the said document specifically pronounces that it does not create any liability as against defendant No. 1 by stating, "no liability to seller either." To put in other words, the plaintiff had agreed that defendant No. 1 was not liable to perform the contract of sale specifically and that the plaintiff would not seek the relief of performance of the contract specifically. The above authority is distinguishable on facts and does not advance the plaintiffs case. Additionally, as noted above, the plaintiff has not been ready and willing to perform his part of the contract. Such conduct by itself is sufficient to exercise discretion in refusing the specific performance of the contract. The issue is replied accordingly. In regard to issue No. 5, it may be pointed out that the plaintiff has claimed damages in the sum of Rs. 3,00,000/-, being the difference of the price agreed upon to be paid by him and the market value of the properly at the time of institution of the suit. The plaintiff would be entitled to damages only if it could be shown that he had entered into transaction with all bonafide intentions to complete the same. The plaintiff having proved by his conduct to the contrary, is not entitled to any damages. The stipulations referred to above in the agreement also come in his way, he having opted to receive refund of the earnest money paid by him. The plaintiff is, therefore, entitled to receive Rs. 25,000/- only from defendant No. 1. In view of the above, the suit is decreed only to the extent of Rs. 25.000/- as against defendant No. 1 and the suit, in so far as it relates to specific performance of the contract and consequent prayers contained therein, is hereby dismissed with costs to defendant No. 4. (B.T.) Order accordingly.

PLJ 1996 Karachi 765 (DB) PLJ 1996 Karachi 765 (DB) Present: wajihuddin ahmed and abdul majid khanzada, JJ. PROVINCE OF SINDH-Respondents Versus M/s. UNITED CONTRACTORS LTD.--Appellants H. C.A. No. 141 of 1995, dismissed on 2-4-1996. Decretal amount-Interest on- —Interest on decretal amount-Whether learned Single Judge was in error in allowing interest at 10% per annum on decretal amount-Question of- High Court's Division bench is of the view that hardly any interest has been allowed by learned single judge-Over the years average rate of inflation in economy has been more than 10% annually which is rate at which purported interest has been allowed and such grant, therefore, do not in effect, qualify as interest at all. . [P. 766] A Mr. KM. Nadeem, A.G Sindh for Appellant Mr. Qazi Faiz Isa, Advocate for Respondent Date of hearing: 2-4-1996. judgment Wajih-ud-Din Ahmad, J.--The dispute involved in this appeal pertains to two contracts, executed by the respondent/plaintiff on 15.3.1971 and 29.4.1971. Such were repair and renovation contracts pertaining to roads and both were successfully completed on 10.12.1971 and 16.12.1971. The dispute, which was brought before the Court in 1975 through Suit No. 23 of 1975, pertained to the 7th and 8th running bills which were slashed, the agreed rates stay in unilaterally curtailed in the final bill. Relevant to the running bills it was admitted, according to the judgment of the learned single Judge, that the plaintiff/respondent raised protest, but such was deferred and later on rejected. The learned Additional Advocate General Sindh, however, says that such protest pertained to only one running bill and not to both. Ee that as it may, though the learned Additional Advocate General, Sindh, in support merely relies on an assertion in para 13 of the plaint in such context, which does not imply what is contended, the fact remains that the learned single Judge also examined the report of the Superintending Engineer B & R, G.M. Guddu Barriage, Hyderabad, dated 15.1.1972 (Ex. 5-A/46), where it was conceded that there cannot be any subsequent change in the rates for any reason and that the plaintiff-firm had objected to such reduction which, in the opinion of the Superintending Engineer, was valid. This curtailment of rates being the basis of 1 reduction in the two running bills, it is obvious that such reduction was i conceded by the plaintiff/respondent, let alone accepted. It is i noteworthy that the appellant/defendant examined only one witness such witness besides being not personal conversant with the facts, did even know about the above report of the Superintending Engineer. Tlie evidence from the side of the plaintiff/respondent having remained unrebutted, the learned single Judge was right in decreeing the suit, allowing the reduced figure in the 7th and 8th running bills and adding the balance figure in the final bill, brining forth the total of Rs. 392,419.71. Besides the above, the only other question raised by the learned Additional Advocate General, Sindh, is that the learned single Judge was in error in allowing interest at 10% per annum on the decretal amount for the period the claim had remained due minus the grace period, conceded by the learned single Judge. It is relevant to observe that these were two contracts, which were successfully completed way back in late 1971, payment in relation to which had remained due before the learned single Judge upto 26.2.1995, when the judgment was rendered and all that the learned single Judge did was to allow interest at 10% per annum, which too regrettably is not acceptable to the appellant/defendant. We are of the view that hardly any interest has been allowed by the learned single Judge for we take judicial notice of the fact that over the years the average rate of inflation in the economy has been more than 10% annually which is the rate at which the purported interest has been allowed and such grant, therefore, does not, in effect, qualify as interest at all. The depreciation in the value of money, something the learned single Judge was almost regretful not to have allowed by way of an equliser and which, modestly, he termed 15 times over the period, in real terms, could have been more than 50 times, if only the value of gold was reckoned, which could not have been an irrelevant factor since, for a long time, the world economies had been ruled by the gold standard. As it is, only 10% per annum purported interest was decreed and such as discussed appears to unexceptionable; hardly qualifying as interest. In the above circumstances, there has been no merit in this appeal and we dismiss it with costs. The miscellaneous applications also, which are listed today, stand disposed of having served their respective purposes. (K.A.B.) Appeal dismissed.

PLJ 1996 Karachi 767 (DB) PLJ 1996 Karachi 767 (DB) Present: AGHA RAFIQ AHMED KHAN, AND WAJIHUDDIN AHMED, JJ. HASSAN ALI & CO.--Appellant versus POLY COTTON S.A. and others-Respondents H. C.A. No. 57 of 1996, dismissed on 23-5-1996. (i) Arbitration Act, 1940-- —S. 32 and 33 read with order 7 Rule 11 of Civil Procedure Code, 1908-- Foreign Arbitration Award-Enforcemen of-Whether a suit possible/ maintainable in Pakistan-Question of~Section 32 and 33 of Arbitration Act provides that an Arbitration agreement or award shall he contested only by an application and not by a suit-Suit is therefore premature and plaint has been rightly rejected under Order 7 Rule 11 CPC, as being barred under law of Arbitration-Appellant's in order to forestall enforcement of Award filed on plea that Foreign Award is no applicable in Pakistan under Arbitration act, 1940-Suit of plaintiffs/appellants is, however, dearly not maintainable for want of jurisdiction and on account of legal bar even though award was made at Liverpool U.K. [P. 768] B (ii) Words and Phrases-- —Force Majeure means superior power; an unforeseeable or uncontrollable course of events, excusing on from fulfiling a contract-Chambers Dictionary Edition 1993. [P. 767] A Mr. Noor Ullah A. Mangi, Advocate for Appellant. Mr. S.A. Sarwana, Advocate for Respondents. Date of hearing: 23-5-1996. judgment Agha Rafiq Ahmad Khan, J.-This is an Inter-Court appeal from the order of the Single Judge sitting on original side, rejecting the plaint under Order 7 Rule 11 C.P.C. in Suit No. 888/95 filed by the appellant for declaration and permanent injunction. The appeal has been dismissed in limine by a short order on 23.5.1996. These are the reasons for that order. The facts in brief are that appellant/plaintiff and respondent/defendant No. 1 entered into a contract on 20.11.1993 whereby the appellants agreed to sell ten thousand bales of raw cotton 3750.00 Lbs at the price of US Cent 50.00 per Lb FOB Karachi. This contract included the Arbitration Clause as under :-- "This contract is subject to the Rules and Regulations of the Liverpool Cotton Association Ltd. Place of Arbitration : Liverpool". The appellants committed a breach of contract ty failure to supply the Cotton Bales as agreed. According to the appellants the Contract become incapable of performance due to "Force Majeure" (superior power; an unforeseeable or uncontrollable course of events, excusing one from fulfilling contraction) as the cotton was in short supply in the country and the ^_ Federal Government of Pakistan imposed a ban on exports. The respondent No. 1 without any loss of time referred the dispute to Respondent No. 2, Liverpool Cotton Association Ltd., who nominated the Respondent No. 3 and 4 as Arbitrators for making an Award at Liverpool as agreed. The appellants — associated themselves with the Arbitration Proceedings. The Award was made on 16.11.1995. According to the terms of the Award the buyers were required to invoice back to the sellers ten thousand bales of cotton at the unit price of 89.00 US Cent per Lb. The Sellers were required to pay the buyers a sum of US $ 1837500.00 being the difference between the contract value and the market value on the date of breach namely 14.6.1995. The sellers were also required to pay to the buyers US $ 68,276.97 as interest together with „> further interest at 2% from 7th December, 1995 until the date of payment and also the costs of the Award. The appellants in order to forestall the enforcement of this Award filed the above suit on the plea that the Foreign Award is not applicable in Pakistan under the Arbitration Act, 1940. The suit of the plaintiffs/ .appellants is, however, clearly not maintainable for want of jurisdiction and on account of legal bar even though the ward was made at Liverpool, U.K. The appellants had themselves agreed to the Award been made by the Liverpool Cotton Association Ltd., nominees at Liverpool and not suit or application arising from the said Award could be moved in any Court in Pakistan for want of territorial jurisdiction. In any case no suit shall lie on any ground, whatsoever, for a decision upon the existence, effect or validity of an Arbitration Agreement or Award, nor shall any Arbitration Agreement or award be set-aside, amended, modified or in any way effected otherwise than as provided under the Law of Arbitration. This was agreed to being the Resolution of Civil Justice Committee 1924-25. Under the Arbitration (Protocol & Convention) Act, 1937 (Section 4(1): which reads as under :- "4.~(1) A foreign award shall, subject to the provisions of this Act, be enforceable in (Pakistan) as if it were an award made on a matter referred to arbitration in (Pakistan)." "(2) ............................................................................................ " Sections 32 and 33 of the Arbitration Act provide that an Arbitration Agreement or Award shall be contested only by an application and not by a suit. The suit is therefore, pre-mature and the plaint has been rightly rejected by the learned single Judge under Order 7 Rule 11 CPC, as being barred under the law of Arbitration. (K.A.B.) Appeal dismissed.

PLJ 1996 Karachi 769 (DB) PLJ 1996 Karachi 769 (DB) Present: WAJIHUDDIN AHMED AND ABDUL MAJID KHANZADA, JJ. M/s WAHID ICE & COLD STOEAGE PLANT-Appellant Versus NATIONAL BANK OF PAKISTAN-Respondent F.A. No. 63 of 1993, dismissed on 17-4-1996. (i) Banking Companies (Recovery of Loans) Rules, 1908-

Rule 8-Main object of-Object of Rule 8 is no more than to duly and effectively forestall evasiveness and avoidance on part of defendant from being served with court process-Due service still remains sine qua non of exercise-Thus if genuine efforts at effecting personal service stand aborted, essentially for something defendant can legitimately be blamed, presumptive service by publication alone may be invoked to fit into the stipulations of rule 8. [P. 771] A (ii) Banking Companies (Recovery of Loans) Rules, 1908- Rule 8~Issuance of process-Mode of-Issuance of process in all three modes contemplated by rule 8 is yet mandatory-Not only this, there must be genuine attempt(s) to serve defendant in ordinary course and under postal cover-Only then service in any of three modes postulated by Rule should be deemed sufficient-Rule 8 does not, by itself, confer any presumptiveness in service either by post or in the way of publication. [P. 771] B & C Mr. Jaued Frooqi, Advocate for Appellant. Mr. A.R. Siddiqi, Advocate for Respondent. Date of hearing: 17-4-1996. order In Suit No. 784 of 1989 before the Special Court of Banking at Karachi, where the respondent was plaintiff and the appellant was defendant, an order to the following effect was passed :-- "None present for plaintiff. Defendant is called absent though served by publication on 20.10.1989. He has not been served through bailiff and by registered post. Service against defendant is held good on 20.10.1989. No application for leave to defend is filed by defendant. Suit to proceed exparte against him. Put off to 20.1.1990 for further proceedings." Subsequently, on 2.1.1990, the appellant-defendant filed an application under Order XXXVII Rule 3 C.P.C. and another under Section 5 of the Limitation Act. Relief was sought on the ground that the defendant had not been served in any of the modes adopted by the court namely, service through bailiff, under postal cover and by publication and that the defendant's proprietor had been informed by an officer of the plaintiff-bank on 23.12.1989 of the pendency of proceedings, which being the case, the defendant was applying for leave to defend and for condonation upon re­ opening of the court, after the winter vacations on 2.1.1990. The application for condonation under Section 5 of the Limitation Act, was dismissed by the learned Presiding Judge on the ground that no sufficient cause was shown because the publication, at any event, had taken place on 20.11.1989 and the defendant should be deemed to have been served thereby, in turn satisfying the criterion that service in one of the prescribed modes was sufficient. As to the merits of the controversy, the trial Court disallowed leave to defend but that aspect of the case would be dealt with separately. Regarding condonation of delay, the learned counsel for the appellant has urged that in view of what was said in United Bank Ltd. v. Mohibali Tannery Ltd., PLD 1994 Karachi 275, genuine and real efforts ought to have been made to serve the appellant-defendant in accordance with the provisions in the Banking Companies (Recovery of Loans) Ordinance, 1979, and the Rules made thereunder but because, admittedly, neither service in the ordinary course nor by post was ever effected on the defendant and what is more the defendant never came to see the newspaper publication, on which basis alone service was held to be good, the defendant, in effect, had filed the application under Order XXXVII Rule 3 C.P.C. for leave to defend in time and in substance there was no need for condonation of delay. As to such question of the application for leave to defend being in time and service not being duly effected in the manner prescribed, there appears to be force in the contention of the learned counsel and some support can undoubtedly be drawn from the precedent in the case of United Bank Ltd. supra. On the facts and circumstances of the case, it was clear that the appellant-defendant was neither served through bailiff nor by post. But that, as pointed out in Emerite Bank International v. Dost Muhammad Cotton Mills, 1993 MLD 54, another Karachi decision, this time relief upon by Mr. A.R. Siddiqi, was not a necessaiy requirements under the Banking Companies (Recovery of Loans) Ordinance and its Rules, the Rules being of 1980. However, the two Karachi decisions in the case of United Bank Ltd. and Emerite Bank International, if examined closely, are clearly reconcilable. Both draw upon the Supreme Court authority in Ahmed Autos v. Allied Bank of Pakistan Ltd., PLD 1990 SC 497, where, to put it shortly, service by publication alone was found sufficient in circumstances indicating that the defendant actually did come know of such publication. While it is correct that the postulates of the special law namely, the Banking Companies Ordinance and its Rules are different than those envisaged in the pristine concepts of the Code of Civil Procedure, the fact remains that a real and not a sham effort to serve the defendant under Rule 8 of the Banking Companies (Recoveiy of Loans) Rules, 1980, is to be made and, as hinted in the cited case of United Bank Ltd., the basic requirements of justice, equity and good conscience have to be observed in so doing. In the instant case, we have gone through the record with the learned counsel and both of them agreed that no notices whatsoever, either through bailiff or under postal cover, were issued in the suit and all that transpired, towards effecting service, was issuance of the requisite notice through publication in the press and one such basis alone the learned Presiding Judge found service to be good and decided to proceed Ex parte in the matter as quoted herein above. The reason for this laxity is not far to find. Such kind of approach has developed because of over-emphasising the letter of law and overlooking its spirit. The object of Rule 8 of the Rules is not more than to duly and effectively forestall evasiveness and avoidance on the part of defendants from being served with the court process. Due service still remains the sine qua non of the exercise. Thus if genuine efforts at effecting personal service stand aborted, essentially for something the defendant can legitimately be blamed, the presumptive service by publication alone may be invoked to fit into the stipulations of Rule 8 ibid. Issuance of process in all the three modes contemplated by Rule 8 supra is yet mandatory. Not only this, there must be genuine attempt(s) to serve the relevant defendant in the ordinary course and under postal cover. Only then service in any of the three modes postulated by the rule should be deemed sufficient. If the legislative intent was to resort to presumptive service through publication alone, it could have been so expressed but then rule-making power having a nexus with subordinate legislation such should have given rise to a challenge on grounds unreasonableness etc. Look at the matter whichever way we may, what came about was not permissible either under the authority of the case of Emirate Bank International or of the other single Bench decision of this court in Re : United Bank Ltd. afore-quoted or even upon the Supreme Court dicta in Ahmad Autos the last of which expressly lays down a requirement to issue process in all the three modes prescribed. The requirements of Rule 8 ibid, accordingly, were not satisfied. What is more, about the publication itself, the appellant-defendant made an express and unequivocal statement that such did not come to its notice and the pendency of the proceedings was made known only through an officer of the concerned bank, a proposition that does not seem to have been seriously controverted. It may bear mention here that Rule 8 in the Rules does not, by itself, confer any presumptiveness in service either by post or in the way of publication. For due presumptions to arise recourse to Section 3 of the Banking Companies (Recoveiy of Loans) Ordinance, which stipulates that the "provisions of the Ordinance shall be in addition to" and, save as provided, "not in derogation of any other law for the time being in force", shall have to be made. This, in turn, would raise a presumption relative to postal service by reselling to the General Clauses Act. As to service through publication a cross reference to Order V rule 20 C.P.C. may likewise be made but for such service to be "as effectual as if it had been made on the defendant personally" it may be relevant to consider whether the defendant as required by rule 20 of Order V.C.P.C. was keeping out of the way or could not be served in the-ordinary manner. This arises because we cannot lift merely the presumptive part of the rule and totally ignore the rest. Hence, an expectation that there should be due efforts to personally serve the defendant simultaneously and it is only in the over-all circumstances of a case that sendee by publication may be deemed enough in itself. No personal process having effectively been attempted let alone served and the defendant denying any timely knowledge of the publication the presumption, if any, regarding service stood displaced. In the circumstances of the case, therefore, either no delay arose or condonation was merited and thus dismissal of the application under Section 5 of the Limitation Act by the learned trial Judge was clearly erroneous. Such part of the order cannot be upheld. This brings us to the merits of the controversy and there, as well, the learned trial Judge has proceeded to dismiss the defendant's application for leave to defend under Order XXVII rule 3 C.P.C. As to the facts of the case, a project loan in the sum of Rs. 785,000.00 was sanctioned to the defendant by the bank out of which a sum of Rs. 200,000.00 was disbursed to the seller of the machinery, required for establishing an Ice Factory whereas another sum of Rs. 63,000.00 was made over directly to the defendant for the purpose of raising the requisite structure for setting up of the unit. Mr. Javed Farroqi has contended that because the entire project loan was not released, the bank was in breach of contractual obligations and, therefore, the maximum that it could have been entitled to was repayment of the actual amount disbursed without any profit or other accrual. Mr. A.R. Siddiqui, on his part, has placed on record a letter dated 13.8.1983 with which was appended a letter dated 13.8.1983 from the supplier of the machinery requiring payment of Rs. 250,00.000 so that machinery could be made ready for delivery in 1983. In the defendant's covering letter, dated 15.8.1983, corresponding request for such payment of Rs. 250,000.00 to the supplier was made. Another letter placed on record by Mr. Siddiqui is one dated 14.4.1985, again by the defendant, whereby the above referred payments of Rs. 200,000.00 and Rs. 63,000.00 were acknowledged, no complaint whatever of the balance not being paid was raised and on the contrary it was pointed out that the construction work for the project could not commence as water and power connections on the existing plot could not be obtained. As a result, the defendant communicated that in such situation it had decided to change the line of business as well as to substitute the location to another plot, security of which plot was also offered for release of further amount. One of these documents is disputed by the learned counsel representing the defendant-appellant before us. This apart, the learned Presiding Judge of the Special Court has relied upon the letter dated 31.3.1988 from the defendant to the bank wherein no dispute whatever with regard to the actual advance of a total sum of Rs. 263,000.00 was raised. In such circumstances, there does not appear to have been any error in refusing to grant leave to the defendant to defend the suit and findings on that score must be upheld. However, the learned counsel for the plaintiff-bank, while arguing the case before us, has agreed that instead of allowing accruals on the principal amount at 11% per annum with quarterly rests, decree may be modified so as to carry such accruals at 11% per annum simple and without, any rests. In view of inflation, which manifestly has been running in two digits, this, in the circumstances, is hardly any interest and no exception can be taken to it even in terms of Article 2-A in the Constitution, as urged by Mr. Javed Farooqi. With such modification, as suggested by Mr. A.R. Siddiqui, the decree is, accordingly, upheld and the appeal is dismissed. (K.A.B.) Appeal dismissed.

PLJ 1996 Karachi 773 PLJ 1996 Karachi 773 Present: rasheed A. razvi, J. MUHAMMAD HAFIZ AZMAT SHEIKH-Plaintiff versus M/s. NATIONAL GENERAL INSURANCE CO. LTD. etc--Defendants C. M.A. 5227/95 accepted on 25-4-1996. (i) Civil Procedure Code, 1908 (Act V of 1908)-- —O.III R. 4 read with Rule 50 of Sindh Chief Court Rules (O.S)~ Va&a/ataama--Discharge of-Permission for--A Vakalatnama/Power/ Memo of appearance of an advocate is deemed to exist on record until it is terminated with leave of court--An advocate seeking discharge of his vakalatnama should comply with requirements of Rule 50 of Sindh Chief Court Rules (O.S.)--An advocate is not entitled to return case file, whatever grounds may be, prior to seeking discharge of his vakalatnama from court. [Pp. 774 & 776] A & C (ii) Pakistan Legal Practitioners and Bar Council Rules, 1976-- —Rule 139 entities an advocate to decline association with another advocate as a challenge unless dues of such advocate are fully paid. [P. 774] B Mr. Abdul Rauf, and AH Murtaza Hussain, Advocate for Plaintiff. Mr. A.HMirza, Advocate for Defendants No. 1 and 2 Mr. Mirza Adil Baig, Advocate/Member Sindh Bar Council on Court Notice. Dates of hearing : 22-10-1995, 27-11-95, 17-4-1996. order This is the second application filed by Mr. Ali Murtaza Hussain, Advocate under Order III, Rule 4, C.P.C. seeking permission for discharge of his Vakalatnama. His previous application bearing No. CMA-4894-95 was dismissed on 8-10-95 as it was not in accordance with Rule 50 of the Sindh Chief Court Rules (O.S.). However, this Court permitted him to file fresh application in accordance with the aforesaid rule. This time he has filed this application under Order III Rule 4, C.P.C. which, for all legal intent and purpose, is an application filed under Rule 50 of the Sindh Chief Court Rules (O.S.). On 22-10-1995, when this application came up for hearing before Mr. Muhammad Shafi Muhammadi, J. (as he then was) it was observed that the learned counsel is not entitled for discharge of his Vakalatnama on the grounds mentioned in the letter. A notice was issued to the Sindh Bar Council with a request to assist the Court on this question. In compliance of this notice, the Sindh Bar Council authorised the then Vice Chairman Mr. Mirza Adil Baig to appear and assist the Court. On 27-11-1995 when this matter came up before the same Judge, the following three questions were framed after hearing the parties. "(i) Whether an advocate is entitled to seek discharge of his Vakalatnama on the grounds mentioned in the present application ? (ii) Whether an advocate who has received full or part fee from his client is entitled to seek discharge of his Vakalatnama ? (iii) Whether an Advocate can return the case file to his client prior to obtaining discharge from the Court ?" I have heard Mr. Ali Murtaza Hussain, Advocate Mr. A.H. Mirza, Advocate and Mr. Abdul Rauf, Advocate. I have also heard Mr. Mirza Adil Baig, Advocate on behalf of Sindh Bar Council. It is contended by Mr. Mirza Adil Baig that in view of Order III Rule 4, C.P.C. an advocate is entitled to seek discharge of his Vakalatnama with the leave of the Court and not otherwise. He has referred to the following cases :- (1) Pakistan through General Manager Pakistan Railways v. Messrs Q.M.R. Expert Consultants (P.L.D. 1990 Supreme Court 800); (2) Messrs Aziz Flour Mills and 2 others v. The Industrial Development Bank of Pakistan (1990 C.L.C. 1473); and (3) Kamal Din and others v. Nazir Ahmad (1987 C.L.C. 1208). It is now settled law that a Va&atatoama/Power/Memo of appearance of an advocate is deemed to exist on record until it is terminated with the leave of the Court. It is also settled law that an advocate seeking discharge of his Vakalatnama should comply with the requirements of Rule 50 of Sindh Chief Court Rules (O.S.). (For further reference see the cases of Abdul Latif v. Jamal Din 1979 SCMR 183, Mst. Qamar Sultana Alias Qamarunnisa v. Abdul Hussain and another PLD 1982 Karachi 355 and Ex. Hav. Mirza Mushtaq Baig v. General Court Martial 1994 S.C.M.R. 1948). In the last reported case, it was held by the Hon'ble Supreme Court that even in cases where the papers have been taken away by the client, it is the duty of the advocate to appear on the date of hearing till such time he withdraws his power or it is cancelled according to the rules by his client. Before filing the instant application, Mr. Ali Murtaza, Advocate addressed a letter dated 25-09-1995 to the plaintiff informing him that he intend to withdraw his Vakalatnama from this suit and that he has enclosed the case file. The reasons given in the letter for returning file and for withdrawing Vakalatnama were that the plaintiff has engaged another advocate before the Special Court, Banking, Karachi which was compromised without intimation to him and that the plaintiff has engaged another advocate for which he has paid Rs. 2,00,000/- to the new advocate as professional fee. It was further stated in the said letter that the plaintiff had not paid the balance professional fee to him. Therefore, according to the learned counsel he apprehending that the plaintiff may change another advocate without clearing his balance fee, he had returned the case file. Now, reverting to the first question, whether in the circumstances, as narrated in the letter of Mr. Ali Murtaza Hussain, is he entitled to seek discharge of his Vakalatnama, it is suffice to observe that the grievance of the learned counsel is of serious nature. It is alleged by him that although his part possessional fee was not paid by the plaintiff but in the same case, which was later on transferred from this Court to the Special Court, (Banking) Karachi, the plaintiff has engaged an advocate for the purpose of compromise after paying him huge professional charges. It is apparent from Order III of Civil Procedure Code, 1908 as well as Rules 49 and 50 of the Sindh Chief Court Rules (O.S.) that these are silent as far as grounds or reasons on which an advocate is entitled to seek his discharge from his professional responsibilities to conduct a case. However, in the Chapter XII of the Pakistan Legal Practitioners and Bar Council Rules, 1976, which describe in detail the Cannons of Professional Conducts and Etiquette of Advocates, Rule 139 lends support to some extent, to support the present conduct of the learned counsel. It is reproduced as hereunder :- "139. A client's proffer assistant of additional advocate should not be regarded as evidence of want of confidence but the matter should be left to the determination of the client. An Advocate should decline association as a colleague unless the dues of the advocate first retained are paid." (underlining is mine) The lawyer client relationship is a most legitimate and sacred relationship based on the consent of mutual trust. It is also complex and complicated relationship depending upon the background of the clients involved in litigation as well as the prestige and competence of the lawyers processing the dispute. It is also based on implied contract. There may be several kinds of situation where a client may become dis-satisfied from the performance of his counsel and as a result may revoke authority of an advocate to act on his behalf. Likewise, there may be several instances where an advocate may be entitled to seek discharge of his Vakaltnama where his client may have betrayed his confidence or failed to fulfil other obligations. It is very difficult to highlight such circumstances in detail in this order but for the present controversy it would be suffice to observe that the grounds mentioned by Mr. Ali Murtaza Hussain, Advocate were sufficient to entitle him to seek discharge of his Vakalatnama. This observation may also be treated as an answer to the second question. Mr. Mirza Adil Baig, Member Sindh Bar Council has referred to the case of S.T.K. Sundara Chettiar v. V.K.M. Rathandarama Cheetiar and others (AIR 1958 Madras 122) to show that in India there exists two schools of though on the question whether an advocate is entitled to seek discharge of his Vakalatnama when, either he has received part payment or full payment. I do not see any reason to consider the rule laid down by a learned Single Judge of Madras High Court, as in my view Rule 139 of the Pakistan Legal Practitioners and Bar Council Rules, 1976, entitles an advocate to decline association with another advocate as a colleague unless the dues of such advocate are fully paid. This principle will be fully attracted where a client has engaged only one advocate and whose professional charges, as agreed, has not been paid. Rule 154 further envisages several consideration for determining the quantum of fee. I may observe here that the Bar Council Rules, 1976 have not limited the professional fee of an advocate by fixing minimum or maximum scale. However, in para 3 of Rule 147 a note of caution is made, which has become very relevant in the present day : "In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money making trade." Now coming to the third question, whether an advocate is entitled to return the case filed before seeking discharge from the Court, it is observed that an advocate is not entitled to return the case file, whatever the grounds may be, prior to seeking discharge of his Vakalatnama from the Court. As I have already mentioned above that it is settled law that a Vakalatnama of an advocate is deemed to exist on record unless an order of discharge is passed by the Court. Therefore, upto this extent the act of learned counsel was contrary to the provisions of Order III C.P.C. and Rule 50 of the Sindh Chief Court Rules (O.S.). Mr. Abdul Rauf, Advocate who has now appeared on behalf of the plaintiff, has given his no objection to the grant of this application. In these circumstances, no further action is warranted, as far as the third question is concerned. In view of the above discussion, application of Mr. All Murtaza Hussain, Advocate (CMA-5227/1995) is granted and his Vakalatanama is discharged. Office is directed to replace his name from the case file with the name of Mr. Abdul Rauf, Advocate. (K.A.B.) Application accepted.

PLJ 1996 Karachi 777 [DB] PLJ 1996 Karachi 777 [DB] Present: WAJIHUDDIN AHMED AND SHAH NAWAZ AWAN, JJ. MYZONE PAKINTERNATIONAL-Petitioner versus COLLECTOR OF CUSTOMS EXPORTS etc.-Respondents C.P. No. D-3223 of 1993 and C.P No. D of 1995 of 1994 allowed on 26.10.1995. Export Rebate-- —Export rebate-Notification for-Similar type of item which is not specifically referred in notification-Whether qualify for export rebate or not-Notifications are calculated to expand and encourage exports and have to be liberally construed in larger public interest, an aspect which does not seem to have merited consideration at departmental level-­ Indeed, department has hardly cared to pass any orders as such in the matter-Matter referred back to Deputy Collector (Exports) .Customs to re-examine whole issue and apply law in consonance with time honoured principles-Petitions allowed. [P. 780] A Mr. Ahmad H. Shah, Advocate, for Petitioner. Mr. Farooq H. Nack, D.A.G. for Respondents. Date of hearing: 26.10.1995. judgment Wajihuddin Ahmed, J.--The petitioners maintain that they had exported some bleached and dyed/printed woven fabrics in the way of manmade garments, to be specific "table covers" and "cushion covers" and, in turn, claimed duty drawback. The petitioners' duty drawback claim for 100% polyester sets of "table covers" was rejected whereas their similar claim of 100% polyester "cushion covers" was allowed with corresponding issuance of rebate cheque. Voluminous correspondence seems to have ensued, the respondents, ultimately, requiring the petitioners to fill Form "A" which the petitioners expressed their inability to do, since the petitioners are commercial and not industrial exporters. In the process, a period of over two years went by without redress and the petitioners were constrained to bring the first titled petition on 20.11.1993. While the second petition followed on 28.8.94, the first stood admitted to regular hearing on 10.3.1994 upon the following observations being recorded:- "Contention is that the items specifically referred to in the notification only enlarge the scope of the Notification SOR No. 187(I)/1991 dated 10.3.1991 but the list given is not exhaustive. Further contention is that if bedwears, pillow covers and cushion covers can be included in the list of items mentioned in the notification, there is no reason why the table covers of the texture manufactured by the petitioner should be excluded." Now in the successive applicable notifications, visualising the duty drawback facility, the imported raw material, inter alia, consists of polyester yarn. The goods produced or manufactured are to be woven or knitted fabrics of man-made yarn or woven or knitted ready-made garments, the last including socks, pullovers, gloves, vests, loongis, handkerchiefs, bedwears, pillow-covers and cushion covers, falling in two categories and carrying varying duty drawbacks. According to Mr. Farooq H. Naek, D.A.G., "table covers" do not qualify either as "fabrics" or "garments" and, therefore, export rebate was rightly declined. With regard to the word "fabric" in the relevant notifications, the learned D.A.G. has drawn our attention to Chambers 20th Centuiy Dictionary, where the word is, amongst other things, defined to mean, "manufactured cloth". Correspondingly, Mr. Farooq H. Naek, in the context of the words, "man-made" and "ready-made", occurring in the applicable notifications, has taken us through Section XI, Textile & Textile Articles, where the expression "made up" is defined, for the purposes of the Section, in these words:- "For the purposes of this Section, the expression "made up" means:- (a) Cut otherwise than into squares or rectangles; (b) Produced in the finished state, ready for use (or merely needing separation by outing dividing threads) without sewing or other working (for example, certain dusters, towels, table cloths, scarf squares blanks. Like reference by the learned D.A.G. is also made to Section XI Gen., (11) Chapters 56 to 63, page 714, in the Brussels Explanatory Notes, whereas well the concept of "made up" articles is dealt with as herein below:- "Made up articles. Under Note 7 to this Section, the expression "made up" in Chapters 56 to 63 means:- (1) Merely cut, otherwise than into squares or rectangles, for example, dress patterns of textile material; articles with their edges pinked (e.g. certain dusters) are also regarded as made up. (2) Produced in the finished state, ready for use (or merely needing separation by cutting dividing threads) without sewing or other working. Goods of this kind include products knitted or crocheted directly to shape and certain dusters, towels, table cloths, scarf squares, blankets etc., with threads alongwith the warp left unwoven or the weft edges cut to form a finger. Such articles may have been woven separately on the loom, but may also have been simply cut from lengths of fabric which have bands of unwoven threads (generally warp threads) at regular intervals. These lengths of fabric, from which readymade articles of the types described above may be obtained by simply cutting the dividing threads, are also considered as "mad up" articles." (Emphasis added). In view of the foregoing, contention of Mr. Farooq H. Naek, D.A.G., is that "table covers", by any stretch of reasoning, cannot fall within the concept of "fabric" (meaning manufactured cloth) and have to be dealt with as articles. Ancillary argument is that "table covers" do not qualify even as "garments' because, in the first place, they are not such and secondly, even the extended meanings in the notifications do not stipulate to "include" the same. Mr. Ahmed H. Shah, the learned counsel for the petitioners, on his part, does not agree that "table covers" do not implicitly figure in the applicable phraseology of the notifications viz. "woven or knitted fabrics of man-made yarn which are either dyed or printed." Alternatively, the learned counsel contends that if "table covers" do not fall within the above reproduced item, such would be covered under other sub-headings namely, "woven or knitted ready made garments including socks, pullovers, gloves, vests, loongis, handkerchiefs, bedwears, pillow covers, cushion covers", cariying different duty drawbacks depending upon being "dyed or printed" or not so. He elaborates his last contention by urging that the word "including" under quote is merely illustrative and not exhaustive, to be interpreted accordingly. The learned D.A.G. may be right when he contends that "table covers" should not be construed to be included in the concept of "fabric" because such may not be "manufactured cloth" simpliciter. This throws up the alternative pleaded by the petitioners namely, that the article should be deemed to be included in the category of "garments". The word "garment", in turn, is defined in the same dictionaiy, as above, to mean, "any article of clothing" whereas, "clothing" signifies "clothes, garments: covering". This too may involve "covering" for living or other beings. However, within the notifications an expanded use seems to have been identified. Thus included amongst garments are "handkerchiefs, bedwears, pillow covers and cushion covers", which Stricto Sensu may not be garments at all and yet the concept of garments is shown to have been enlarged to embrace the same, giving rise to the question as to why "table cloths" fitting similar connotations may not be equally be covered. The learned counsel for the petitioners, in support, has pointed out that per letter, dated 26.2.1991, the Second Secretary to the Board directed the Collectorate to note that in the applicable notification "cushion covers should be deemed to be covered under the heading pillow covers ....... ". This would imply that through mere process of interpretation an item which Ex Facie may not have been included was deemed to be included amongst "garments" and no amending notification was found requisite, signifying that the notifications were to be liberally construed. Next, it has been argued that in the cognate notification "table covers" manufactured from cotton have been allowed the facility of Export rebate. It, therefore', may not be sound logic to exclude a similar item manifestly produced form imported polyester, cotton, as it is being an indigenous product. Similarly, we note that if mere "manufactured doth" is found eligible to duty drawback, it may hardly be reasonable to exclude a manufactured product from the same cloth. For all the aforesaid reasons, we are constrained to conclude that the said notifications are calculated to expand and encourage exports and have to be liberally construed in the larger public interest, an aspect which does not seem to have merited consideration at the departmental level. Indeed, the department has hardly cared to pass any orders as such in the matter. In such circumstances, learned counsel agree that the matter can be referred back to the Deputy Collector (Exports) Customs for him to reexamine the whole issue and apply the law in consonance with timehonoured principles. The petitions are allowed in terms as above, but with no order as to costs. (K.A.B.) Petitions allowed.

PLJ 1996 Karachi 781 PLJ 1996 Karachi 781 [Original Civil Jurisdiction] Present: syed deedar hussain shah, J. MUHAMMAD ASHRAF-Plaintiff versus ABDUL MAJID-Defendant Civil Suit No. 237 of 1994, plaint accepted and application dismissed on 2.2.1995. Civil Procedure Code, 1908 (Act V of 1908)- —S. 151 read with s. 42 of Partnership Act, 1932 (DC of 1932)—Dissolution of partnership-Case of-Inervenor-Status of~Application moved by intervenor appears to be prima facie on unholly alliance in between intervenor and defendant, so that unnecessary handicaps and hurdles be created in suit filed by plaintiff-Provisions of s. 151 CPC in any case are not applicable, neither application u/s 151 CPC is necessary for ends of justice nor there is any material so as to prevent abuse of process of Gout-Application is afterthought, misconceived and merits no consideration-Application dismissed. [P. 786] A B & C Mr. KB. Bhutto, Advocate, Plaintiff. Mr. Muhammad Athar Saecd, for Defendant. Mr. Khalid Athar, for Applicant. Date of hearing: 2.2.1995. order The plaintiff Muhammad Ashraf has filed Civil Suit No. 237 of 1994 against defendant Abdul Majid. The brief and relevant facts of the suit are as under:- "1. That the plaintiff and the defendant entered into a Partnership Agreement/Deed dated 21.10.1991 at Karachi. Under the said Partnership Deed the parties agreed to carry on partnership business under the name and style of M/s. Hoisiery Knit Wear International," at D-156 (Chowdhry Compound, Opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi. The salient and relevant features of the said partnership agreement are as unden- (i) The business of the partnership firm shall be knitting of fabric and other allied items, initially. (iv) Dispute or differnece, if any, arising between the partners in respect of the partnership business or interpretation of the terms of the Partnership Deed, will be referred to arbitrator and- the award of such arbitrator shall be final and binding upon the partner. "2. That the defendant failed to provide his half share towards the said capital of the partnership firm and pursuaded the plaintiff to arrange the entire capital of the partnership firm with promise that the defendant would bring in his said share afterwards. As such the plaintiff had to contribute the said entire capital for the partnership firm and the required two knitting machines were purchased out of such funds of the plaintiff. Subsequently the defendant also usurped the total control of the partnership business to the exclusion of the plaintiff. Eventually the defendant started misappropriating and misusing the incomes and profits of the partnership firm and also grabbed the control of the properties/assets particularly the said two knitting machines so installed at the said premises of the partnership firm." The plaintiff prays that this Court may be pleased to direct the defendant to file Arbitration Agreement in this Court and thereafter may further be pleased to refer various disputes so having arisen between the parties with respect to running of partnership business, its affairs, rendition of partnership account for arbitration and thereafter eventually dissolution of partnership firm according to the terms of Partnership Deed dated 21.10.1991. 2. The defendant was served who filed the written statement dated 17.5.1994 through his advocate Mr. Muhammad Akhtar Saeed. On 25.4.1994 on hearing of C.M.A. No. 1887 of 1994 this Court vide it order dated 25.4.1994 passed the following order:- "Interim injunction has been granted earlier but no counter affidavit has been filed and none is present to oppose the application. As such the application is granted and defendant is restrained as prayed in the application." 3. On hearing of C.M.A. 1888 of 1994 and Nazir references dated 20.4.1994 and 2.5.1994 the Court passed the following order:- "No counter affidavit has been field to this application and, as stated above, none is present to oppose the application. The application is granted and the Official Assignee is appointed Receiver with direction to take over the aforesaid premises/business concern, prepare an inventory of all the machineries and articles lying inside the premises and seal the premises and appoint one Chowkidar. The fee of the Receiver will be determined later. For the time being, the plaintiff will deposit with the Official Assignee/Receiver for compliance of the order." "3. The two references of the Nazir may be taken on record for future reference." 4. In compliance of the Court orders, the Official Assignee took over the possession of the premises/firm Hoisiery Knit Wear International, at D-156 (Chowdhry Compound, Opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi. The firm was locked and sealed and one Chowkidar was appointed to look after the same. 5. Mr. Khalid Athar learned counsel for the applicant has moved this application, with the above mentioned background giving the facts therein as follows:- "1. That the applicant is the tenant of one Mr. Naseem Ahmed son of Late Choudhry Iqbal, Muslim, adult, resident of D 156, S.I.T.E. Karachi, who let out his shed No. 12-D-156, S.I.T.E., Karachi with its fixtures, fittings and with office premises on the monthly rent of Rs. 5,000/-. The tenancy agreement was duly executed on 8.7.1993 and it was for 11 months and further this agreement was extended vide agreement dated 29.5.1994 for another 11 months ending by 7.5.1995." "3. That the applicant is dealing in business of manufacturing the knitting cloths and the applicant is working for the other businessmen on the basis of contract "over-rate". The parties are supplying the thread of yarn and the applicant after knitting the cloths is supplying back to the paities the whole cloth is of an export quality." "4. That the applicant for the purpose of knitting the cloths had installed a knitting machine namely "Pailung Knitting Machine", the same was purchased from M/s. Union International (Pvt.) Ltd." . "5. That there are lying 2000 K.G. Yarn threads in 200 bags of different parties for knitting the cloths and that cloths were to be delivered within two days but some persons from the office of Official Assignee under the directions of this Honourable Court came at the site of the Shed No. 12-D-156 and without any prior notice or explanation and/or without showing any reason sealed the whole premises of the factory. The applicant is running the factory in the name of S.Y. Knitting." "6. That the factory premises belongs to Mr. Naseem Ahmed son of Late Choudhary Iqbal which is evident from the annexures "A" and "B" and the defendant Abdul Majeed the J.D. and or any other person or persons have got no concern whatsoever with the premises in question and it seems that the premises have been sealed under the wrongful impression that the factory or the premises or the land belongs to the J.D. This act of sealing has caused 25000 ' rupees daily losses and future business also be expected to be ruined." 6. The contentions of Mr. Khalid Athar learned counsel for the j applicant are that (i) Muhammad Saleem Intervenor is the tenant of Naseem Ahmed, (ii) the official assignee has wrongfully sealed the premises, (iii) ownership of Naseem Ahmed is proved through letter dated 3.5.1992 issued by S.I.T.E., (iv) Muhammad Saleem is running the factory, (v) there is no proper looked after of the property and (vi) the act of sealing the premises without notice is an illegal act, ultra vires and void 06 initio therefore it is required urgently to deseal the factory so that several employees should not be adversely effected. 7. I have heard Mr. Muhammad Athar Saeed on behalf of defendant Abdul Majid who has contended that (i) it is not known at which place the firm is working, (ii) partnership is dissolved and (iii) limited company is flouted on 9.1.1992 at Karachi vide certificate of incorporation No. K-033354. 8. Abdul Majeed defendant in his written statement vide para. 3-B has stated as under:- , "3-b. That when the plaintiff and the defendant decided that it was not possible for them to do business due to the losses which were accruing they decided to voluntarily liquidate the above company and all the papers necessary for the liquidation were prepared but unfortunately due to some reason, the liquidation process could not be initiated." 9. At the time of argument it was pointed out by Mr. Muhammad Athar Saeed that copies of annexures marked as "C" and "D" and "E" and "F" have not been filed with the written statement as shown therein. Furthermore no any document has been annexed with the written statement. 10. Mr. KB. Bhutto learned counsel for the plaintiff has contended that (i) the firm is situated at D-156 (Chowdhry Compound, opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi, (ii) plaintiff has been deprived of his business and (iii) partnership deed vide clause 18 shows "In case of differences or disputes, arising between the partners in respect of the partnership business or interpretation of any of the clause of this deed of partnership, the same will be referred to any arbitrator under the arbitration act and the award of such arbitration shall be final and binding upon all the partners. 11. Deputy Nazir was appointed to make inventory vide this Court order dated 17.4.1994 and report of the Deputy Nazir and Nazir dated 20.4.1994 was taken on record. 12. Abdul Majeed defendant filed the written statement in the Court on May 1994. No counter affidavit or objection to the Deputy Nazir's report has been filed. Facts of partnerships business are not disputed at this particular premises. Documents marked annexures "C, D, E and F" mentioned in the written statement are not filed. Thereafter advocate of the plaintiff despatched a registered letter to the defendant's advocate to supply copies of the documents but the documents have not so far been supplied. 13. I have gone through the material placed on the record and have also applied my mind. It is an admitted fact that the plaintiff and the defendant entered into a partnership agreement and agreed to carry on partnership business under the name and style of M/s. Hoisiery Knit Wear International, situated at D-156 (Chowdhry Compound, opposite Usman Textile Mills) S.I.T.E., Manghopir Road, Karachi. 14. According to para. 18 of the partnership deed in case of differences of dispute arising between the partners in respect of partnership business the parties have to refer the matter to arbitrator under the Arbitration Act and the award of such arbitration shall be final and binding upon all the partners. 15. In view of above said clause of partnership deed the plaintiff has filed this suit. It is strange to note that even though the defendant was served and at one stage one learned counsel appeared in the Court and under-took to file Valakatnama but no one appeared and contested the application. This Court vide its order dated 30.10.1994 has allowed the pplication after service of the notice moreover no any .counter affidavit was filed by the defendant in the above application. The learned counsel for th applicant has moved this application under seetkarlSl CPC. I would like to reproduce the actual roads of section 151 CPC:- "151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court." 16. As mentioned earlier this Court passed the orders confirming the ad interim injunction and appointing Official Assignee as receiver, after service of proper notice on the defendant and in the absence of any counter affidavit/objection by the defendant. It is also very pertinent to note that office has taken the written tatement of the defendant on 17.5.1994 which is also signed by the learned counsel for the defendant but the documents mentioned in the written statement are not annexed with it In the absence of any proper documents, mere denial of the defendant from the partnership deed is hardly to be accepted. « 17. The application moved by the intervenor Muhammad Naseem appears to be prima facie an unholly alliance in between the intervenor and Abdul Majeed defendant, so that unnecessary handicaps and hurdles be created in the suit filed by the plaintiff 18. In view of the facts and circumstances as discussed above the provision of section 151 CPC in any case are not applicable so far this application is concerned, neither this application is necessary for the end of justice nor there is any material so as to prevent the abuse of the process of the Court. ; 19. The application is afterthought, misconceived and merits no consideration, and is hereby dismissed. I would like that Additional Registrar (Original Side) should hold an enquiry as to how the documents marked as annexures "C" to T" with the written statement filed by the defendant Abdul Majid were not taken into possession by the office. The official responsible for this negligence should be taken to task. (B.T.) Order accordingly.

PLJ 1996 Karachi 787 [DB] PLJ 1996 Karachi 787 [DB] Present: ABDUL HAFEEZ MEMON ACJ AND nazim hussain siddiqui, J. Messrs, SAIMA ENTERPRISES, FAISALABAD--Petitioners versus DEPUTY COLLECTOR OF CUSTOMS (EXPORT), CUSTOM HOUSE, KARACHI and 4 others-Respondents C. No. D-3398/1993, dismissed on 30.11.1995. Customs Act, 1969-- —Ss. 168 and 180-Show cause notice-Issuance of~Time barred—Question of-Provisio of sub-section 2 of section 168 shows that period of two months could be extended by collector by a further period of two months- Section 168 relates about seizure of goods, while section 180 deals with show cause notice issued for purpose of confiscation of goods-Provisions • of sub-section 2 of section 168 do not control provisions of section 180, and in latter section no time limit is prescribed for issuing such notice- Section 180 requires that in case of confiscation of goods or imposition of a penalty a show cause notice as per terms of this section, be issued to owner of goods, if any~Therefore irrespective of fact that period prescribed under section 168 has expired, still custom officer under section 180 can issue notice for confiscation of goods or imposition of penalty-Words "the goods shall be returned to person from whose possession they were seized", appearing in sub-section 2 of section 168 refer to goods whose mere possession is neither prohibited nor is punishable under law-Goods like narcotics, arms, or any other article, mere possession of which is an offence under any law, is not covered by provisions of sub-section 2 of section 168. [P. 792] A Writ jurisdiction- —While exercising writ jurisdiction, disputed facts cannot be investigated. [P. 792] B Mr. Sohail Muzaffar, Advocate, for Petitioners. Mr. Farooq H. Naek, D.A.G. for Respondents. Date of hearing: 30.11.1995. order Nazim Hussain Siddiqui, J.--This Judgment will dispose of C.P. Nos. D-3398, 3399, 3400 and 3401 of 1993 in which common questions of law and facts are involved. The facts necessary for disposal of these Petitions are as follows. 2. M/s. Seven Star Enterprises CHAL No. 1266 had filed five Export Bills (1) No. 29863/92 dated 27.4.1992, Invoice No. SE-009/92 dated 14.4.1992, 63600 yards, Cotton Bleached Fabric valued Rs. 300928(2) No. 18128/92 dated 29.3.1992, Invoice No. SE-004/92 dated 26.3.1992, 110 bales = 110000 yards Cotton Bleached Fabrics valued Rs. 601416(3) No. 27815/92 dated 22.4.1992, Invoice No. SE-008/92 dated 11.4.1992, 405 bales = 405000 yards cotton grey and dyed cloth valued Rs. 1576568/- (4) No. 26260/92 dated 19.4.1992, Invoice No. SE-007/92 dated 18.4.1992 198 bales – 292000 yards cotton dyed and grey cloth valued Rs. 650647/- and (5) No. 34544/92 dated 6.6.1992, Invoice No. IL/018/92 dated 28.4.1992, 298 rolls' = 74350 yards cotton printed cloth value Rs. S77622/- on behalf of the Petitioners namely M/s. Saima Enterprises and M/s. Inyat Limited, 7th Taj Plaza, Kotwali Road, Faisalabad, for the export of blended dyed, bleached, grey and printed fabrics. Said export bills were processed by the staff of the Export Processing Section and those consignments were brought at TR-2 of M/s. Riazada Container Yard for Customs Examination and the Export thereof. These consignments were examined by a Custom Team consisting of Mr. Abdul Hafiz Principal Appraiser, Mr. Irshad Ahmad Appraiser, and Ch. Maqbool Ahmed Examining Officer Export Intelligence, Branch, Collectorate of Exports in presence of two mushirs namely, Abdul Ghani and Iftikhar Ahmad. Three samples of each consignment were drawn, and sealed. One sealed and signed sample of each consignment wa forwarded to the Customs Laboratory for test to ascertain whether fabrics were blended or made of Cotton. The test report, however, confirmed that said fabrics were made of cotton only, instead of being blended. The Custom Authorities reached the conclusion that the mischief was done by the Petitioners with the object to defraud national exchequer by availing higher rate of duty draw-back, as provided under Notifications SRO-1026(I)/90 dated 27.9.1990 as against the actual contents of the consignments covered by Notification SRO-1083(I)/90 dated 18.10.1990, having lower rates of duly drawback. 3. It is also the case of the Custom Authorities that if they would have not detected the aforesaid mischief, the Petitioners, with connivance of clearing agent M/s. Seven Star Enterprises, would have defrauded the government to the extent of Rs. 11,41,815/-. Accordingly, FIR under Section 32 read with Section 178 punishable under Clause 14 read with Clause 77 of 156(i) of the Customs Act, 1969 was registered against the Petitioners and said Clearing Agent. 4. The petitioners have claimed that they are leading Exporters of Textile products and are stationed at Faisalabad. According to them, they do ot themselves manufacture and in order to meet the export demands, buy the required textile- products as per description from open market in Faisalabad and get the same packed in the factory or in the premises of Supplier and ship them through their clearing agents to the destination. They stated that the said consignment reached K rachi Port from Faisalabad and their clearing agents filed necessary documents before the concerned authority for exporting the goods in question. They have asserted that since they had purchased the goods at Faisalabad and the same were packed by the Suppliers, as such, they had no knowledge that the goods were not of the same description for which they had paid. 5. It is also the case of the petitioners that respondent No. 2 Collector of Customs Exports, after seizing all the five consignments of the Petitioners, bifurcated the case as if they were five cases and issued a Show Cause Notice himself in respect of one consignment and the remaining four consignments were dealt with by the respondent No. 1. Deputy Collector of Customs Exports. The Petitioners exchanged correspondence with the respondents. 6. The respondent No. 1 by Order No. 1145/93 (in C.P. No. D- 3398/93 held that the exporters had intended to defraud the national exchequer, misdeclared the goods deliberately, and imposed penalty of Rs. 83,233/- under Section 156(1) Clause 14 of the Customs Act, 1969. He further imposed penalty of Rs. 25,000/-'on exporters under Section 156(1) Clause 17 of said Act. A penalty of Rs. 35,000/- was also imposed on said clearing agent. By Order No. 1146/93 (in C.P. No. D-3399 of 1933) for the same reasons the respondent No. 1 imposed penalty of Rs. 2,92,160/- upon the petitioners and also imposed further penalty of Rs. 25,000/- on said exporters. A penalty of Rs, 35,000/- was also imposed on the clearing agent. By order No. 1147/93 (in C.P. No. D-3400/1993) the respondent No. 1 for the same reasons imposed penalty of Rs. 1,63,095/ and Rs. 25.000/- on the petitioners. Also a penalty of Rs. 35,000/- was imposed on the clearing agent By Order No. 1148/93 (in C.P. No. D-3401/93) the respondent No. 1 imposed penalty of Rs. 1,94,956/- and Rs. 25,000/- on the petitioners. A penalty of Rs. 35,000/- was also imposed on the clearing agents. 1. The Appeals and Revisions against the said orders were dismissed by the Collector Appeal and Additional Secretary Central Board of Revenue. 8. In these Petitions the Petitioners have impugned all the aforesaid Orders of the Customs Authorities. 9. Mr. Sohail Muzaffar learned counsel for the Petitioners initially raised various grounds in support of these cases but ultimately confined the arguments to the plea that the show cause notices issued by the respondents were hopelessly time barred and were in violation of the mandatory provisions of Section 168 read with Section 180 of the Act, and that on this ground alone the goods of the Petitioners should have been returned to them unconditionally. Elaborating it, he submitted that the consignments were intercepted/seized on 27.4.1992 and the FIR was lodged on Jdth July, 1992 and within the prescribed period of two months of Seizure, the show cause notices were not issued to the Petitioners. Section 168 and 180 of the Act on which the learned counsel has relied upon are as follows:- Section 168: (1) The appropriate officer may seize any goods liable to confiscation under this Act, and where it is not practicable to seize any such goods, he may serve on the owner of the goods or any person holding them in his possession or charge an order that he sh ll not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (2) Where any goods are seized under sub-section (1) and no show cause notice in respect thereof is given under section 180 within two months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized:- Provided that the aforesaid period of two months may, for reasons to be recorded in writing, be extended by the Collector of Customs by a period not exceeding two months. (3) The appropriate officer may seize any documents or things which in his opinion will be useful as evidence in any proceedings under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presences of an officer of Customs. Section 180: No order under this Act shall be passed for the confiscation of any goods or for imposition of any penalty on any person, unless the owner of the goods, if any, or such person:- (a) is informed in writing (or if the person concerned consents in writing, orally) of the grounds on which it is proposed to confiscate the goods or to impose the penalty; (b) is given an opportunity of making a representation in writing (or if the person concerned indicates in writing his preference for it, orally) within such reasonable time as the appropriate officer may specify, against the proposed action; and (c) is give a reasonable opportunity of being heard personally or through a counsel or duly authorised agent. 10. Bare reading of Proviso of Sub-Section 2 of Section 168 ibid shows that the period of two months could be extended by the Collector by a further period of two months. Section 168 relates about the Seizure of the goods, while Section 180 deals with the Show Cause Notice issued for he purpose of confiscation of goods. It is to be noted that the provisions of Sub­section (2) of Section 168 do not control the provisions of Section 180, and in the latter section no time limit is prescribed for issuing such notice. Section 180 requires that in case of confiscation of goods or imposition of penalty a show cause notice, as per terms of this section, be issued to be owners of the goods, if any. Therefore, irrespective of the fact that the period prescribed under Section 168 has expired, still the Custom Officer under Section 180 can issue notice for the confiscation of goods or imposition of penalty. It is however, significant to note that the words that" the goods shall be returned to the person from whose possession they were seized", appearing in Sub­ section 2 of Section 168 refer to goods whose mere possession is neither prohibited nor is punishable under the law. The goods like narcotics, arms, or any other article, the mere possession of which is an offence under any law, is not covered by the provisions of Sub-section 2 of Section 168. 11. The respondents have claimed that necessary show cause notices were issued to the Petitioners within the stipulated period and this fact is corroborated by the Reply of the Clearing Agents to whom show cause notices were issued on the same day. Learned counsel for the petitioners, however, maintained that said show cause notices were issued on 9.12.1992. The Record, however shows that notices were received by the Clearing Agents on 2.11.1992. The respondent No. 1 in his detailed order dated 28 th February, 1993 has held that said notices were served on the clearing agents within time. Mr. Sohail Muzaffar argued that the record was manipulated by the respondents in order to cover the delay involved in this matter. There is, t however, nothing on record to substantiate this plea of the learned counsel BJfor the petitioners. In any case, while exercising writ jurisdiction, the [disputed facts cannot be investigated. 12. Learned counsel for the petitioners also argued that notice under Section 171 of the Customs Act, was also not served upon the petitioners. The record indicates that it was served upon Shabbir Ahmed on 19.7.1992, who was a Representative of the Clearing Agent There is no force in this contention also. Accordingly, we do not find any merits in these Petitions. 13. On 30.11.1995 after hearing the arguments of learned counsel for the parties, we had dismissed these petitions in limine and these are the reasons for the same. (K.K.F.) Petition dismissed.

PLJ 1996 Karachi 792 PLJ 1996 Karachi 792 Present: NAZIM HUSSAIN SIDDIQUI, J. MUHAMMAD AMIN-Appellant versus Mst. NAFEESA KHATOON-Respondent F.R.A. No. 152 of 1992, dismissed on 24.4.1996. (i) Sind Rented Premises Ordinance, 1979- —-S. 21—-Tenant-Eject of--Personal bona fide: need-Ground of~Challenge to-Once bonafide requirement is established it is for landlord to decide if proposed business could be carried out in that particular premises or not- Neither court nor tenant can suggest to landlord otherwise. [P. 797] A (ii) Sind Rented Premises Ordinance, 1979- —S. 21--Ejectment of tenant—Personal bond fide need-Ground of- Challenge to-A bonaflde requirement cannot be turned down simply on assumption of tenant that proposed business could not be carried out profitably in premises in question. [P. 797] B Mr. Shamasuddin Khalid Ahmed, Advocate, for Appellants. Mr. Rehmat Elahi, Advocate, for Respondent. Date of hearing: 19.11.1995. judgment This judgment will dispose of FRA Nos. 152 and 158 of 1992 in which common question of law and facts are involved. In both these appeals Mst. Nafessa Khatoon, who is a widow, is the respondent. She is the owner of the building which is on plot No. HC/8 (SNCC-17) Block No. 3, Bahadurabad, Karachi. Muhammad Amin is the appellant in FRA No. 152/1992 (Rent Case No. 1006/1989). He is the tenant in Shop No. 1 of said building. Muhammad Hammed alias Abdul Hameed is the appellant in FRA No. 158 of 1992 (Rent Case No. 1005/1989) and is the tenant in Shop No. 2 of said building. Monthly rent of Shop Nos. 1 and 2 is Rs. 225/- and 175/- respectively. Respondent Mst. Nafessa Khatoon on 20.11.1989 had filed above mentioned rent applications against the appellants, before the learned Rent Controller for their eviction from said shops on the grounds of default in payment of rent and personal bonaflde use. She had purchased said properly by way of registered sale-deed dated 11.7.1988 and informed the appellants through notices about the change of ownership, as per Section 18 of the Sindh Rented Premises Ordinance, 1979, hereinafter referred to as the Ordinance, and asked them to pay her rent in respect of these shops accordingly. These notices were served upon the appellants on 7.8.1989. Said building has an area of only 72 Sq. Yds. It is ground plus one storey building, having shops in question on the ground floor and the residential flat on its first floor. It is alleged that the appellants had paid her rent for the months of August, September and October, 1988 and stopped payment of rent from November, 1988. She has claimed that she requires both the shops one for herself for running boutique therein and the other for her son Mansoor Elahi for starting the business of General Merchandise. The appellants in their respective written statement have denied the assertions of the respondent and maintained that neither they have committed default in payment of rent nor the respondent requires said shops in good faith for herself and for her son. It is their case that they had regularly deposited the rent in Misc. Rent Case Nos. 391 and 392 of 1989 in the name of previous owner namely, Pervez Akhtar. In FRA No. 152 of 1992 the respondent filed her affidavit-inevidence and that of her son Mansoor Elahi and they were cross examined. Appellant Muhammad Amin filed his affidavit-in-evidence and was cross examined. In FRA No. 158/1,992 the respondent and appellant Abdul Hameed had filed their affidavit-in-evidence and were cross examined. On assessment of the evidence learned Rent Controller, in both the cases, decided that the appellants had committed default in payment of rent and that the respondent requires the shops in question for her use and for her son. Consequently, by two separate order dated 27.1.1992, the learned Rent Controller allowed the eviction applications and directed the appellants to hand over vacant passession of said shops to the respondent within 60 days from the date of the said orders, which have been impugned in these appeals. On 20th February, 1990 the respondent in these two cases fflerf the applications under Section 16(1) of the Ordinance for directing the appellants to deposit monthly rent in the Court at the rate mentioned earlier. While disposing these applications, Rent Controller in his order dated 19.3.1990 observed that the tenancy and the rate of rents were admitted. The appellants were directed to pay monthly rent before the 10th of each Calander month and the arrears within a month from the date of said order. The appellants on 19.4.1990 deposited rent in the name of the respondent. During the course of argument learned counsel for the respondent did not say anything about this order, which means that it was complied with by the appellants. Mr. Shamsuddin Khalid Ahmed learned counsel for the appellants contended that the finding of the learned Rent Controller on the point of default is incorrect and skips over the circumstances which on analysis prove otherwise. The contention is sound and must prevail. Admittedly, notice under Section 18 of the Ordinance was sent to the appellants after about 13 • months of purchasing the property. According to the respondent, the appellants had paid rent to her for August, September, and October 1988. There is however, no reliable evidence in support of this contention and learned Rent Controller rightly disbelieved this plea of the respondent. Even otherwise, above assertion by itself is out side the frame of the case of the respondent. Admittedly, she had first time sent notices about the change of ownership and demand of rent to the appellants on 7.8.1989 and it being so there was no question of paying rent to the respondent prior to said date. Although the respondent has also alleged about payment of rent of three months viz. August, September and October, 1988 by the appellants in time in her notices dated 7.8.1989, but the same was denied by the appellants in their reply dated 24th August, 1989. In any case, the burden of proof of this payment was upon the respondent, which she had failed to discharge. Learned Rent Controller, however, found the appellants defaulter on the ground that first time they deposited rent in Court on 9.4.1990 and according to Section 18 of the Ordinance they were required to pay the same within 30 days after having such intimation from the respondent. Learned Rent Controller on this point relied upon the case ofMst. Muhammad Nisa vs. Anwar Ali 1989 CLC 157, where the tenant had full knowledge of sale of premises and still continued to deposit rent in Court in the name of previous landlord even after notice of ejectment application was served on him. It was held that such mistake could not be termed as "technical default." Further, it was observed that intention of the tenant, under the circumstances, was not bonafide in depositing rent in the name of previous landlord. The facts of this case are distinguishable. In the instant case, the respondents plea that even prior to sending intimation regarding change of ownership to the appellants, they had paid rent to the respondent was found incorrect and it created doubt about the correctness of the ground of default. It is significant to notice that the respondent in her cross examination stated that she did not know if the appellants were depositing rent in Court since August, 1988 in Misc. Applications Nos. 391/1989 and 392/1989. During the course of arguments also, it was not disputed that the appellants had deposited rent in Court through the Misc. Applications referred to above since August, 1988. Had the appellants paid rent for the months of August, September and October, 1988 to other respondent, they would not have deposited the rent of these months again through the Misc. Applications referred to above. The respondent in Application dated 20.2.1990 had prayed for directing the appellants to deposit rent from 1.11.1988 and the appellants had deposited rent in Court upto the month of June, 1990. They have complied the order dated 19.3.1990. Under the circumstances, no default was committed by them. Accordingly, the finding of learned Rent Controller on this point is reversed. Learned counsel for the appellants next argued that the plea of the respondent that she requires the shops in question in good faith for her own use and that of her son is malafide. He submitted that neither the respondent nor her son requires the shops for their personal use. The respondent, in her affidavit-in-evidence, stated that she is a widow and has no source of income. She also stated that the property in question is situated in the residential area of Bahadurabad. She maintained that she has got sufficient experience of stiching and intends to run the business of boutique in said shop. Further, she stated that her elder son is married and is not supporting her. Appellant Muhammad Hameed stated that the respondent does not require the shop in question for her use nor it is suitable for boutique, as it is surrounded by shops of Mechanics, Carpenter, Dainters, Painters and other shops of similar nature. The respondent in respect of her son Mansoor Ellahi mentioned that he is without any job and the shop is required for him for running the business of General Merchandise. Mansoo Ellahi, in his affidavit-in-evidence asserted that he wants the shop for said purpose and he belongs to a business community and all his relatives have avowed to help him in establishing his business. Learned counsel for the appellants argued that the son of the respondent is engaged in the business of Leather Craft and has two shops one in Panorama Centre and the other in Taj Mahal Hotel. This allegation has been refuted by the respondent. She, however, stated that her elder son has just started business at Panorama Centre. Mansoor Ellahi has denied that he was doing the business under the name and style "LOOK and LOOK" at Taj Mahal Hotel. Admittedly, the appellants have no documentary evidence to show that respondent or her son Mansoor Ellahi is the owner of ny shop at Panorama Centre or Taj Mahal Hotel and the oral evidence to this effect is not worth relying. The expression "requires the premises in good faith" is not capable of being confined to precise, indentical, and invariable definition, nor any hard and fast rule can be propounded as to encompass all possible eventualities which may arise due to particular facts and circumstances of the cases. Therefore, the Parameter of each case would be primarily its facts, which ave to be taken into consideration for deciding the point if the landlord requires the premises in good faith or not. When both the parties have taken contrary pleas i.e. landlord alleges good faith and the tenant calls it malafide, the proper course would be to examine all the facts relating to the contrary allegations. The main objection of the appellants is that both the shops are not suitable for the business, the respondent wants to start therein. The respondent and her son belong to the Business Community. They have to do something to earn their livelihood. It appears that the only object of the respondent and her son in seeking eviction of the appellants is that they, in all fairness, want to start their own business. Once the bonaflde requirement is established it is for landlord to decide if the proposed business could be carried out in that particular premises are not. Neither Court nor the tenant can suggest to the landlord otherwise. Bonaflde requirement is seen with reference to the need of a person to do any business. The respondent and her son are citizen of Pakistan, as such it is their inalienable, valuable and basic right to conduct any lawful trade or business, subject to any qualification as may be prescribed by law. Presently, they want to engage themselves in the business indicated above. At any time if they want to change their business they can do so, as it is there fundamental right to conduct any lawful trade or business. A bonaflde requirement cannot be turned down simply on the assumption of the tenant that the proposed business could not be carried out profitable in the premises in question. Accordingly, I hold that both the shops are required by the respondent for her bonaflde use and that of her son. This issue is decided in favour of the respondent. Learned counsel for the appellants also argued that these two appeals be remanded to the Rent Controller for deciding afresh as that they had moved the applications for Site Inspection, but the learned Rent Controller dismissed those applications without any justification. Learned Rent Controller while rejecting those applications by order dated 16.11.1991 had observed that no cogent reasons was shown in support of the prayer made in the applications. I think on the point of personal requirement the evidence of respondent and that the appellants was sufficient and there was no need for Site Inspection. In consequence, both the appeals are dismissed with no order as to costs. The appellants are, however, granted four months time for handing over vacant possession of the shops in question to the respondent. (K.A.B.) Appeal dismissed.

PLJ 1996 Karachi 798 (DB) PLJ 1996 Karachi 798 (DB) Present: ABDUL majib KHANZADA AND syed deedar hussain shah, J J. REGIONAL COMMISSION OF INCOME TAX, KARACHI and 2 others-Applicants Versus SHAFI MUHAMMAD BALOCH-Respondent R.A. No. 153 of 96 accepted on 7.7.1996 Civil Procedure Code, 1908 (Act V of 1908)-- —O. 39 R. 1 & 2~Date of Birth-Determination of~Question of—Contention that correct date of birth according to Service Book maintained by Applicants is 9.1.1938 but through graduation list published by Applicant in 1991, Respondent came to know that his date of birth was mentioned in same as 9.1.1936~Since two different dates of birth of respondent borne out of record maintained by applicants, as such in deciding application under Order 39 Rule 1 & 2 CPC it cannot be determined as to which of two dates is correct, for which evidence is needed—Hence Trial Court well as appellate court were justified in passing impugned orders (Status quo) in peculiar circumstances of case-Revision application dismissed. [Pp. 799 & 800] A & B Mr. Nasrullah Awan, Advocate for Petitioner Mr. Muhammad Farogh Naseem, Advocate for Respondent Date of hearing: 12.6.1996. judgment Abdul Majid Khanzada, J.-This Civil Revision Application is directed against the order dated 19.3.1996 passed by learned District Judge, Karachi (South) in Misc. Civil Appeal No. 2 of 1996 dismissing the appeal field against the order dated 10.1.1996 passed by II Senior Civil Judge, Karachi (South) directing the defendants/petitioners to maintain status-quo on application under Order 39 Rule 1 & 2 CPC filed in Suit No. 1364 of 1995. 2. Briefly stated the facts which lead to this Revision are that the respondent/plaintiff filed a suit against the petitioners/defendants named above for declaration and permanent injunction, stating therein that the plaintiff who is an employee of the defendant No. 2 was appointed as Inspector of Income Tax on 30.9.1967 and through promotions he reached to his present designation as Deputy Commissioner of Income Tax. He stated that his correct date of birth according to his Service Book maintained by the defendants is 9.1.1938, but through gradation list published by the defendant No. 2 for the first time in the year 1991, he came to know that his date of birth was mentioned in the same as 9.1.1936. He entered into correspondence with the defendants through the defendant No. 1 and by producing his School Leaving Certificate, Birth Certificate, issued by Municipal Committee, Residence Certificate issued by the Chairman, Union Council and other documents made representations that his correct date of birth is 9.1.1938 and not 9.1.1936. Since he apprehended that on the basis of his incorrect date of birth i.e. 9.1.1936 he may be retired from service at the age of 60 years w.e.f. 9.1.1996 hence he filed the above suit and also made an application under Order 39 Rule 1 & 2 CPC, to which the defendant No. 1 filed his counter affidavit in denial of the claim of the plaintiff. He also stated that the Controller of Examination, University of Sindh has confirmed that the actual date of birth of the plaintiff is 9.1.1936. The learned II Senior Civil Judge, Karachi (South) after hearing both the parties advocates passed the order dated 10.1.1996 directing the defendants/petitioners to maintain the status-quo which was existing on the day when the present suit was instituted, till the final disposal of the suit. Being aggrieved by the said order, the defendants/petitioners preferred appeal bearing M.C.A. No. 2 of 1996 before the District Judge, Karachi (Sought) which also resulted in dismissal on 19.3.1996, against which the present Revision Application is filed in this Court, with a prayer that the Orders passed by both the Court below be setaside. 3. It shall not be out of way to mention, here that before the matter was fixed forKatacha Peshi,, on 26.5.1996 the respondent with his statement dated 21.5.1996 alongwith copy of Office Memorandum dated 22.4.1996 from Finance Division, Government of Pakistan addressed to Central Board of Revenue, in which the C.B.R. was directed to accept the plea of respondent regarding date of his birth without further litigation, in reply to C.B.R. 's letter dated 18.3.1996. For the first time the above matter was fixed for Katcha Peshi on 26.5.1996, when the learned advocate of the applicant Mr. Nasrullah Awan requested for time to verify the contents of the said Office Memorandum and with consent of Mr. Muhammad Naseem Advocate for respondent, the matter was adjourned to 30.5.1996. On 30.5.1996 the learned advocate for the applicant filed reply to the statement dated 21.5.1996 with a copy of Office Memorandum dated 23.5.1996 from central Board of revenue addressed to the Finance Division, Government of Pakistan,, upon which the matter was adjourned to 12.66.1996. 4. On 12.6.1996 I have heard Mr. Nasrullah Awan who also produced a copy of letter dated 9.6.1996 from Central Board of Revenue addressed to the applicant No. 1.1 have also heard Mr. Muhammad Farogh Naseem who also produced a copy of letter dated 9.6.1996 from Finance Division to the Central Board of Revenue and the extracts from Rules of Business, 1973. | 5. Mr. Nasrullah Awan argued that the actual dated of birth of the ^ respondent is 9.1.1936 and not 9.1.1938, which fact is also confirmed by th Controller of Examination, University of Sindh. He contended that the respondent stands retired on 8.1.1996 on becoming 60 years of age and both the learned lower Courts have wrongly passed the impugned orders. He also argued that the Civil Court has no jurisdiction into the matter. In support of his contentions he relief upon 1993 MLD 2158, Federation of Pakistan versus Dr. Nasir Mehmood Khan. To a question theat 9.1.1938 is mentioned in the Service Book of the respondent which is maintained by the applicants, he said that it was wrongly mentioned and it is a mistake. One thing is clear that is Service Book of the respondent his date of birth is mentioned as 9.1.1938 while the University certified to be 9.1.1936, which needed a ~~" detailed quiry, and that can be achieved when the suit shall proceed, and each party shall have equal chance to prove its stand. 6. Mr. Muhammad Farogh contended that as per Rules of Business the advise of he Finance Department is binding on the Central Board of Revenue who is in clear terms advised to accept the age of the respondent as 9.1.1938. 7. I have applied my mind to the valuable arguments of the learned Advocates and have also gone through the impugned Orders passed by the learned II Senior Civil Judge, Karachi (South) and the District Judge, arachi (Sought) and I have no option but to agree with their reasonings in reaching to the conclusions in the matter. In 1993 MLD 2158, the Notification of the retirement was challenged but in the instant case it is not so. 8. Since two different dates of birth of the respondent borne out of the record maintained by the applicants, as such in deciding application under Order 39 Rule 1 & 2 CPC it can not be determined as to which of the two dates is correct, for which evidence is needed, hence the trial Court as well as appellate Court were justified in passing the impugned orders in the peculiar circumstances of the case. 9. Under the above circumstances, I find no merit in the above Revision Application, as such it is dismissed in limine, with no order as to costs. (K.K.F.) Revision Petition dismissed.

PLJ 1996 Karachi 801 PLJ 1996 Karachi 801 Present: RASHEED A. RAZVI, J KHAYABAN-E-IQBL (Pvt.) LTD. etc.-Plaintiffs versus MUSTAFA HAJI MUHAMMAD -Defendant Suit No. 368 of 1995, decided on 13.11.1995. (i) Agreement to sell-- —It is now well settled that an agreement to sell does not create any right, title or interest in immovable property. [P. 808] B ref. PLD 1966 Lahore 953 and AIR 1930 Allahabad 1. (ii) Agreement to sell- —Oral agreement to sell-Status of-Suit for specific performance, declaration and injunction-Case of-Cheque of Rs. one million issued by purchaser was never encashed by purchaser which prima facie supports contention of owner that agreement was never finalized or concluded-- Purchaser was also not able to show that remaining two directors consented to alleged sale-There is no mention of bank liability in entire sale transaction—Held: Oral agreement, as alleged by purchaser, was never concluded and, therefore, has no binding force. [P. 813] H AIR 1986 Delhi 336, AIR 1951 SC 184, AIR 1987 Dehli 4,1985 CLC 342, 1995 MLD 123 ref. (iii) Civil Procedure Code, 1908 (Act V of 1908)-- —O.X--Rule 2-Oral examination of Party-Question of—Purchaser has not specifically stated in his application as what are material questions upon which examination of defendant is required which is necessary for purpose of ascertaining real matter in controversy-Neither he has pointed out any specific contradictions and ambiguity in affidavits of estate agent and in affidavit of owner-Held: If such applications are granted, this will amount to holding of mini trial within a full-fledged trial-Application dismissed. [P. 807] A AIR 1931 P.O. 175 ref. (iv) Civil Procedure Code, 1908 (Act V of 1908)-- —O.XIX Rule 2-For the purpose of calling a deponent for crossexamination 1 , applicant must show what is the ambiguity in the affidavit and what is the clarity which applicant wants to bring on record through such examination. [P. 809] E (v) Civil Procedure Code, 1908 (Act V of 1908)-- —-O.XXXVII Rule 7--Oral agreement to sell--Interlocutory injunction-Grant of-Application for-In application under Order 37 Rule 7, CPC, a plaintiff has to show some thing more than aprima facie case, irreparable loss and balance of convenience-Held: Purchaser of property was not able to establish a strong case for relief which he has prayed-Application dismissed. [Pp. 808 & 809] C & D (vi) Contract- —It is now well established that contract can be in writing as well as oral and that oral agreement is also enforceable as a written agreement provided it fulfils all requirements of a valid contract. [P. 810] F 1993 SCMR 183 ref. (vii) Specific Performance- —No doubt, burden upon plaintiff for obtaining interim injunction in a suit for specific performance is not as onerous as obtaining a decree but plaintiff is required to prima facie show that agreement upon which he is basing his claim for specific performance is a lawful contract and has a binding force in law. [P. 811] G Mr. Khalid M. Ishaque, Advocate for Plaintiffs, a/w Mr. Neel Keshav, Advocata M/s Abdul Hafeez Pirzada and Ismail Kassim, Advocates, for Defendant. Dates of hearing: 13,14,18 Sept. 95 and 8th & 13th Nov. 1995. order This order will dispose of several applications filed in Suit No. 368/95 as well as in Suit No. 426/95 as the law involved and the facts are similar and pertain to the same immovable property. Plaintiff No. 1 in Suit No. 368/95 is a private limited company while plaintiffs No. 2 and 3 are its directors. The defendant in the said suit is the person who is claiming to have purchased the plot bearing No. G. 20, Block-9, K.D.A. Scheme No. 5, Clifton, Karachi measuring 6533 square yards, hereinafter referred to as the plot in question. The plaintiffs in Suit No. 368/95 are also defendants No. 1 to 3 respectively in Suit No. 426/95 filed by the defendant of Suit No. 368/95. It would be convenient if the plaintiffs in suit No. 368/95 and defendants No. 1 to 3 in Suit No. 426/95 are called "the Owners". Likewise, the defendant in Suit No. 368/95 who is also the plaintiff in the suit No. 426/95 is called as "the Purchaser". Suit No. 368/95: 2. The brief facts of Suit No. 368/95 are that the suit property belongs to the plaintiff No. 1 while the other two plaintiffs are its directors. hat one Liaquat Abdullah who is an estate agent by profession (defendant No. 4 in Suit No. 426/95) was instructed by the plaintiffs to bring offers at certain suggested rates for some plot in which the plaintiffs were interested. That the said estate agent introduced the purchaser who was interested in buying the plot in question from the owners. It is the case of the plaintiffs that the defendant approached the plaintiffs for the sale of plot in question which did not reach beyond the stage of negotiations. That the plaintiffs received three legal notices dated 13.5.1995 from the learned Counsel for the defendant alleging that an oral agreement containing many terms and conditions were reached between the parties for the sale of the plot in question and that a cheque of Rupees one million had been handed over to the plaintiffs which fact the plaintiffs have denied in their plaint. That on 16.5.1995 public notices .were published in daily Dawn, Karachi and daily Jang, Karachi which, as averred in the plaint, are unlawful and vicious attempt on the part of the defendant to harm the plaintiffs and their project. In view of these circumstances, the plaintiffs have filed suit for permanent injunction seeking perpetual injunction against the defendant, his agent, servants, employees restraining them from advertising/publishing in any manner false claim for the sale/transfer of the plot in question and from interfering with the right of the plaintiff No. 1 as its lawful and exclusive owner. The plaintiffs have also filed application for seeking interim injunction in the same term which is CMA No. 3004/95. 3. The defendant/purchaser has denied the allegations of the owner/plaintiff that the plot in question was never sold to the purchaser. It is vehemently pleaded by the defendant/purchaser in his counter affidavit that the deal for the sale of plot in question was concluded and the sale price was fixed at Rs. 38,000/- per square yard with the two options, i.e. down payment of 40% of the purchase price in cash and 30% in 4^ months and emaining 30% in the nine months' time with the bank guarantee for the payment of 60% balance sale consideration, secondly, a down payment of 50% in cash, 25% in six months and the remaining 25% in nine months ith the bank guarantee for the payment of balance sale consideration for the period mentioned earlier. The defendant/purchaser has also alleged that the plaintiffs/owners agreed for the transfer of the entire share­ holding/equity of the company. The defendant has also pleaded that on 19th April, 1995 he has issued a cheque for Rupees one million in favour of the plaintiff No. 1. 4. It is pertinent to note that the United Bank Limited (defendant No. 5 in Suit No. 426/95) issued a public notice in daily Dawn, Karachi dated 2.6. 1995 claiming therein that the property in suit is mortgaged with them as security by the owners/plaintiffs against certain arrangements with the Bank. In this public notice, it was clearly stated by the Bank that it would not be bound or be adversely effected in its right by any agreements, deal, contracts and transactions between the owners and the purchaser. None of the parties have disputed the fact that the suit property if mortgaged with the United Bank Limited. Suit No. 426/95: 5. The plaintiff in this suit is the defendant in Suit No. 368/95 to whom I am referring as the purchaser. He has filed this suit for declaration, injunction and specific performance and in the alternate for damages for Rs. 15,84,02,500.00. The purchaser has prayed for grant of declaration that the terms and conditions held in meeting dated 19.4.1995 are binding on the owners and that they are not entitled to withdraw the same. He has also prayed for a decree of specific performance of the oral agreement dated 19.4.1995 for the plot in question, for compensation and for mandatory injunction against the owners for delivery of the title documents as well as for conveying the property in question to the purchaser. In the alternate, the plaintiff/purchaser has prayed for damages also. His case in this suit is same as his defence in the above suit. He has stated in his plaint that out of the two options as stated herein above he accepted the first and met the owners alongwith the defendant No. 4, namely, Liaquat Abdullah who is disclosed as an estate agent in Suit No. 368/95. It has not been denied by either party that the defendant No. 4 is an estate agent by profession and was instrumental in arranging meeting of the plaintiff/purchaser with the defendants No. 2 and 3/owners on 19.4.1995. In this suit, United Bank imited, Jubilee Insurance House, I.I. Chundrigar Road, Karachi is impleaded as defendant No. 5. This defendant had denied that the public notice as it appeared in the daily Dawn is a result of collusion between the owners and the Bank. In their written statement, the UBL/defendant No. 5 has specifically pleaded that in the month of April, 1994 the property in question was mortgaged with the Bank by delivering all original title deeds through a memorandum which they have filed as Annexure-D/1 with their written statement which was registered under section 127 of the Companies Ordinance, 1984 with the Registrar of Companies. Annexure-D/2 filed with the written statement of UBL supports this fact. 6. The most significant aspect which requires consideration is alleged in the counter affidavit filed by the defendant No. 4, namely, Liaquat Abdullah, the estate agent. The defendant No. 4 has stated that he was called by the defendants No. 2 and 3/owners in early 1995 and expressed their desire to sell the plot in question. That the plaintiff/purchaser showed his interest to buy the property in question under the instructions of the owner. The defendant No. 4 conveyed the two terms as mentioned herein before. That on 19.4.1995 a meeting was held between the plaintiff of this suit (purchaser) and defen ants No. 2 and 3/owners and in the words of defendant this meeting was held "to finally settle the terms and conditions for the sale of the suit plot". He has supported purchaser to the extent that the first option was agreed upon between the parties. He has also supported the purchase to the extent that in his presence cheques of Rupees on million was delivered to the owners. The estate agent in paras 6 and 7 of his counter affidavit not only denied the contents of the paras 6 & 7 of the purchaser's affidavit but improved the version of the purchaser by stating that the purchaser wanted to show the full consideration in agreement whereas the owner wanted to execute an agreement for sale of shares of the companies at the face value with a nominal premium which was not accepted by the purchaser. In para-7, he has admitted that in the meeting of 19.4.1995 it was not disclosed to the purchaser that the share-holding of the company would be transferred at face value with nominal premium. 7. The owners/defendants No. 1, 2 and 3 in this suit have vehemently denied the case of the purchaser. They have prayed for dismissal of the suit. Their case is that the purchaser never visited their office on 19.4.1995 alongwith the estate agent. They have denied holding of any deliberations or negotiations. They have also denied acceptance of any cheque or consideration from the purchaser. It is their case that the defendants No. 1 and 2 being only two directors were not in a position to sell the property of the company without seeking approval/consent of the other remaining directors. That they were not in a position to sell the property in suit as they had already booked/sold some 13 apartments to other persons and that the property being mortgaged was not liable to be sold without approval of the Bank. 8. I have heard Mr. Khalid M. Ishaque for the owners, Mr. Abdul Hafeez Pirzada, Advocate for the purchaser. It is contended by Mr. Khalid M. Ishaque that there is no concluded and binding agreement between the owner and the purchaser and therefore, the acts of the purchaser to claim their ownership in the property in suit is illegal, unauthorised as well as mala fide. According to the learned Counsel, it is vicious attempt on the part of the purchaser to harm the plaintiffs and their project. He has heavily relied upon the counter affidavit of the estate agent in support of his contention that the alleged negotiations held on 19th April, 1995 in no manner amount to a concluded and binding agreement. That the element of promise is absolutely absent in the case of the purchaser. He has relied upon the following reported cases:- 1. Col. D.I. Mac Pherson v. M.N. Appanna and another (AIR 1951 SC 184). 2. Shaukat All v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 3 others (1995 MLD 123). 3. Ch. Muhammad Hussain and another v. Hidayat Ali and 6 others (NLE 1981 SCJ 460) 4. Abdul Razak Adamjee and another v. Director General, Karachi Development Authority (1995 MLD 803). 5. Liqram v. Agar Das (AIR 1967 Himachal Pradesh 29). 6. Zafar Ahmad v. Mst. Hajran Bibi (PLD 1986 Lahore 399). 7. M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others (PLD 1966 Lahore 953). 8. Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others (1989 SCMR 949). 9. ShajarAli Hoti v. Esmail Sobhani (1985 CLC 342). 10. M/s. Saral Trading Co. and others v. M/s Mahesh Steel Traders, New Delhi (AIR 1987 Delhi 4). 11. M/s. Urmila Trading & Co. Put. Ltd. v. M/s. J. M. Baxi & Co. (AIR 1986 Delhi 336) 12. Balquees Zaman Khan and others v. Tahir Mahmood But (1991 CLC 1507) and 13. Abdul Wahid and 5 others v. Noor Muhammad and 7 others (PLD 1993 Lahore 552). 9. Mr. Abdul Hafiz Pirzada, learned Counsel for the purchaser has strenuously argued that since there was a legal and duly concluded oral agreement between the parties as such the purchaser is entitled for the injunction as prayed as well as for the specific performance of the said contract. That the purchaser has successfully proved all the three ingredients for the grant of interim injunction. He has relied upon the following cases:- 1. Fawwad & Fareen Enterprise Ltd. v. Director of Industries, Government of Sindh, Karachi and others (PLD 1983 Karachi 340). 2. Abdus Sceed Khan and 2 others v. Basharat Ali and 13 others (PLD 1995 Lahore 255). 3. Ali Muhammad Khan v. Riazuddin Khera (PLD 1981 Karachi 170) 4. Bashir Ahmad v. Muhammad Yousaf (1993 SCMR 183). 5. Haji Ayub v. Mst. Bachai and another (PLD 1983 Quetta 114). 6. Ata Ullah Malik v. The Custodian Evacuee Property, West Pakistan, Karachi and others (PLD 1964 SC 236). 7. The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585). 10. Now I propose to deal with the several interlocutory applications filed in both these suits. However, I will deal with the injunction applications at a subsequent stage of this order. CMA No. 3787/95 In suit No. 426/95: 11. This is an application under Order X Rule 2 CPC filed by the purchaser/plaintiff in Suit No. 426/95 praying that he may be allowed to examine the Defendant No. 4 who is an estate agent relating to the matter in controversy as it is in the interest of justice It is alleged by the purchaser in his supporting affidavit that this estate agent is the permanent agent and authorised representative of the owners and that in past he was dealing on their behalf for the sale and purchase of several other immovable properties. Mr. Pirzada has argued that the owners have not denied the Defendant No. 4 to be their estate agent and that since the contents of the counter affidavit filed by the Defendant No. 2, on the face of it, is false and inconsistent as such he may be allowed to cross-examine the defendant No. 4 for the purpose of establishing the truth of the matter and ascertaining the real controversy involved in this case. He has relied upon the case of Haji Ayub v. mst. Bachai and another (PLD 1983 Quetta 114). 12. Mr. Khalid M. Ishaque has vehemently opposed this application. It is argued that Rule 2 to Order X CPC will attract at the stage of first hearing or at any subsequent hearing and not at the stage of hearing of interlocutory applications. He has contended that this application has been filed by the purchaser to harass the owners and to drag the case unnecessary for an indefinite period. He has relied upon the case of Liqram v. Agar Das (AIR 1967 Himachal Pradesh 29). 13. Order X Rule 2 CPC empowers a Court at the stage of hearing or at any subsequent stage to orally examine any party appearing in person or present in Court or any person able to answer any material question relating to the suit and it further empowers that a Court may put him questions during such examination. However, the High Court while exercising its original civil jurisdiction is not required to reduce in writing the substance of the examination as provided in Rule 3 to Order X CPC (See Order XLIX Rule 3 (2) CPC). The purchaser has not specifically stated in his application as what are the material questions upon which the examination of defendant No. 4 is required which is necessary for the purpose of ascertaining the real matter in controversy. Neither the applicant/purchaser has pointed out any specific contradictions and ambiguity in the affidavits of the estate agent and in the affidavit of owner which may entitle him for grant of this application. In my view if such applications are granted this will mount to holding of mini trial within a full-fledged trial. In the case of Haji Ayub u. Mst. Bachai, a learned single Judge of the Baluchistan High Court observed that the Court can examine the parties under Order X CPC if the pleadings of the parties are wanting any clarity and for the purpose of getting the cases of parties properly on record. In the instant case, the applicant was not able to bring his case within the rule laid down in the case of Haji Ayub. In the case of Manmohan Das and others v. Mt. Ramdei and another (AIR 1931 P.C. 175), it was held by the privy Council that the Court should not hold mini trial. It was held as follows:- "... But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in 0.18 ...." In the circumstances, CMA No. 3787/95 is dismissed. CMA No. 3386/95 in Suit No. 426/95: 14. This application under Order XXXVII Rule 7 CPC has again been filed by the purchaser with the prayer that Nazir of this Court be allowed to enter upon the office premises of the defendant and to take ossession, custody and control from the Defendants No. 2 and 3 all receipt books, allotment orders, application forms, booking/accounts registers, payin-slips and all other documents pertaining to the booking of the apartments in the project and to retain the same with such Officer of this Court as to be appointed. The reason given for such relief as stated in the affidavit, is that the owners have turned dishonest and totally refused to honour the terms of contract for the property in question and that the owner may with the purpose of delaying the claim of the purchaser may create further charge. All these allegations have been denied by the owners through their counter affidavit. 15. Through this application, the plaintiff in Suit No. 426/95 is seeking dispossession of the company and its directors from their offices and is also seeking appointment of an Officer of this Court to take into possession all the documents of the company on the basis of an oral agreement for the sale of an immovable property. It is now well settled that an agreement to sell does not create any right, title or interest in the immovable property (For reference, see M. Ghulam Muhammad v. Custodian of Evacuee Property, Lahore and others PLD 1966 Lahore 953). In the case of DIP Narain Singh u. Nageshar Prasad and others (AIR 1930 Allahabad 1), a Full Bench of the Allahabrd High Court held that a mere undertaking to mortgage or to sell an immovable property would not amount to actual transfer of any interest in the property. It was further held that a deed of sale or mortgage, if duly registered, would operate as a conveyance of such interest. In a recent case of Sh. Manzoor Ahmad and others v. Mst. Iqbal Begum and others (1989 SCMR 949), it was held by the Hon'ble Supreme Court "that a contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties but it does not, of itself create any interest in or charge on such property." In view of this settled law, I am of the considered opinion that the applicant/purchaser has no right, title or interest in the business of the Defendants No. 1 to 3 and, therefore, the buyer is not entitled in law for the interim relief as prayed in this application. 16. To grant an interlocutory injunction in a manner as prayed in this application under Order XXXVII Rule 7 CPC, I am of the view that th plaintiff has to show something than a prima facie case, irreparable loss and balance of convenience since this provision directly comes into conflict with the Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 which provides freedom to eveiy citizen to enter upon any lawful profession or occupation and to conduct any lawful trade or business. Article 24(1) protects all persons' right of property. In the instant case, the purchaser was not able to establish a strong case for the relief which he has prayed. For the reasons which I propose to discuss while deciding injunction applications, I dismiss this application. CMA No. 3386/95 stands disposed of. CMA No. 3480/95 in Suit No. 426/95: 17. This is an application filed by the owner nder Order XXXIX Rule 4 CPC to set aside, discharge or vary the ad interim injunction passed against them by this Court in the above suit on 13.6.1995. I propose to deal this application alongwith the two other injunction applications. CMA No. 3543/95 in Suit No. 426/95: 18. This application -has been filed by the purchaser under Order XIX Rule 2 CPC seeking order to cross-examine the Defendant No. 2 upon the contents of this counter affidavit. The reason given is that the counter affidavit is false, inconsistence and that it is necessary for the purpose of establishing truth. Mr. Abdul Hafeez Pirzada has relied upon the case of Ata Ullah Malik v. The Custodian Evacuee Property and others (PLD 1964 SC 236) as well as on the case of The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585). In the case of Ata Ullah Malik, it was observed by the Hon'ble Supreme Court that every person against whom an affidavit is produced is entitled in the absence of special circumstances to have the deponent put in the witness box and to cross-examine him. The facts of the reported case is quite distinguishable with the facts of the present case. For the purpose of calling a deponent for cross-examination, the applicant must show what is the ambiguity in the affidavit and what is the clarity which the applicant wants to bring on record through such cross-examination. The rule laid down by the Hon'ble Supreme Court in the case of The President v. Mr. Justice Shaukat Ali is not attracted in the circumstances of the present case as it deals with the Rule 1 to Order XIX CPC and secondly the facts are quite differen of the reported case in comparison to the instant case. I have held earlier that it is neither proper nor justified in absence of any special circumstances to hold mini trial within a full-fledged trial. In the circumstances, CMA No. 3543/95 is dismissed. C.M.A. No. 3004/95 in Suit No. 368/95, C.MA. No. 3385/95 & C.M.A. No. 3480/95 in Suit No. 426/95: 19. Plaintiffs/owners have filed application under Order XXXIX Rules 1 & 2 CPC in Suit No. 368/95 praying that the defendant, his servants, agents, employees be restrained from advertising, publishing in any manner the claim for the sale/transfer of the property in question (CMA No. 3004/95). The plaintiff/purchaser in Suit No. 426/95 has also filed application seeking temporary injunction against the owners, their agents, attorneys, employees from selling, transferring, leasing, mortgaging and disposing of in any manner the property in question or transferring, approving, recording and registering any transfer of the shares of the company parting with the possession or creating any third party right till the disposal of this suit (CMA No. 3385/95). On 13.6.1995 this Court in Suit No. 426/95 passed ad interim injunction restraining the owners from booking further flats against which the owners have filed an application under Order XXXIX Rule 4 CPC (CMA No. 3480/95). 20. Mr. Abdul Hafeez Pirzada has argued that to obtain an interim injunction in a suit for specific performance the plaintiff is only required to show a prima facie case. He has referred the case of Muhammad Matin v. Mrs. Dino Manekji Chinoy and others (PLD 1983 Karachi 387). In this reported case, a learned Division Bench of this Court has held that all that the plaintiff needs to obtain an interim injunction in a suit for specific performance is to establish that there is & prima facie existence of a right and threatened infringement, and, once he succeeds in showing this, he could obtain an injunction. It was further held that the burden on the plaintiff seeking such relief is not as onerous as the burden would be for succeeding in obtaining a decree for the specific performance. The word "prima facie" was also defined in this reported case as in a case where substantial or serious question of law or fact arises the requirement of having & prima facie case would be satisfied. In reply to this plea, Mr. Khalid Ishaque has argued that since the purchaser is claiming a right on the basis of an oral agreement, therefore, he is bound to establish prima facie a strong case in support of the alleged oral agreement. He has further argued that the incident narrated in the plaint and in the counter affidavit of the purchaser does not even prima facie show that the alleged oral agreement was a concluded and a binding contract. Both the learned Counsel have cited several cases in support of their respective contentions. 21. It is now well established that the contract can be in wilting as well as oral and that the oral agreement is also enforceable as a written agreement provided it fulfils all the requirements of a valid contract. (See the ase of Bashir Ahmad v. Muhammad YousaflQQS SCMR 183). It is also well settled that an oral agreement requires for its proof clearest and most satisfactory evidence. (See the case of All Muhammad Khan v. Riazuddin Khera PLD 1981 Karachi 170.) The question of sufficiency and insufficiency of proof of an oral contract came up for consideration before the Hon'ble Supreme Court in the case of Ch. Muhammad Hussain and another v. idayat Ali and 6 others (NLR 1981 SCJ 460) wherein it was held that the subject matter of the controversy, the conduct of the parties, nature of relationship and experience of the parties are all relevant facts for determining the credibility of oral evidence on such matter. Following is the relevant portion of the said reported case:- "11. As regards the oral evidence and its effect and credibility, the learned counsel is not correct in insisting that oral evidence should be tested for its own worth and should not be related to the contemporaneous human conduct of affairs concerning matters in issue. Voluminous oral evidence may have little weight where documents are ordinarily required to be prepared or are usually prepared and no satisfactory explanation for departure from the practice is forthcoming. Courts were correct in assuming that in case of agricultural land and transactions spread over a long period and involving huge amounts there should have been some evidence in the nature of writing receipt or acknowledgment to evidence the transactions. In giving effect to such a standard the Courts were not laying down the absolute rule that there could be no oral contract or that an oral contract wherever existing could be upset on such conjectural grounds or that oral evidence carries no weight. The conduct of the parties, the subject-matter of the controversy, the nature of the relationship and experiences of the parties and their handling of the matter, all are relevant for determining the credibility of oral evidence on such matters "(Underlining is mine). 22. Mr. A H. Pirzada has strenuously argued that it would not be proper at this stage to decide the existence or legality of the oral agreement as it will amount to deciding the entire case of the purchaser. In support of his contention, he has relied upon the case of Marghub Siddiqi v. Hamid Ahamd Khan and 2 others (1974 SCMR 519). In this reported case, it was observed by the Hon'ble Supreme Court while dismissing the petition for special leave that the trial Court had exceeded its jurisdiction by deciding the question of the validity of the resolution involved in the case. In the instant case, the purchaser is seeking specific performance of an oral agreement which has been vehemently denied by the owners. No doubt, the burden upon the plaintiff for obtaining interim injunction in a suit for specific performance is not as onerous as obtaining a decree but still the plaintiff is required toprima facie show that the agreement upon which he is basing his claim for specific performance is a lawful contract and has a binding force in law. This question came up before this Court in the case of Pakistan Paper Agency and another v. Karachi Municipal Corporation (Suit No. 491/76) wherein a learned single Judge of this Court, Mr. Mamoon Kazi, J. (as his lordship then was) considered the question of legality and validity of a contract and held as follows:- "... Needless to say that the first and the foremost requirement for granting of an interim injunction to a party is establishment of a prima facie case by it. Now, even if it is accepted that some understanding had been reached by the parties for allotment of the land in favour of the plaintiff No. but as already pointed out, there is nothing to show that the plaintiffs have been enjoying the possession of the disputed property by virtue of such understanding. Infact, there is no controversy on the point that the plaintiff No. 1 was originally given possession of the property as a tenant. Since the factum of the alleged symbolical possession of the plaintiff No. 1 is yet to be established and such oral assertion of the plaintiffs has been denied by the defendant in its counter-affidavit the same cannot be accepted untill evidence in support thereof is led by the plaintiff. Contrary to that, the case of the defendant, as pointed out above, is that the plaintiff No. 1, who was only a tenant of the defendant, has been a continuous defaulter since 1952. Consequently, neither a prima facie case has been established by the plaintiffs nor an interim injunction can be issued in favour of a person who is a continuous defaulter. The plaintiffs have failed to produce a single receipt showing payment of rent by them, when prima facie the plaintiff had been inducted into the property as a tenant. 7. In the result, I find no justification in granting the prayer for interim injunction and C.M.A. No. 2414 is dismissed." (Underlining is mine). 23. In view of the above observation, the learned single Judge dismissed the injunction application against which the plaintiffs went into the appeal which was also dismissed by a learned Division Bench of this Court comprising of Mr. Imam Ali G. Kazi and Mr. Saleem Akhtar, JJ. (as their lordships then were) wherein it was held as follows: (See Pakistan Paper Agency and another v. KM. C. 1993 MLD 1681). "... It has, therefore, first to be seen if the plaintiff in a suit has prima facie a right or a claim that can bQ enforced through suit and that infringement of such right or a claim will lead to the consequence as aforesaid. In the present case appellant No. 1 was admittedly a tenant who did not pay rent to the Corporation on his own showing. No contract was concluded between the parties in accordance with the law applicable at the relevant time. It, therefore, clearly follows that the plaintiffs failed to establish at that stage prima facie existence of a right to be enforced through a Court of law. Besides the view taken in the cases relied on by Advocate for the respondent, we are fortified by the judgment reported in PLD 1970 SC 139 Shahzad Muhammad Umar Beg v. Sultan Mahmood Khan and another." (Underlining is mine). 24. In view of the rule as quoted hereinabove, I have considered case of all the parties. It is an admitted position that the cheque of Rupees one million issued by the purchaser was never encashed by the purchaser which prima fade supports the contention of Mr. Khalid M. Ishaque that the agreement was never finalized or concluded and that it never crossed beyond the stage of negotiations. The purchaser was also not able to show that the remaining two directors who are not before this Court in either of these suits have consented to alleged sale. There is no detail about the transfer of the shares of the company. On the contrary, the estate agent has stated in his counter affidavit which has not been denied by the purchaser that the price of the shares of the company was not finally determined between the parties. It is also pertinent to note that there is no mention of bank liability in the entire sale transaction. All these factors lead to a tentative conclusion that the oral agreement, as alleged by the purchaser, was never concluded and therefore, has no binding force. I am fortified in my view by the cases reported as M/s. Urmila & Co. Pvt. Ltd. v. M/s. J. M. Baxi & Co. (AIR 1986 Dehli 336), Col. D.I. Mack Pherson v. M.N. Appanna and another (AIR 1951 SC 184), M/s. Saral Trading Co. and others v. M/s. Mahesh Steel Traders, New Delhi (AIR 1987 Delhi 4), ShajarAli Hoti v. Esmail Sobhani (1985 CLC 342) and the case of Shaukat Alt v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and three others (1995 MLD 123). 25. In the case of Shajar All Hoti (1985 CLC 342), a learned single Judge of this Court, Mr. Saeeduzzaman Siddiqui, J. (as his lordship then was), dismissed plaintiffs suit for specific performance on the ground, inter alia that the receipt produced as Exhibit 5/1 did not amount to concluded agreement. The learned Judge followed the rule laid down by a Division Bench of this Court in the case of Custodian of Enemy Property v. Hushang M. Dastur (PLD 1977 Karachi 377) and held that since Exhibit 5/1 did not contain sale consideration, time for completion of sale, payment of balance sale consideration, delivery of possession of the property and since there was a serious dispute between the parties about the sale consideration of the property, the said Exhibit was not considered to be a concluded agreement 26. The upshot of the above discussion of facts and law is that the owner's application bearing CMA No. 3004/95 in Suit No. 368/95 as well as owner's another application under Order XXXIX Rule 4 CPC bearing CMA No. 3480/95 in Suit No. 426/95 are granted while the purchaser's application for interim injunction bearing CMA No. 3385/95 filed in Suit No. 426/95 is dismissed. (MYFK) Orders accordingly.

PLJ 1996 Karachi 814 PLJ 1996 Karachi 814 Present: rasheed A. razvi, J. FAROUQ INAYAT etc.--Plaintiffs versus Hqji ABDUL SATTAR etc.— Defendants Suit No. 245 of 1995, dismissed on (date not mentioned). (i) Civil Procedure Code, 1908 (Act V of 1908)-- —S. 151 read with Order VII rule 11 and O.XXXIX rules 1, 2 and 4 and S. 10 & 14 of Evacuee Trust Property (Management and Disposal) Act 1975, and Limitation Act, 1908 Art. 91 and 120-Suit for declaration and injunction-Allotment of Evacuee Property-Cancellation of~Challenge to-Whether time limit will not run against a void order-Question of-An order which is termed as a void order can create consequences, therefore, there cannot be a hard and fast rule to say that void order must always be struck down-Writ may be refused against a void order, if this would enable petitioner to circumvent provisions of statute of limitation—Held: Plaintiffs remained silent for 17 years which had resulted in creation of a valid right in favour of Defendants-This is a gross negligence on the part of plaintiffs and could not be permitted to circumvent period of limitation. [P. 820] B 1991 SCMR 2324 ref. (ii) Limitation Act 1908-- —Limitation Act, 1908 read with Evacuee Property and Displaced Persons Laws (Repealed) Act, 1975-Whether Settlement Authorities ceased to exist after repeal of settlement laws-Question of~Perusal of impugned order shows that no fresh order was passed by Settlement Authorities-­ Entire plaint is silent on the point as to why plaintiffs have not challenged impugned order prior to 1995-Held: There is no legal defect in impugned order-Suit was filed after a lapse of 17 years, hence, appears to be patently barred by Limitation Act-Appeal dismissed. [P. 823] C & D 1993 SCMR 21 ref. (iii) Void order- —"Void order is a kind of an illegal order which does not exist in eyes of law." [P. 820] A 1978 SCMR 367 ref. Mr. MuzaffarAli Khan, Advocate, for Plaintiffs. Mr. Khalilur Rehman, Advocate for Defendants No. 1 to 6. Mr. M. G. Dastgir, Advocate, for Defendants No. 7 & 8. Date of heaving: ??? order The plaintiffs are legal heirs of Shaikh Inayatullah and Muhammad Yousuf Barlas who were non-claimant displaced persons migrated from India. The plaintiffs have filed this suit for declaration, perpetual injunction and cancellation of PTO No. 07182 dated 9th January, 1961 and PTD 0088/A/DSC dated 28.6.1963 as well as for damages. The injunction application filed by the plaintiffs under Order XXXIX Rules 1 & 2 CPC (CMA No. 2246/95) was granted. Now the defendants No. 1 to 6 have filed application under section 151 CPC (CMA No. 3875/95) with the prayers that the order of this Court dated 6.8.1995 be stayed. These defendants have also filed another application under Order XXXIX Rule 4 CPC (CMA No. 3876/95) for vacation of the order of interim injunction. Besides, they have also filed an application under Order VII Rule 11 CPC (CMA No. 3782/95) with the prayers that the plaint be rejected on the grounds inter alia, that it is barred by limitation and by sections 10 and 14 of the Evacuee Trust Properties (Management and Disposal) Act, 1975. Through this common order, I intend to dispose of all the above said three applications filed on behalf of Defendants No. 1 to 6. 2. The case of the plaintiffs, as stated in the planit, is that the immovable property bearing No. S.R. 5/9 Corner Chambers, 181, I.I. Chundrigar Road, Serai Quarters, Karachi measuring 1043 square yards Marwari Dharam Sala) was initially leased out in the year 1862 by the then Government of India to one Mohatta Family for 99 years (hereinafter referred to as the said property). 3. That on 1st February, 1950 a learned single Judge of erstwhile Chief Court of Sindh, Mr. G. V, Constantine, J. (as he then was) granted permission to Shivrattan G. Mohatta and four others who were all trustees under section 92 CPC to sell or exchange the said property. This decree confined to the rights of the trustees and the rights of custody of evacuee property were kept intact. It is claimed in the plaint that since the predecessors-in-interest of the plaintiffs deceased Inayatullah and Muhammad Yousuf were in possession of the entire suit property as such they jointly applied to the Rehabilitation Commissioner/Collector for the allotment of the same which was accordingly allowed to the predecessors-ininterest of the plaintiffs by the Collector of Karachi vide order dated 27.12.1948. That the suit property was old and was in dilapidated condition as such the then Karachi Municipal Corporation declared it to be a dangerous and ordered for its demolition. That in the month of June, 1950 the then K.M.C. authorised the deceased allottees to reconstruct the building on their own costs which was accordingly re-constructed at the approved cost of Rs. 1,25,935/-. That Ministry of Refugee and Rehabilitation vide its order dated 27th March, 1958 recommended that the suit property be sold to the deceased allottees as a substitute for creation of charge. That after coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 the transfer of the suit property was duly approved and accepted by the Custodian Evacuee Property and notice of transfer was issued to the deceased allottees. That the entire transfer price of Rs. 1,37,468/- assessed by the Settlement Authorities were adjusted out of compensation books in the name of Abdul Rehman and Muhammad Sharif. In view of this alleged back ground, it is claimed by the plaintiffs that PTO bearing No. 13867 dated 21.8.1962 and a permanent transfer deed PTD dated 15.2.1964 were issued by the Settlement Authorities in favour of the deceased allottees. 4. The grievance of the plaintiffs is that the original title document of the suit property were in possession of the deceased allottees who died in the years 1970 and 1977. That the plaintiffs for the purpose of disposing of the property amongst the heirs searched for the original PTD which could not be found in papers and, therefore, on 14.12.1978 they applied to the Settlement Authorities for issuance of duplicate. It is the further case of the plaintiffs that the Deputy Settlement Commissioner, Karachi instead of issuing a duplicate copy of the PTD illegally proceeded and cancelled the PTD issued in the year 1964 in the name of deceased allottees. The plaintiffs have filed copy of the order of Deputy Settlement Commissioner dated 29.7.1979 as Annexure-P/20. Following is the relevant portion of the said orden- "The transfer file of the property, the Compensation Book from which the transfer price is said to have been adjusted and its form 'A' files could not be traced. The C.S.C. IV, V and 'F' registers were, therefore, checked. An entiy is found recorded in the C.S.C. 'F' but the references of C.S.C. IV & V recorded therein do not tally with the entries in the other registers. Interestingly enough, the applicants have also expressed their ignorance of the fact whether or not P.T.D. was issued. In view of these facts I am of the view that the entry in respect of P.T.D. made in the C.S.C. 'F' is a spurious entiy liable to be cancelled. Here no copy of the said P.T.D. could be issued to the applicants and the case be referred to the Settlement Commissioner for cancellation of the said entiy in the C.S.C.'F'." 5. The plaintiffs have averred in the plaint that the order of Deputy Settlement Commissioner was sent for approval to the Settlement Commissioner Sindh and, therefore, they were deprived of challenging the validity of the final order. However, this order of the Deputy Settlement Commissioner as reproduced hereinabove was not challenged by the plaintiffs before any other forum. 6. In the year 1984 the Defendant No. 9, namely, Deputy Administrator, Evacuee Trust Properly, Karachi directed the tenants of the suit property not to pay the rents to the plaintiffs. The plaintiffs filed a revision on 9.6.1984 before the Chairman, Evacuee Trust Property Board, Lahore (Defendant No. 8) challenging the order of the Deputy Administrator. It is admitted by the plaintiffs that this revision application is still pending before the Defendant No. 8. That the plaintiffs have also challenged the status of the suit properly as an Evacuee Trust Property. According to the plaintiffs, it does not fall within the definition of charitable, religious, or educational trust or institution. The main grievance of the plaintiffs is disclosed in para 23 of the plaint which reads as follows:- 7. The plaintiffs have prayed for a declaration that the order of Deputy Settlement Commissioner dated 29.7.1979 and the order of Settlement Commissioner Sindh dated 20th September, 1979 are illegal, coram non judice, void ab initio. They have also prayed for cancellation of PTO and PTD issued to the Defendants No. 1 to 6. They have also claimed a sum of Rs. 1,25,935/- with interest at 6% per annvfn from January, 1995 against Defendant No. 7, namely, Deputy Secretary (RS&EP) Board of Revenue Sindh and further damages upto the tune of Rs. 10 million for pain, humiliation and sufferings undergone by the plaintiffs and for permanent injunction against the defendant from acting upon the PTD issued to the Defendants No. 1 to 6. 8. I have heard Mr. Khalil ur Rehman, Advocate for the Defendants No. 1 to 6 in support of above said three applications. Mr. M.G. Dastagir, Advocate, for defendants No. 8 and 9 has supported the case of Defendants No. 1 to 6 Mr. Muzaffar Ali Khan, Advocate for the plaintiffs has vehemently opposed arguments of both the learned Counsel. Mr. Muzaffar Ali Khan has strenuously contended that for the purpose of hearing of application under Order VII Rule 11 CPC only the contents of plaint are to be considered. He has referred to the case of Shafibeona Perveen v. M/s. Defence Officers, ousing Society Authority, Karachi (1993 CLC 2523) and the case of Hakim Saleem Ahmed and 8 others v. Government ofSind and 3 others (1982 CLC 269). There is no cavil to the legal proposition as convassed by Mr. Muzaffar All Khan. It is also a settled law that the contents of the plaint are to be •"" treated as true. For any reference, see the following cases: 1. Messrs Zor Engineering Ltd. v. State Bank of Pakistan (PLD 1980 Lahore 534). 2. Messrs Shah Noor Studios v. W.Z. Studios (1980 CLC 433). 3. Mahmud Ahmad Butt and another v. Lahore Development Authority and another (PLD 1981 Lahore 153), and 4. Messrs Agricides (Pvt.) ltd. v. Messrs Ali Agro Supply Corporation Ltd. (1988 CLC 59). In view of this legal position, I have confined to the facts narrated in the plaint. I, therefore, proceed to dispose of application under Order VII Rule 11 CPC. 9. It is contended by Mr. Khalil ur Rehman that the suit is barred under Article 91 as well as under Article 120 of the Limitation Act, 1908. According to the defendant, the plaintiffs came into knowledge of the order of cancellation in the year 1978 but have filed the suit on 30th March, 1995 after ah explained delay of more than 16 years. In this connection, Mr. Khalil ur Rehman and Mr. M.G. Dastagir have referred to para 27 of the plaint which indicates that firstly, the cause of action was accrued on 29.7.1979 —-- when PTD was cancelled by the Deputy Settlement Commissioner and thereafter on 20.9.1979 when the said order of cancellation was approved b the Settlement Commissioner Sindh. Thereafter the entire para as well as other contents of the plaint are silent on the point that what efforts were | done by the plaintiffs to challenge the said two orders of the year 1979 passed by the Settlement Authorities. It was also argued on behalf of the defendants that once a property is declared as an evacuee trust property the question of transfer can only be decided by the Chairman, Evacuee Trust Board and the jurisdiction of the Civil Court is barred. Learned Counsel for the defendants have referred to the following case laws:- 1. Evacuee Trust Property Board v. Mst. Zakia Begum and others (1992 SCMR 1313). 2. Kh. Mehtab Din v. Azad Government Through its Chief Secretary and 4 others (1993 CLC 988). 3. Deputy Commissioner, Pishin v. Abdul Salam and others (PLD 1993 Quetta 121). 4. Mst. Saleem Khatoon and another v. The Deputy Commissioner/Authorised Officer and 2 others (PLD 1994 SC160) 5. Bashir-ud-Din v. The Government of N.W.F.P. and others 1995 CLC 1394). 6. Evacuee Trust Property Board v. Muhammad Siddique alias Bandoo and others (1995 SCMR 1748). Mr. Muzaffar Ali Khan has contended that the plaint is not liable to be rejected on the grounds, inter alia, that the Civil Courts are competent to scrutinize any order passed by the Settlement Authorities. That the plaintiffs were not able to challenge the order of Settlement Commissioner, Sindh as copy of the same was not supplied to them and that it came to the knowledge of the plaintiff about present status of the defendants in the year 1995 in some other proceedings. That after repeal of the Settlement Laws vide Evacuee Property and Displaced Persons Laws (repealed) Act, 1975 the Settlement Authorities ceased to exist and they were not competent to pass the impugned order. According to the learned Counsel for the plaintiffs, the time to be calculated for filing of the suit starts from the year 1994 and not from the year 1979 and that this suit being a suit for declaration, the time provided in Article 120 of the Limitation Act will attract which provides six years. He strenuously argued that the orders passed by the Settlement Authorities in the year 1979 being void, time limit will not run against such void order. In support of his content, he has referred to the following cases:- 1. Zafar-ul-Ahsan u. The Republic of Pakistan (PLD 1960 SC 113). 2. Mst. Fazal Begum and another v. Municipal Corporation, Lahore and 5 others (1983 CLC 1643). 3. Mst. Rehamt Bibi and others v. Punnu Khan and others (1986 SCMR 962). 4. Muhammad Younus and 2 others v. Muhammad Younus Khan etc. (1981 SCMR 899). 5. Raja Hassan Akhtar and others v. Akbar Khan and others (1981 SCMR 503). 6. Evacuee Trust Property Board v. Muhammad Aeam and 2 others (1995 SCMR 520) and. 7. Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi (PLD 1965 SC 698). 10. For the purpose of determining the question of limitation, it would be proper if the question whether the orders of the year 1979 passed by the Settlement Authorities are "void" is examined first. In the case of Mst. RehmatBibi (1986 SCMR 962), the Hon'ble Supreme Court has followed the precedent laid down in the case of Allah Dino v. Faqir Muhammad and another (PLD 1969 SC 582) where it was held that no question of limitation would arise if an order is nullity and has been passed without hearing and notice to the other party whose presence is necessary. In the present case, the Deputy Settlement Commissioner, Karachi had passed order on the application filed by the plaintiffs. It is to be presumed that they were aware of these facts and the procedure of the Settlement Department that such orders are always referred to the Settlement Commissioner for approval. But despite that they kept silent for more than 16 years. The rule laid dowb in the case of Mst. Rehmat Bibi was again reiterated by the Hon'ble Supreme Court of Pakistan. In the case of Malik Khawqja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCMR1543). 11. Mr. Khalil ur Rehman, Advocate has referred to a judgment of a single Judge of Baluchistan High Court in the case of Deputy Commissioner, Pishin v. Abdul Salam and others (PLD 1993 Quetta 121) where it was held that if a void order is in the knowledge of a party who is adversely affected from such order then it is his duty to get it.set aside by filing proper proceedings. It is his legal obligation to challenge the same before the competent forum in accordance with law. The learned single Judge has followed the law enunciated in the cases of Messrs Con force Lid, v. SyedAli Shah etc. (PLD 1977 SC 599) and Sayed Sajid Mi v. Sayed Wajid All (PLD 1975 BJ 29). 12. The term "void order" is defined by the Hon'ble Supreme Cour I as a kind of an illegal order which does not exist in the eyes of law. See the jcase of S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore \and another (1978 SCMR 367). In this reported case, a Full Bench of the Supreme Court of Pakistan observed that an order which is termed as a void order can create consequences, therefore, there cannot be a hard and fast rule to say that void order must always be struck down. On the question of limitation against a void order, it was held that writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of statute of limitation. For further reference, see the case of Messrs Friend Engineering Corporation v. Government of Punjab and 4 others (1991 °- SCMR 2324). In the present case, the plaintiffs remained silent for nearly 17 years which had resulted in creation of a valid right in favour of Defendant Nos. 1 to 6. It was in the knowledge of the plaintiffs in the year 1979 that an adverse order had been passed by the Settlement Authority despite that they kept silent till the year 1995. This is a gross negligence on the part of the plaintiffs and could not be permitted to circumvent the period of limitation. 13. The plaintiffs have described the suit property in plaint as "Marwari Dharamsala" and have further claimed that it was not attached to any charitable, religious, educational trust or institution to qualify the same as an "Evacuee Trust Property". It is also admitted by the plaintiffs that in the year 1984 the Defendant No. 9, namely, Deputy Administrator, Evacuee Trust Property Board ordered stoppage of the payments of rents by one of the tenant Saifur Rehman against which the plaintiffs filed revision petition before Defendant No. 8, namely, Chairman, Evacuee Trust Property Board, Lahore which is still pending. But in Suit No. 216 of 1949 (Shiv Ratan G. ohatta and others v. Shankarlal B. Sharma) the suit property has been defined as Dharamsala established for ,the benefit of Marwari Hindu Community who left Pakistan for good prior to 1950. In these circumstances, it was prayed in the said suit by the trustees that permission be granted to ell or exchange the suit property subject to the provisions of the Evacuee Trust It was notified in the Gazettes of Pakistan dated 15th July, 1963 and 9th August, 1963 that the suit property is attached with the religious trust named "Shivrattan G. Mohatta Hindu Marwari Dharamsala''. Nowhere the plaintiffs have challenged the said two notifications published in the year 1963. In my view, a presumption of correctness is attached to these Notifications published in the Gazette of Pakistan in the year 1963 (Reference is made to the Article 151 of the Qanun-e-Shahadat, 1984). It would be advantageous if the case of District Evacuee Trust Committee v. Muhammad Umar and others (1990 SCMR 25) is referred. In this reported case, the immovable property involved was situated on Phuleli Road, Hyderabad which was described as Dharamsala. It was argued by the respondents that as the said property was not attached to any trust, therefore, it cannot be declared to be evacuee trust property. It was also argued before the Hon'ble Supreme Court that in the absence of the trust deed, property could not be declared to be attached to a religious or charitable trust These contentions were repelled and it was held that since the trust deed documents were in possession of Hindu Trustees who had left Pakistan at the time of independence, therefore, the demand for production of trust deed was unwarranted. The Supreme Court attached presumption of correctness to the official record and set aside the order passed by this Court Following observations are fully relevant for disposal of instant applications:- "Now the Properties Register Card was prepared by public officials in the discharge of their official functions. Ordinarily a presumption of correctness would attach to the entries in the said Register. In the face of this record, the onus shifted to respondent No. 1 to show that the entries therein were incorrect or unreliable. To discharge his burden he produced certain P.T.Os. of adjoining properties which had been transferred to some other persons without any objection by the appellant It is to be noticed that the P.T.Os. were issued long after Independence when the trustees named in the extract were no longer available in Pakistan to contest the transfers. The P.T.Os. are at best evidence of the inaction of the appellant in not protecting evacuee trusts; they can hardly be regarded as sufficient evidence to rebut the presumption which is attached to the official record which was prepared as far back as 1932." 14. Yet in another case Divisional Evacuee Trust Property Committee, Hyderbad v. Deputy Commissioner and another (1989 SCMR 1610), the property involved was described as Dharamsala. The property was situated at Rishi Ghaat at Hyderabad and was declared to be an evacuee trust property. A learned single Judge of this Court held that mere entry in the city survey record was not sufficient to establish the character of a property as a trust without there being evidence as to where the said Mandar was situated. It was observed by a Full Bench of Supreme Court that since the property in question was clearly shown in the official record maintained by the City Survey Department to be attached to a tample, therefore, under section 135-J of the Sindh Land Revenue Code and section 52 of the West Pakistan Land Revenue Act, such entires have attached to them a presumption of correctness. It was also held that the evidence to the extent that the suit property was attached to a Mandar being unrebutted was sufficient to declare the same to be attached to a religious trust. I do not see any reason not to attach correctness to the two Notifications published in the Gazettee of Pakistan in the year 1963. This being so, it cannot be disputed that the suit property is an evacuee trust property, therefore, this suit is further barred under section 14 of the Evacuee Property and Displaced Persons Laws (Repeal) Ordinance, 1974 which ousts the jurisdiction of a Civil Court in respect of any matter covering an evacuee trust property which the Federal Government or any Officer appointed under the said Ordinance is empowered to determine. Admittedly, a matter of like nature is already pending before the Chairman, Evacuee Trust Property Board, Lahore. This creates bar on the present proceedings as envisaged in section 14 of the Ordinance, 1974. 15. The effect of repeal of law of Settlement and promulgation of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975 was considered by the Hon'ble Supreme Court in a recent case of Quetta Hindu Panchayat v. Mst. Dilshad Akhtar and 5 others (1993 SCMR 21). In this reported case, the property involved in question was declared as non-evacuee which was set aside by a Division Bench of Baluchistan High Court. Facts of this reported case'are that the respondent, Mst. Dilshad Akhtar, obtained no objection certificate from the District Council, Quetta to raise a residential colony on the land in question. Against this order, appellant Quetta Hindu Panchayat approached the then Governor/Martial Law Administrator seeking relief of cancellation of the allotment made in favour of respondent Mst. Dilshad Akhtar. This application was marked to the Member, Board of Revenue who restrained the transferee from raising construction on the property in question. Against such order, the respondent filed Constitutional Petition. It was argued by the appellant before the Hon'ble Supreme Court that the disputed property was not an evacuee property and that no order can be passed by a Settlement Authority after promulgation of Act XIV of 1975. Contentions of the appellant were not upheld by the Supreme Court of Pakistan with the following observations:- "No doubt, on the enforcement of Act XTV of 1975 Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975, all evacuee laws stood repealed but on the repeal thereof the proceedings pending before the authorities appointed thereunder stood transferred for final disposal to such officers notified by the Provincial Government etc. etc. Under section 3 of the said Act all properties, both urban and rural, including agricultural land, other than such properties attached to charitable, religious or educational trusts or institutions, whether occupied or unoccupied which may be available for disposal immediately before or after the repeal stood transferred to the Provincial Government on payment of such price as was to be fixed by the Federal Government and the procedure for its disposal provided for therein. Section 4 provides for disposal of residual work. It is clear form the reading of this statute that the Board of Revenue practically the successor of the Chief Settlement Commissioner and empowered with the disposal of pending cases as well as transfer of available property. Obviously in the exercise of its duties, it has to find out whether any particular property is available for transfer or not. Evacuee properties attached to charitable, religious or educational trust have been excluded from its jurisdiction as available property for transfer. However, in the instant case the disputed property being neither evacuee nor evacuee trust property could not be transferred by him to anybody who through his impugned order does not pass any order regarding its transfer but in view of his inquiry based on the earlier record had simply held that it is non-evacuee property and its transfer was without jurisdiction ...." 16. In the plaint, it is admitted by the plaintiffs that they are pursuing remedy before the Chairman, Evacuee Trust Property Board, it was argued by Mr. Muzaffar Ali Khan that the Settlement Authority was not competent to pass any order after promulgation of Ordinance XTV of 1975 as it ceased to exist. Perusal of the said order dated 29th July, 1979 shows that no fresh order was passed by the Settlement Authorities. They have given a finding on an application filed by the plaintiffs for obtaining certified copies of P.T.D. which was refused on the ground that there was no PTD issued in the name of predecessor of the plaintiffs. The plaintiffs have also admitted in their plaint that they do not possess originals of PTD and PTO as these ocuments were not traceable. The entire plaint is silent on the point as to why the plaintiffs have not challenged this order dated 29.7.1979 prior to the year 1995. 17. In view of the law laid down in the case of Quetta Hindu Panchayat (supra) by the Hon'ble Supreme Court, I do not see any legal defect in the order dated 29.7.1979 (Annexure-P/20 to the plaint) and thereofre, this suit which was filed after a lapse of 17 years appears to be patently barred by the Limitation Act, 1908. Therefore CMA No. 3782/filed under Order VII Rule 11 CPC is granted and the plaint is rejected. Consequently, C.M.A. Nos. 3875/95 and 3876/95 have become infructuous which are accordingly dismissed. (MYFK) Appeals dismissed.

PLJ 1996 Karachi 824 [DB] PLJ 1996 Karachi 824 [DB] Present: salauddin mieza & rana bhagwan das, J J. MOOSA KHAN-Petitioner versus GOVT. OF SINDH THROUGH SECRETARY MINISTRY OF TRANSPORT and 3 others-Respondents Constitutional Petition No. No. D-1350 of 1991, allowed on 8.8.1995. <i) Constitution of Pakistan, 1973-- —Art. 199 read with Art. 25, 4 & 18—Petitioner a transporter refused route permit although other were accommodated during imposition of ban by Minister-Whether act of respondents is discriminatory and without lawful authority-Question of--It is admitted position that even after imposition of ban on issuance of route permits fifteen route permits were issued in relaxation of policy laid down by Government-Case of Petitioner is distinguishable in a sense that he held valid route permit and, alternatively, he had prayed for transfer of his route permit to new bus purchased by him, which would not be covered by so called ban- Held; Denial is arbitrary, discriminatory, unreasonably and without lawful authority-Petition allowed. [Pp. 829 & 832] A & B (ii) Lawful Power- —Excessive use of lawful power is itself unlawful. [P. 832] B Mr. Khalid M. Ishaque, Advocate, for Petitioner. Mr. Muhammad Sidr'.ique Kharal, Addl. A.G. for Respondents. Date of hearing: 30.11.1994. judgment Rana Bhagwan Das, J.-The petitioner transporter holds a route permit for plying Mini Bus No. JE-5143 of Route No. X-20. He is aggrieved by the refusal of respondents to issue a new permit for Mazda Bus bearing Engine No. SO-1068 with chasis No. 301191 or transfer of the route permit of his existing Mini-Bus to his newly purchased Mini Bus. By the present petition he seeks a direction against the respondents to issue new route peunit for his newly purchased Mazda Bus or to allowed replacement of his old Mini Bus JE-5143 on the same route. He further seeks a declaration that the order dated 10.12.1990 passed by the Minister, Transport Department, Government of Sindh to the effect that issuance of fresh route permits to Mini Buses be banned and refusal by respondent No. 3 to issue new route permit is unlawful, arbitrary, malafide and violative of Articles 18 and 25 read with Article 4 of the Constitution. 2. It is the case of the petitioner that he is an old transporter at Karachi since 1972 and his buses are plying on various routes. He applied for replacement of his olu Mini Bus plying on Route X-20 with a new one when he was informed that respondent No. 1 had totally stopped the issuance of fresh route permits in respect of Mini Buses for all the routes in Karachi after the incident of Bushra Zaidi in 1985. He has further pleaded that after 1985 replacement system of route permits was introduced by the Provincial Government instead of issuance of new route permits which was allowed subject to fulfillment of certain requirements including payment of fees or charges. He has contended that respondent No. 3 refused to issue a new route permit or replacement of the old bus by a new bus in respect of valid route permit in view of so called order made by the Minister, Transport Department, Government of Sindh. It has been urged that refusal to issue permit is discriminatory and unconstitutional as it violates Article 18 of the Constitution because an arbitrary distinction has been made between large bodies Buses and Mini Buses which is not warranted by law. He has complained of discrimination on the part of respondents by not giving him equal treatment in issuance of route permit and permitting the replacement in as much as they have issued new route permits as well as allowed replacement He has cited the instance of issuance of new route permits to Messrs. Mehran Coach Mini Bus Service in 1991 plying from Gulshan-e- Hadeed - Pakistan Steel Mills to Dockyard. Besides various Rent a Car dealers at Karachi were allowed replacement at the sweet-will of the respondents. 3. Parawise comments were sent for from the respondents but only respondent No. 3 has submitted the same in which factual position is not denied but it is asserted that the ban was imposed on issuance of new route permits for plying new buses in the city after Bushra Zaidi incident. It is admitted that after the imposition of ban, three route permits were issued on 17.7.1986 and one permit on 13.1.1988 by the then Chairman, Regional Transport Authority, Karachi. It was further stated the replacement of Mini Buses was first stopped w.e.f. 9.12.1986 vide order passed by the then Commissioner/Chairman Regional Transport Authority, Karachi. However in the meeting of Regional Transport Authority held on 30.5.1989 it was decided that the ban imposed on replacement of old Mini Bus should be withdrawn. Consequently replacement of Mini Buses was continued upto 10.12.1990 when it was banned under the orders of the Minister for Transport, Government of Sindh while denying that Regional Transport Authority has introduced Prime Minister's Scheme or issued new route permitSMt is stated that Prime Minister's Incentive Scheme was introduced by Federal Government and issuance of route permits, registration and fitness one window scheme was introduced. Provincial Transport Authority Sindh used to issue route permits to various kinds of vehicles all over the province including Karachi. 4. We have heard learned counsel for the petitioner as well as Additional Advocate General on behalf of the respondents. Mr. Khalid M. Ishaque, learned counsel for the petitioner has raised the following contentions:- (i) That in the Scheme of Motor Vehicles Ordinance "Stage Carriage" is defined in Section 2 (37) to mean a Motor Vehicle carrying or adopted to carry more than six persons excluding the driver which carries passengers for hire or reward at separate fares paid by or for individual passengers etc (ii) That section 46 of the Ordinance authorises the Provincial Government to constitute a Provincial Transport Authority and Regional Transport Authorities to exercise and discharge the powers and functions under sub-section (6). This provision of the Ordinance authorises the Provincial Transport Authority to coordinate and regulate the activities and policies of the Regional Transport Authority but it does not empower the Minister to formulate the policy with regard to the issuance or stoppage of route permits. (iii) That Article 18 of the Constitution guarantees, freedom of trade, business and profession to every citizen of Pakistan that the right guaranteed by the Constitution cannot be taken away by any law. 6. On the other hand, learned Additional Advocate General appearing for the respondents, contended that by virtue of sub-section (3) of Section 35 of the Ordinance, Provincial Government is empowered to direct any Regional Transport Authority to restrict the issuance of fresh permits or not to grant any permit in the interest of healthy competition amongst the transporters. This right of the Provincial Government, according to the learned Additional Advocate General, is absolute and unfettered. 7. Before dealing with the contentions raised by the learned counsel for the parties, it would be appropriate to refer to the scheme of the Motor Vehicles Ordinance, 1965 (hereinafter referred as the Ordinance 1965) which regulates the law relating to motor vehicles in the province. Chapter I of the Ordinance contains preamble, short title and extent of application of the Ordinance and defines certain words used in the Ordinance. Chapter II of the Ordinance t ..?als with licencing of drivers and motor vehicles. Chapter III relates to registration of motor vehicles. Chapter IV pertains to control of transport vehicles and is relevant for the purposes of this petition. Chapter V deals with the establishment of Road Transport Corporation in the Province. Chapter VI deals with construction, equipment and maintenance of motor vehicles. Chapter VII deals with the control of traffic. Chapter VIII relates to offences, penalties and procedure. Chapter IX deals with miscellaneous matters, i.e. publication and commencement of rules, appointment of Motor Vehicles Officers and general provisions regarding appeals and schedules attached to the Ordinance. In Chapter II to VII, the Provincial Government has been empowered to make rules for the purposes of each Chapter. Under Section 69 falling in Chapter IV of the Ordinance, the Provincial Government is empowered to make rules for the purpose of this Chapter which, among other matters, relates to the period of appointment, the terms of appointment and the conduct of business by Regional and Provincial Transport Authorities, the delegation of powers by them to their respective Chairman or Members and the report to be furnished by them. 8. In exercise of the powers conferred by Sections 22, 43, 68, 69, 70, 74, 96 and 120 of the Ordinance, Governor of West Pakistan made and promulgated Motor Vehicles Rules, 1969, for the provinces forming part and parcel of Islamic Republic of Pakistan. 9. While Section 46 of the Ordinance provides that Government shall by notification in the official gazette constitute: (i) a Provincial Transport Authority to exercise and discharge throughout the Province the powers and functions specified in sub-section (6); and (ii) Regional Transport Authorities to exercise and discharge tnroughout such areas as may be specified 1n the notification in respect of each Regional Transport Authority the powers and functions by or under this Chapter on such authorities. 10. Rule 54 of the Rules deals with the terms of appointment of members of the Provincial Transport Authority and Regional Transport Authorities; Rule 55 deals with the meeting of the Provincial Transport Authority; Rule 56 relates to the meetings of the Regional Transport Authorities; and Rule 57 relates to the conduct of business of the Transport Authorities. Rule 57 empowers a Provincial or a Regional Transport Authority to make bye-laws to regulate the conduct of business to be conducted under the direction of the Chairman of the Authority. Bye-laws so made by a Provincial Transport Authority shall be subject to the approval of government and the bye-law made by a Regional Transport Authority shall be subject to the approval of the Provincial Transport Authority. Sub-rule (6) lays down that the Provincial or the Regional Transport Authority, as the case may be, may summon any applicant for a permit to appear before it and may decline to grant the permit until the applicant has so t^peared either in person or by an agent authorised by him in writing and until the applicant has furnished such information as reasonable be required by the Authority in connection with the application. 11. Rule 57-A to classification -of rules for stage carriage permits provides that the Provincial Transport Authority shall demarcate routes into "A". "B" and "C" categories for state carriage permits on the basis of density of traffic and condition of the read. Sub-rule (1) of Rule 57-B lays down that no permit shall be granted in respect of: (i) "A" category route if the stage carriage is more than four years old; and (ii) "B" category route if the state carriage is more than six years old. Sub-rule (2) lays down that a permit granted for a particular category under sub-rule (1) shall cease to be valid for that category if the stage carriage exceeds the age limit prescribed therefore. Rule 58 envisages that when a Regional Transport Authority has, in the exercise of its powers under the Oridnance, imposed limit upon the number of permits of contract carriage which may be granted for a specified route or a specified area and has already granted such number of permits of that class, the Authority^ may decline to consider further applications for such permits in respect at any such route or area. Rule 62 as amended in the province of Sindh relates to delegation of powers to Chairman, Secretary, Additional Secretary and Assistant Secretary of the Provincial or Regional Transport Authority, by general or special resolution recorded in its proceedings And subject to the restrictions, limitations and conditions herein specified. ,, 12. Perusal of the aforesaid Provisions of law on the subject would indicate that powers under the Ordinance and Rules in the matter of issuance of route permits have been conferred on a Provincial Transport Authority or Regional Transport Authorities set-up in the Province of Sindh, whereas a Minister in the Provincial Government enjoys no such authority to over-ride or supersede the powers and authority of a Regional Transport Authority, which has been created under the ordinance itself. It further seems that the Authority is required to exercise its powers and regulate the conduct of transport in ths Province in a reasonably just and fair manner rather than to act or be influenced by extraneous considerations. 13. In the present case it is admitted position that even after the imposition of ban on issuance of route permits after Bushra Zaidi incident in 1985, RTA Karachi had issued three route permits on 17.7.86 and one permit on 13.8.1988 in relaxation of the policy laid down by the Government It is evident from the comments that replacement of mini-buses was discontinued in the first instance with effect from 9.12.1986 by the Chairman Regional Transport Authority, Karachi, which was revived by virtue of a decision taken in the meeting of the Regional Transport Authority held on 30.5.1989. Replacement of Mini-buses continued upto 10.12.1990 when it was banned under the order of the Minister for Transport and not by the Regional Transport Authority itself by way of resolution adopted in the meeting of the Authority. It further appears that on introduction of Prime Minister's Scheme. Provincial Transport Authority has issued a large number of route permits to all kinds of vehicles including coaches, which are no better than mini-buses throughout the Province of Sindh including Karachi. The respondents have failed to bring on record any resolution passed by the Regional Transport Authority imposing a ban on issuance of route permits or replacement of buses except a letter comprising three lines written by the Private Secretary of the Minister to the Secretary Transport Department, Government of Sindh, to the effect that "Minister esires that eplacement of buses/mini-buses should be stopped forthwith till further orders." It may be observed here that the respondents refused to issue route permit to the petitioner or replacement of his old bus by a new one acting under the alleged directive of the Minister contained in this letter which does not lay down any criteria or a policy decision by the Government itself. In any case, it does not assign any reasons for prohibiting replacement of mini­ buses for an indefinite period. 14. No doubt, sub-section (3) of Section 45 of the Ordinance empowers the Government to direct the Provincial Transport Authority or a Regional Transport Authority not to grant or issue any permit (if already granted but not issued) or to restrict grant of fresh permits to a specified number on a route or routes or part of a route on which Road Transport Corporation is already operating motor transport or intends to do so. It may be pointed out that no policy decision of the Government restricting the issuance of route permits in exercise of this power has been placed on record or shown to exist. In any case no such decision has been shown to have been ever published in the official gazette by the learned Additional Advocate General, who frankly conceded to this position. 15. Dealing with the extent of power and authority of administrative or executive officers in the case of Tariq Transporter Company Lahore vs. Sargodha Behra Bus Service, Sargodha and another (PLD 1958 S.C. (Pak.) 437), it was held on page 462 of the report that wherein administrative or executive officer acts under a law, the High Court will control the action by an appropriate order, if he:- (a) goes out of the law, Le. exercise a jurisdiction not vested in him by law; (b) wrongly denies or omits to exercise a jurisdiction and (c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law. But the over-riding requirement in all the three cases is that the excess or denial of jurisdiction or the irregularity in the prescribed procedure should have injuriously affected some justifiable right of a party. 16. In Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others (PLD 1987 S.C. 447), after referring to the judgments in the cases of Muhammad Hussain Munir (PLD 1974 S.C. 139) and Zulfiqar Khan Awan (1974 SCMR 530), the Honourable Supreme Court of Pakistan laid down as under:- "It is not right to say that the Tribunal, which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that if should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred on it because the Tribunal has the jurisdiction to decide rightly but not the jurisdiction to decide wrongly. Accordingly, when the tribunal makes an error of law in deciding the matter before it, it goes outside its jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of the jurisdiction. 17. There is no gain saying that every citizen is entitled to be dealt with in accordance with law as enshrined in Article 4 of the Constitution. In the present case, it is obvious that the petitioner was not dealt with in accordance with law in as much as the respondents had in various cases issued route permits in favour of other individuals after the imposition of alleged ban and admittedly 15 route permits were issued in favour of Mehran Coach Service playing from Gulshan-e-Hadid - Pakistan Steel to Dockyard, whereas the petitioner was denied a route permit for replacement of his bus without assigning any reasons. By refusing to issue a route permit or allowing replacement of bus to the petitioner, the respondents wrongly denied and omitted to exercise jurisdiction in accordance with law and thereby acted discriminately, wrongly and unlawfully. Denial of petitioner's claim, guaranteed by Article 18 of the Constitution with regard to freedom of trade, business or profession, definitely and injuriously affected a valuable right conferred upon him by the Constitution. It is true that the right guaranteed under Article 18 of the Constitution is subject to reasonable restrictions and regulations, as may be prescribed by law, and in the present case the conduct of transport is regulated by the provisions of the Ordinance and the Rules framed thereunder, but the act of the respondents is neither covered nor supported by law. 18. A reference may also be made to the case of Jibendra Kishore Acharia Choudhry and 58 others vs. Province of East Pakistan and another (PLD 1957 S.C. (Pak.) 9). At page 41 of the report, their Lordships held that the very concept of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law and it is not only technically inartistic but a fraud on the citizens for the makers of a constitution to say that a right fundamental but that it may be taken away by the law. 19. On the other hand, learned Additional Advocate General relied on M/s. Abdullah & Co. and others vs. Government of Sindh and two others (KLR 1992 Civil Cases 382) and Independent Newspaper Corporation (Put.) Limited and another v. Chairman Fourth Wage Board and Implementation Tribunal and others (1993 SCMR 1533). 20. In the first case, a Division Bench of this Court held that while interpreting a provision containing a proviso, the courts should lean towards an interpretation which harmonises the proviso with the main provision so as not to nullify it but restrict its application. This decision rather goes against the respondents for sub-section (3) of Section 45 of the Ordinance cannot be read in isolation from sub-section (2) which lays down that notwithstanding anything (contained) in sub-section (1), Government may be notification under this sub-section cancel generally or in relation to a specified area nay permit or class of permit granted under this Chapter in respect of transport vehicles in order to enable the Corporation constituted under Section 70 of the Ordinance to use its transport vehicles on the routes thus rendered vacant; Provided that the Provisions of Section 22 of the West Pakistan General Clauses Act, 1956 as to previous publication shall apply to a notification under this sub­ section, and for the purposes of the said section, a notification under this sub-section shall be deemed to be a rule made under an Act. 21. Without disputing the power of Government to control road transport in relation to a specified area to enable Karachi Transport Corporation to use its transport vehicles on specified routes, there is no notification issued by the Government restricting the issuance of route permits on the route applied for by the petitioner. 22. In the Supreme Court case, it was held that where express a statutory power is conferred on & public functionary, it should not be pushed too far, for such conferment, implies a restraint in operating that power, so as to exercise it justly and reasonably. In the words of Scarman L.J., 'excessive use of lawful power is itself unlawful". Further, there is a presumption that tbe legislature does not transgress its jurisdiction and invade the fundamental rights given by the Constitution. This rule is to be kept in view also in construing and enforcing the law. 23. Adverting to the contention raised on behalf of the petitioner that the law does not make any distinction between a large bodied bus and a mini-bus because the Ordinance recognises only a "stage carriage" which has een defined to mean a bus carrying more than six persons as passengers for hire or reward. There is considerable force in the submission of the learned counsel. No doubt, it is the case of the respondent that after Bushra Zaidi incident, issuance of route permits in respect of mini-buses was banned in May 1985 with a view to bring on roads large size buses, as no restriction was imposed on issuance of route permits in respect of large bodied buses, it is obvious that this distinction was made without being supported by the provisions of the Ordinance and there is no convincing reason behind this decision. Case of the petitioner is also distinguishable in the sense that he eld a valid route permit and, alternatively, he had prayed for transfer of his route permit to a new bus purchased by him, which would not be covered by the so-called ban imposed by respondent No. 1. In our view, since the Ordinance 1965 does not envisage two categories of stage carriage, denial by the respondents in the instant case was arbitrary, discriminatory, unreasonable and without lawful authority. 24. Since the respondents failed to act within the ambit of their authority, we are left with no option but to allow this petition as prayed. In the circumstances of the case, there shall be no order as to costs. (B.T.) Petition allowed.

PLJ 1996 Karachi 833 PLJ 1996 Karachi 833 Present: agha rafiq ahmad khan, J. M/S PROGRESSIVE ASSOCIATES LTD.-Appellant versus M/S NATIONAL SHIPPING CORPORATION and another-Respondents F.R.A. No. 118 of 1991, dismissed on 22.4.1996. Sind Rented Premises Ordinance, 1979 (XVII of 1979)-- —S. 15 & 21--Tenant~Ejectment of-Default in payment of rent-Ground of- -It is well established law that it is statutory obligation of tenant to pay rent each month to landlord-Appellant failed even to prove that there was any agreement between parties to collect rent after eveiy 6 or 7 months-Burden of proving this fact lies on appellant to show that he had paid rent but same was refused by respondent-Held : Appellant had committed wilful default in payment of rent-Appeal dismissed. [P. 835]A,B&C Mr. A.R. Mirza, Advocate, for Appellant. Mr. Rehmat Ellahi, Advocate, for Respondents. Date of hearing: 22.4.1996. judgment This is first rent appeal under Section 21 of the Sind Rented Premises Ordinance, 1979, (hereinafter called the Ordinance), directed against the order dated 11.12.1990, passed by the learned Ill-Senior Civil Judge and Rent Controller, Karachi South, in Rent Case No. 2357 of 1985, whereby ejectment application filed by respondent No. 1, under Section 15 of the Ordinance was allowed and the appellant was directed to vacate the disputed premises within sixty days of the impugned order. 2. The facts giving rise to this appeal are that the respondents are owner/landlord and the appellant is tenant is respect of Room No. 803, situated in Muhammadi House, I.I. Chundrigar Road, Karachi, at a monthly rent of Rs. 498.84, payable on or before 10th of each month. The appellant is defaulter in the payment of rent and has not paid the same since March 1985, inspite of repeated demands. It is also alleged that the appellant had subletted the premises to respondent No. 2 and thereby contravened the terms of tenancy. 3. The appellant filed written statement in the Court of learned Rent Controller in which he denied the allegation and stated that the respondent used to collect the rent of the demised premises after 6 or 7 months and that the appellant used to pay rent regularly, but after March, 1985, the respondents had not issued any receipt to the appellant, therefore, he is not defaulter at all. He further contended that after March, 1985 upto the filing of the written-statement the rent has been paid but the respondents are not issuing any receipt to the appellant. The appellant also denied the allegation of sub-letting. 4. Manzoor All Samitio, Junior Executive and Rent Collector of respondent No. 1 filed affidavit-in-evidence on behalf of the landlord and Abdul Basit Mehta proprietor of appellant filed his affidavit in rebuttal. Both were cross-examined by the parties' counsel. 5. The learned Rent Controller on the basis of evidence produced by the parties and taking into consideration the arguments adduced by the learned counsel allowed the ejectment application on the ground of committing wilful default in payment of rent and passed the impugned order as stated above. 6. Mr. A.R. Mirza, learned" counsel for appellant has contended that the rent application was filed by A.A. Munshi, Secretary of the respondents, who was not competent to file the same, therefore, the very ejectment application was not maintainable. He has further stated that there is no evidentiary value to the statement of Manzoor Ali Samitio, employee of the respondents who was not authorised to give the evidence. He has further argued that it was general practice between the parties that rent was being collected after issuance of bills or several months and this practice was never discontinued and was never notified as to be done away. According to him the appellant had not committed any wilful default. 7. Mr. Rehamt Ellahi, learned counsel for respondents has contended that the appellant neither in written statement nor in affidavit-inevidence raised any plea that the rent case was filed by wrong person. No question was put regarding the maintainability or authority in the crossexamination of the respondents' witness, who is a proper person and used to collect the rent. Under Order 29, Rule 1, C.P.C. the ejectment application could have been filed by Manager of the corporation. His further contention is that burden of proof lies on the appellant to show that they had paid the rent within time and that there was a practice of receiving the rent in lumpsum for several months. 8. I have given full consideration to the arguments advanced by the learned counsel for the parties and have gone through the entire material available before me. The appellant neither in the written statement nor in the affidavit-in-evidence filed by Abdul Basit Mehta, Proprietor has raised his plea that the ejectment application was filed by incompetent person. Even no such question was put in cross-examination to the witness of the respondents. Even otherwise the ejectment application was signed by Mr. .A. Munshi, who is Secretary of the respondents company, Pakistan National Shipping Corporation (PNSC), and under order 29 Rule 1 CPC pleading could be signed and verified on behalf of the Corporation by its Secretary, therefore, there is no force in the contention of the appellant's counsel that the rent application was not maintainable. 9. Next question in this appeal would be whether the appellants have committed wilful default in payment of rent to the respondent The respondent's witness namely Manzoor Ali Sameeto, who is junior executive (State Officer) as well as rent collector has clearly stated in his affidavit that the tenancy is month to month the rent is payable on or before 10th of each English calendar month. According to him the appellant is the defaulter in payment of rent and has not paid the same since March 1985. He has clearly denied the contention of the appellant that the rent used to be collected after every 6 or 7 months. He has also stated that the appellant inspite of demands and notices failed to pay the due rent. It is well established law that it is the statutory obligation of the tenant to pay the rent of each month to the landlord. Even the appellant has failed to prove that there was no any mutual agreement between the parties to collect the rent after every 6 or 7 months. The respondents witness has produced letter dated 21.7.1984 of the appellant showing that they had sent the rent for the month of July 1984 through cheque. He has also produced several letters showing that the respondents had demanded rent from the appellant which had become due against them. The appellant's witness namely Abdul Basit Mehta in his evidence has produced the receipts as exhibits 0/4 to 0/12, and these documents proved that they used to pay rent monthly. This witness has also admitted that he had received the notices demanding the arrears of rent from respondents. Admittedly the appellant did not pay the rent from the month of March 1985 upto October 1985, Le., rent for 8 months. In view of the facts and circumstances of the c^se burden of proving this fact lies on the appellant to show that he had paid the rent from the month of March 1985, but the same was refused by the respondents. In cross-examination the appellant witness has stated that he does not know whether he has to pay the rent for the month of March 1985. He has also admitted that he could not produce any receipt showing that the respondents used to receive the rents for a period of 6 or 7 months jointly. The appellant's witness has also admitted that he did not send the rent through money order, but according to him he deposited the same in Misc. Rent Case No. 2357/85 on 18.12.1986. From the evidence on record and above discussed reasons, I have to come to this conclusion that the appellant had committed wilful default in payment of rent and the learned Rent Controller had rightly passed the ejectment order against him. This appeal has got no force which is accordingly dismissed. However, the appellant is granted 4 months time to hand over vacant possession of the premises in question to the respondent. (A.P.) Appeal dismissed.

[Original Civil Jurisdiction] [Original Civil Jurisdiction] Present: rasheed A. razvi, J. M/S NATIONAL FIBRES LTD.-Haintiff Versus KARACHI DEVELOPMENT AUTHORITY and another-Defendants Suit No. 3/95, decided on 21.8.1995. (i) Civil Procedure Code, 1908 (Act V of 1908)- —-O.VII R. 11 read with Article 131 of Karachi Development Authority Order, 1957-Suit for specific performance, declaration and injunction-­ Plaint rejected for want of notice under Article 131 of the K.D.A. order, 1957--It has not been alleged by plaintiff whether acceptance of the offer by defendant was outside its scope and authority-Held: Defendant has acted under, and in furtherance of K.D.A. Order, 1957 and Rules and Regulations framed thereunder-Therefore compliance of Article 131 was mandatory. [Pp. 838 & 839] A (ii) Civil Procedure Code, 1908 (Act V of 1908)-- —O.VII R. 11-It is inherent and mandatoiy duty of courts to examine plaint at an early stage and to see whether it is barred by any law-If no perusal of plaint, it appears that suit is barred then plaint can be rejected even in absence of any application. [P. 839] B rel: PLD 1967 Dacca 190 ; PLD 1968 Karachi 107 ; PLD 1977 Karachi 747 and 1990 CLC 197. Syed Amjad Hussain, Advocate, for Plaintiff. Mr. Dasti Muhammad Ibrahim, Advocate, for Defendant No. 1. ZafarAlam Khan, Advocate for Defendant No. 2. order The plaintiff has filed this suit for specific performance, declaration and permanent injunction in respect of immovable property being No. WH- 1, Sector 14, (Malir Band Ramp), Korangi Industrial Area, Karachi, hereinafter referred to as the plot in question. Alongwith this suit, the plaintiff has also filed an application under Order 39 rules 1 and 2 CPC (CMA No. 6570/94) seeking temporary injunction against defendant No. 2, his contractors, workmen etc. from raising any further construction on the plot in question. 2. The case of the plaintiff in brief is that it is an incorporated company and is running an industrial unit on Plot No. 13/20 Sector 22, Korangi Industrial Real, Karachi which is adjacent to the plot in question. The defendant No. 1 constructed a bridge which is also called Malir Protection Bund adjacent to the plaintiffs plot at Road 8000 Korangi. It is the case of the plaintiff that the space under the bridge and parallel to the service road were from the very beginning under the use of the plaintiffs company for the purpose of parking its trucks, trawlers and cars etc., therefore, in such circumstances, plaintiff approached defendant No. 1 with the request that the said area be allotted to the Plaintiff who has filed a copy of letter dated 9.5.1991 written by Executive Engineer, K.D.A. as Annexure-A to the plaint through which the K.D.A. disclosed its decision to convert the area available under ramp of bridge as godowns to dispose of the same to the highest bidder. Through this letter, plaintiffs were invited to make offer. Thereafter several correspondence were exchanged between the plaintiff and the defendant No. 1 and finally on 8th June, 1992 the plaintiff conveyed its acceptance and quoted price for the purchase of the land under the bridge. Thereafter the plaintiff contacted defendant No. 1 but no positive response was made. In the month of December, 1994 the plaintiff came to know that the K.D.A. has auctioned the plot in suit to the defendant No. 2 without notice to the plaintiff which compelled the plaintiff to file the above suit. The defendants have filed their respective counter affidavits and written statements denying legal character of the plaintiff as well as challenging maintainability of the suit. I have heard Mr. Syed Amjad Hussain, Advocate for the plaintiff, Mr. Dasti Muhammad Ibrahim and Mr. Zafar Alam Khan, Advocates for the defendants. According to the learned Counsel for the plaintiff, once the defendant No. 1 has accepted the offer of the plaintiff to purchase the land in question he was not competent or authorised to put the same on auction. He has further stated that the K.D.A. in connivance with defendant No. 2 has put the property on auction out of sheer ill-will and mala fides. The sector and other details of the plot in question was never disclosed in the advertisement published in daily newspaper. Mr. Dasti Muhammad Ibrahim, Advocate for defendant No. 1 has contended that the writing of letters to the plaintiff does not constitute acceptance as such there was no binding on the K.D.A. to put the plot in question to public auction. He has further pointed out that no consideration was either fixed or paid to the defendant No. 1. 3. Mr. Zafar Alam Khan, Advocate has also contended more or less same arguments. He has also invited attention of this Court to Article 131 of the K.D.A. Order 1957. According to him, the plaintiff was required to have incorporated in the body of plaint the facts about the issuance and service of the notice under Article 131 which he has miserably failed and therefore, according to the learned Counsel, the plaint is liable to be rejected. The contentions of Mr. Zafar Alam Khan, Advocate appearing for the defendant No. 2 is not without force to the extent that since the suit is defective for want of notice under Article 131 of the K.D.A. Order 1957, as such the plaint is liable to be rejected, although he has half heartedly argued this point. This question of law was not agitated by the learned Counsel appearing for the K.D.A. Mr. Zafar Alam has also urged that the injunction application is liable to be dismissed against his client in view of the fact that the defendant No. 2 is a bona fide purchaser and has acquired the right after participation in open public auction and after paying valuable consideration. 4. The consequences of con-compliance of Article 131 of K.D.A. Order 1957 were considered by this Court in several reported cases. In the case of Mst. Zainab Hajiani v. Al-Hilal Cooperative Housing Society and two others (PLD 1978 Karachi 848), the plaintiff filed a revision application before this Court whose plaint was rejected under Order VII Rule 11 CPC for non-compliance of Article 131. His first appeal was also dismissed by the Additional District Judge, Karachi. The grievance of the said plaintiff, Mst. Zainab, was that K.E.S.C. started building a sub-station on an open area adjacent to the residential house of the plaintiff which had caused blockade of the entrance to the house as well as danger to the inmates of the plaintiffs house. Plaintiff filed a suit for declaration and injunction against K.D.A. nd K.E.S.C. without complying provisions of Article 1331. A learned single Judge of this Court, Mr. Z.A. Channa, J. (as he then was), maintained the two orders of the lower Court rejecting the plaint on the ground that the suit was barred for want of notice under Article 131. 5. The case of Ms?. Zainab Hajiani was considered by this Court in the case of Karachi Development Authority v. Evacuee Trust Board and 5 others (PLD 1984 Karachi 34). It was held by Mr. Saleem Akhtar, J. (as he then was) that notice under Article 131 was not necessary in the circumstances of that case, as the situation was completely different. In this reported case, the ownership and the authority of K.D.A. was challenged and it was held that the case does not fall within the pale of Article 131. Again this Court in the case of Pakistan Railways vs. Karachi Development Authority and five others (PLD 1992 Karachi 71) held inter alia that since application of Article 131 is attached in the circumstances of the case as such the said suit was barred for want of notice under Article 131. The plaint as rejected by this Court. Recently this Court in the case of Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others (PLD 1995 Karachi 399) rejected the plaint in the suit on the grounds that the notice under Article 131 of K.D.A. Order 1957 was not served on the defendant prior to filing of the suit. Nor such fact was disclosed in the memorandum of the plaint. Following is the relevant portion of the reported case:- "It is neither stated in the plaint of the suit nor in fact any notice as required under the above Article has been delivered to defendant No. 2. The reading of the aforesaid Article shows that service or delivery of notice on defendant No. 2 is mandatoiy before the institution of the suit and in case the suit is filed without service or delivery of such notice as required under the said Article, it shall be barred under the said Article." 6. In the instant case, the plaintiff has filed a suit for specific performance, declaration and injunction. It has not been alleged by the plaintiff that acceptance of the offer by defendant No. 1 was outside the scope and authority of K.D.A. In such circumstances, defendant No. 1 has acted under and in furtherance of the K.D.A. Order 1957 and Rules and Regulations framed thereunder. Therefore, in the given circumstances, compliance of Article 131 was mandatory. Mr. Amjad Hussain has relied upon the case of K.D.A. v. Evacuee Trust Board and five others in support of his contention that the suit is not barred. I am afraid, this case is of no help to the plaintiff as facts of both the cases are quite distinguishable. In the said case, the plaintiff has challenged the ownership and authority of the K.D.A. A perusal of plaint in the suit shows that Article 131 of K.D.A. Order 1957 was not complied. 7. In such circumstances when patently the above suit is barred by Article 131, the question left for determination is that what order should be passed? Defendants have not filed any application for rejection of plaint but this does not absolve this Court to exercise its discretion under Order VII Rule 11 CPC. Time and again it has been held by this Court that it is the inherent and mandatory duty of the Courts to examine the plaint at an early stage and to see whether it is barred by any law. If on perusal of the plaint, it appears that the suit is barred then the plaint can be rejected even in absence of any application. For any reference, see the cases of Burmah Eastern Limited u. Burmah Eastern Employees' Union and others (PLD 1967 Dacca 190), Pakistan and another v. Devachand Muyimal and others (PLD 1968 Karachi 107) AH Muhammad and six others v. Secretary, Board of Revenue, Sind, Hyderabad and 9 others (PLD 1977 Karachi 747) and Trustees of the Port of Karachi v. Gujranwala Steel Industries and another (1990 CLC 197). In this last reported case, a learned Single Judge of this Court Mr. Wajihuddin Ahmed considered the question of maintainability of the suit even after dismissal of application under Order XXXVII Rule 11 CPC and rejected the plaints in all the three suits. Following is the relevant portion of the last reported case:- "... Even otherwise, question of rejection of the plaint under Order VII, Rule 11 C.P.C. has an element of priority, has to be disposed of at the earliest and can always be considered even Suo Motu, without a formal application, and, thus while in Suit No. 127/86 such an application lies struck off, on account of non-payment of costs, the matter under Order 7 Rule 11 C.P.C., can still be examined and, if a case for rejection of the plaint is made out under that provisions, adequate order scan be passed. No limitations as to stage or time are relevant in that context..." 8. For the aforesaid reasons, I hereby reject the plaint in the above suit. Consequently, CMA No. 6570/94, has become infructuous which is also dismissed. (A.P.) Orders accordingly.

PLJ 1996 Karachi 840 (DB) PLJ 1996 Karachi 840 (DB) Present : ALI MUHAMMAD BALOCH & ABDUL LATIF QURESHI, JJ. PROFESSOR, DR. SHAHANA UROOJ KAZMI--Petitioner versus VICE CHANCELLOR, KARACHI UNIVERSITY KARACHI UNIVERSITY, CAMPUS KARACHI and 3 other-Respondents Constitution Petition No. 1864 of 1995, allowed on 17.4.1996. Constitution of Pakistan, 1973-- —-Art. 199-Petitioner, professor in University-Attended workshop on Antibody Engineering in Beijing and over stayed for 5 days-Whether respondents could force appellant to produce passport for verification as to whether N.O.C. was misused by her or otherwise-Passport is document which is issued to every citizen as matter of his right to enjoy freedom of movement-Excepting under relevant rules when passport is necessaiy to be shown on entry or exit to and from a country, or unless it is required under law for investigation of crime or for any other purpose specified by any special or General Law, a citizen is entitled to keep same with him as his personal property-N.O.C. issued to petitioner was not conditional, and admittedly no conditions were attached to it by any rule of law-Petitioner had been granted Ex-Pakistan leave for 15 days over and above period of workshop-Naturally, 15 days Ex-Pakistan leave was meant for private visits of Petitioner to other cities and countries and therefore, there cannot be restriction on her to visit other country or city, as long as she was doing so while being on leave, spending her own money—Held : Respondents insistence on petitioner to hand over or produce passport is not warranted by law-Petition allowed. [Pp. 843 & 844] A, B, C & D Mr. Zia Ahmad Awan, Advocate for Petitioner. Mr. Rehanul Hassan Farooqi, Advocate for Respondents. Date of hearing : 17.4.1996. judgment Ali Muhammad Baloch, J.--This Constitution Petition arises in the circumstances that the petitioner who is a Professor of Microbiology in the University of Karachi, had attended a WORKSHOP ON ANTIBODY ENGINEERING, in Beijing China, in the year 1995. The petitioner had been selected as a participant to attend the workshop above mentioned which was being organized by International Centre for Genetic Engineering and Biotechnology Trieste, Italy. The workshop was scheduled to take place between May 7, 1995 to May 12, 1995 at the Sino Danish Biomedical Postgraduate Training Centre in Beijing, China. 2. The organisers had offered local hospitality including accommodation, living expenses and a sum of U.S. $ 400.000 towards traveling exper'-es. The petitioner requested the Registrar University of Karachi, to sanction Ex-Pakistan Leave for the duration of the workshop i.e. May 7 to May 15, 1995 and in addition she also requested for grant of 15 days earned leave from May 16 to May 30, 1995, as she had in mind to use this opportunity to carry out Flow Cytometric analysis of blood samples collected from recent Measles cases in Karachi. She also requested the Registrar to direct the relevant office to obtained N.O.C. from the Chanceller, University of Karachi for the participation of the petitioner in the above mentioned workshop and release the order of her Ex-Pakistan Leave. The petitioner had made such request to the Registrar on April, 25 1995 and the Registrar of the University after following the relevant procedure and rules issued as an Office Order on 6.5.1995, informing the petitioner that she had been allowed leave to attend the workshop on "ANTIBODY ENGINEERING" to be held in Beijing, China with permission to leave the station as under :-- 1. 9 days duty leave from 7 May, 1995 to 15 May, 1995. 2. 15 days Earned Leave (Ex-Pakistan Leave) from 16.5.1995 to 30.5.1995 on full pay. In the said Office Order the petitioner was also informed that the University of Karachi had no objection to her proceeding to Beijing China, for the above purpose. The Vice Chancellor University of Karachi, had also been informed by the Governor Sindh, who was the Chancellor of the University, that the petitioner was granted N.O.C. for participation in the said workshop on the days 7 May, 1995 to 12 May, 1995 subject to the conditions that there will be no financial liability on the part of the Government of Sindh or the University of Karachi and that the required clearance is obtained and prescribed formalities are observed for the above purpose. 3. Thus the petitioner was permitted by the Chancellor granting a N.O.C. to participate in the said workshop and the Registrar University of Karachi informed the petitioner that she had been allowed the leave as requested by her and that the University of Karachi had also no objection to her proceeding to China, for the said purpose. 4. The petitioner proceeded to Beijing, participated in the workshop, enjoyed her Ex-Pakistan Leave and she returned to Pakistan and assumed her duties in the University on June, 5th 1995. Thus she joined the duties after a period of 5 days after expiry of Ex-Pakistan Leave. For these 5 days of absence she explained on inquiry from the University of Karachi that she had been veiy sick due to strain and was suffering from influenza virus when she arrived in Karachi and was not able to attend duties and therefore, she requested for grant of sick leave for those 4-5 days of absence as per University rules. It appears that the University authorities were not satisfied with the petitioner and therefore, the Registrar called upon the petitioner to produce her original passport. The petitioner instead of producing her passport, explained in detail her activities abroad and informed the University authorities that she had spent her period abroad in useful pursuit of knowledge as she had been provided aa excellent opportunity to up date herself on latest development in Immunology/Biotechnology especially Humanising Monoclonal Antibodies for Therapy of Cancer. In other words she accounted for the entire period of her absence from the University and also inquired from the Registrar, the specific reasons for asking the petitioner to produce her passport, which was her personal and private document. In reply, the Registrar only stated that since the petitioner had gone to China, on permission from the University, and specially N.O.C. had been issued to her, they wanted to confirm this information from her passport. He further pleaded that the petitioner's passport was not her personal document but it was an official document. The Registrar of the University under the direction of Vice Chancellor continued pressure upon the petitioner to produce her passport while the petitioner kept on avoiding to produce the same before them and finally being threatened of dire consequences the petitioner approached this Court and filed the present petition, in which she has prayed for declaration that the directions by the Vice Chancellor and the Registrar University of Karachi, forcing her to produce the passport before them, were illegal, malafide and without authority. She also requested for a declaration that the requirement of obtaining N.O.C. from the University before proceeding abroad was violative of the provisions of freedom of movement granted by the constitution. The other prayers in the petition were in the general terms that she should not be harassed in future. 5. On pre-admission notice, the respondents 1, 2 &'3 filed their comments and they claimed that under the rules framed by the Governor/Chancellor of the University, the petitioner was required to obtain N.O.C. before proceeding abroad and that since the petitioner had over­ stayed after the duration of the workshop, the respondents were suspecting that the N.O.C. granted by them might have been mis-used and they pleaded that since they had issued N.O.C. they are fully empowered to check and find if it was used only for the purpose for which it was issued and that it was not mis-used. The respondents also claimed that passport was property of the Federal Government and therefore, she was bound to produce to passport before them. However, the respondents made this clear that they did not want the petitioner to surrender her passport to them and that they promised to return the same after inspection. The comments filed by the respondents suggest very clearly that due to lengthy and verbose replied from the petitioner, in response to their directive to submit the passport before them instead of handing them the passport they suspected and apprehended the misuse of the N.O.C. by the petitioner. The main thrust of objection of the respondents to the petition was that since the University authorities had issued the N.O.C., it was their prerogative to check from the petitioner her visits abroad and to find out whether the N.O.C. was misused or not. 6. .'ie learned counsel for both the parties at the stage of Katcha Peshi, gave consent that the matter may be heard for final disposal, as a short point was involved. Consequently the learned counsel were heard in detail. The question before us for decision is whether the respondents can force the petitioner against her wishes to produce the passport before them or inspection under the circumstances of this case ? 7. Speaking in general terms, the passport is the document which is issued to eveiy citizen as a matter of his right to enjoy the freedom of movement. Excepting under the relevant rules when the passport is necessary to be shown on entry or exit to and from a countiy, or unless it is required under the law for investigation of a crime or for any other purpose specified by any special or General Law, a citizen is entitled to keep the same with him as his personal property. In this case we do not find existence of any rule or statute requiring the petitioner to handover the passport to the respondents. The claim of the respondents is to the effect that since they had provided N.O.C. to her for her visit abroad, they have the power to know about the use or mis-use of the N.O.C. Without going into the question whether such power lies with the respondents or not, we do not understand as to, how the petitioner can be forced against her wishes to handover her passport or show to them the entries of her passport when they are neither issuing authority of the passport nor armed with any provision of statutory rule or law under which they can inspect the passport of the petitioner. The learned counsel for the respondents was specifically asked to point out any provision of any rule or statute which enabled them to ask the petitioner to produce the passport before them but the learned counsel, merely relied on the fact that since the N.O.C. was issued by the respondents they had every right to check its misuse and therefore they wanted to check the entries in the passport of the petitioner. This argument does not appeal to us to be sound. What is the basis for their suspicion that the N.O.C. was mis-used?. Secondly what is meant by the word "mis-use of the N.O.C.,"? The N.O.C. issued to the petitioner was not conditional, and admittedly no conditions were attached to it by any rule of law. Even the order of N.O.C. did not carry any conditions, and as none is conveyed to the petitioner, nor the same are disclosed before the Court. 8. Merely saying, that since the workshop was at Beying, they wanted to see whether the petitioner had visited other cities or countries (in original judgment words not decipherable) prima facie genuine need to do so. Impliedly the contention of the respondents appears to be that since the petitioner who was employee of University was being permitted to attend a workshop in Beijing China, she must not visit any other city or countiy. This contention is not supported by any restrictive or prohibitory rules of the University, nor such prohibition is mentioned in the letter of permission/N.O.C. The petitioner had been granted Ex-Pakistan Leave for 15 days over and above the period of the workshop. Naturally these 15 days Ex-Pakistan Leave was meant for private visits of the petitioner to other cities and countries and therefore, there cannot be restriction on her to visit any other country or city, as long as she was doing so while being on leave, spending her own money. Such restriction cannot be put on the petitioner when there is no such express prohibitory clause or rule while granting the N.O.C. nor the counsel for the respondents has cited any statute or rule under which the petitioner was restricted to only the visit of Beijing. If the restriction is put on the petitioner in the circumstances, it will amount to prohibit her freedom of movement which the respondents can not do, as they will be guilty of violation of the provisions of constitution. We, therefore, hold that the respondents insistance on the petitioner to handover or produce the passport to them against her wishes, is not warranted by law. We therefore, allow this petition, to this extent and grant such declaration, in favour of the petitioner. The petitioner has also sought a declaration to the effect that obtaining of the N.O.C. violates, the academic freedom and the provisions of constitution, and human-rights. The petitioner herself had applied for issuing of N.O.C., which was issued to her and she had utilized that N.O.C. and in that way she has acquiceased to the obtaining of the N.O.C. Apart from this, for the petitioner it is merely an academic question as she has neither applied for the N.O.C. second time, nor she intends to sue the same in future. As such we do not feel called upon to examine this question in this case. We, under these circumstances, do not consider that such declaration ought to be granted to the petitioner. The other reliefs sought by the petitioner are also of general nature, like declaration that she could not be harassed by respondents etc. Since main declaration that the petitioner is not bound to produce the passport before the respondents against her wishes has been granted, we do not feel any necessity to grant any further declarations claimed by her. 9. During the pendency of this petition before examining the legal question involved in this petition we had on the prayer of the learned counsel for the respondents directed the petitioner to bring her passport to the Court so that we may permit a representative of the University to take notes from the passport in the Court in presence of some officer of the Court as we thought that by this way the grievance of the petitioner might be remedied. To day, the petitioner has appeared alongwith her passport in Court, and had offered the passport for inspection of the Court, while stating that respondents had no right to inspect her passport against her wishes and she would not consent for such inspection by the respondents. Since we have come to the concltision that the respondents cannot force the petitioner to produce the passport before them, we hereby re-call the earlier orders passed by us. Even otherwise the earlier order is now merged in this final order. The learned counsel for the respondents had also moved an application for issuing notice of contempt against the respondents, as on one date when the petitioner was required to be present in Court with the passport, she had failed to appear. This application for contempt of the Court is also not relevant now in view of our findings that she could not be forced to produce her passport and therefore, the Misc: Appln: No. 1290/96 for action for Contempt of Court, is disposed having become infructuous, and not called for, for any further action. 10. The petition was allowed by a short order on 15.4.1996 and ,, these are the detailed reasons for the said order. (B.T.) Petition allowed.

PLJ 1996 Karachi 845 PLJ 1996 Karachi 845 Present: rasheed A. razvi, J. Mrs. MEHRTAJ YASMEEN ARBAB-Plaintiff versus PAKISTAN DEFENCE OFFICERS HOUSING AUTHORITY, KARACHI & 3 others-Defendants CMA-551/95 in Civil Suit No. 147 of 1994, decided on 23.5.1996. (i) Civil Procedure Code, 1908 (V of 1908)-- —O.VIII, R. 5--Suit for permanent injunction-Amendment application by defendant-Whether admission made in written statement could be allowed to resile while making amendment in written statement- Question of-No doubt admissions were made by defendant about rights of plaintiff and entitlement to allot land in question-But subsequently, it transpired that they have no right to allot this land to plaintiff-This is a subsequent development-However, right and entitlement of defendant to allot suit property to plaintiff have been specifically raised and challenged in joint written statement filed by defendants-Plaintiff is not seeking any relief against defendant-Held : Admissions made by respondents are of no help to plaintiff-Held Further: Even if this application is allowed no prejudice would be caused to plaintiff. [Pp. 849 & 850] A (ii) Civil Procedure Code, 1908 (V of 1908)-- —O.VI, R. 17-Suit filed for. permanent Injunction by plaintiff—Application of defendant No. 1 to make amendment in written statement-Whether inspection of entire land was done by defendants and it was then revealed that defendant was not competent to allot plot-Contents of plaint show that defendant is formal defendant and no relief has been sought against him--Question of entitlement of plaintiff and defendant No. 1 has already been challenged by remaining defendants—In view of pleadings of defendant No. 2 to 4, there may arise issue on this question, therefore, if this application is dismissed even then plaintiff would be required to prove his case for obtaining prohibitory as well as mandatory injunction. [P. 851] B rel: PLD 1978 SC 220. Mr. Mushtaque Memon, Advocate for Plaintiff. Mr. Nazar Hussain Dhoon, Advocate for Defendant No. 1. Mr. Syed Tariq All, Standing Counsel for Defendants No. 2 and 4. Mr. Mumtaz Ahmad Shaikh, Advocate for Defendant No. 3. Date of hearing: 23.5.1996. order This application has been filed by defendant No. 1 under Over VI rule 17, C.P.C. praying that they may be allowed to amend paras 5 and 7 of their written statement. They are not seeking any change or amendment in paras I to 4 and 6 of their written statement. In para 7 they want to add the prayer for dismissal of the suit. The amendments proposed in paras 5 and 7 of the written statement of defendant No. 1 reads as follows :-- "PARA FIVE. That the plaintiff was allotted extra land of 1000 square yards. On the bass of bonafide belief that the said land belongs to the defendant No. 1 but it has now been revealed that the land (property of Pakistan Army) in dispute had already been allotted to defendant No. 4. Accordingly defendant No. 1 had no power to allot the same to plaintiff. The order passed by the defendant No. 1 is therefore void and has no validity in the eyes of law. This position has emerged as a result of investigation carried out on receipt of notice addressed to the defendant No. 1 by Military Estate Officer (Annexure-A) claiming the land in dispute but he was replied (Annexure-B) that the said land is of the defendant No. 1 and has rightly been allotted to plaintiff. In order to ascertain the correct position, it was suggested to M.E.O. that a joint survey was carried out (Report annexed as Annexture-C). The survey report has established that the disputed land does not belong to defendant No. 1 (Annexure-C)." "PARA SEVEN. It is prayed that the suit of plaintiff be dismissed." This is a suit for permanent injunction filed by the plaintiff who was allotted an additional land measuring 1000 square yards adjacent to her plot bearing No. 13, Street No. 15, Phase-V, Defence Officers Housing Authority, Karachi which she acquired in the year 1980, hereinafter referred to as the plot in question. The case of the plaintiff is that in the year 1980 she purchased the plot measuring 2000 square yards which was transferred in her name and accordingly a sub lease in Form 'A' was also executed in her favour. That in the year 1988 an additional land, which is now subject matter of the suit, was regularised/transferred by the defendant No. 1 in her favour against which an amount of Rs. 10,79,990/- was paid to the defendant No. 1. That the plaintiff constructed a boundary wall around this piece of land but on 15-2-1994 she found that some p rsons have trespassed on this land and started construction thereon. It was revealed that they were carrying on this construction under the instructions of defendants No. 2 to 4. In these circumstances, the plaintiff rushed to this court and filed suit for permanent injunction against the defendants No. 2 to 4 restraining them from trespassing on the said piece of land or raising any construction. She has also prayed for mandatory injunction against the defendants No. 2 to 4 for demolishing the construction raised on the additional area and to remove them. On 8-8-1994 the defendant No. 1 filed a very brief written statement, either admitting certain contents of the plaint or not specifically denying them. Defendants No. 2 to 4 have filed their detailed written statement on 18-4-1994 in which they have claimed their right and entitlement on the aforementioned additional land of 1000 square yards and have challenged the authority of defendant No. 1 to allot the same to the plaintiff. They have prayed for dismissal of suit with cost. I have heard Mr. Mushtaque Memon, Advocate for plaintiff who has vehemently opposed the grant of this application. I have also heard Mr. Nazar Hussain Dhoon, Advocate to in support of this application. Mr. Syed Tariq Ali, learned standing counsel for the Government of Pakistan appearing for defendants No. 2 and 4 and Mr. Mumtaz Ahmed Shaikh, Advocate for defendant No. 3 have extended their on objection to grant of this application. On 20-11-1995, during hearing of this application this Court directed the following three persons to appear in Court for the purpose of ascertaining the real facts of the case and to answer material questions relating to the suit. (i) Director Planning, Pakistan Defence Officers Housing Authority, Karachi. (ii) Mr. Jamaluddin Ansari, Military Estate Officer. (iii) Lt. Col. Abdul Rashid Warraich, A.Q. of defendant No. 3. On 28-11-1995 all the above said three persons were examined by this Court. All of them have stated that the defendant No. 1 was not authorised to allot the additional land measuring 1000 square yards to the plaintiff and that the process for regularisation of earlier allotment of plot 2000 square yards to the plaintiff is under consideration. In view of the examination of three persons, the following observations were made by this Court :— "In view of the above statements of the three officers, it appears that the parties are not at issue as far as initial allotment of Plot No. 13, 15th Street, Phase V, D.H.A., Karachi measuring 2000 square yards is concerned. The subject matter of the suit as tentatively appears, pertains to the allotment of extra land measuring 1000 square yards allotted by the Defence Housing Authority. Mr. Mushtaque Memon requests for time to seek instructions from his client in view of today's development." Mr. Nazar Hussain Dhoon has strenuously argued that the amendments sought through the instant application are very material and are also necessary for the complete adjudication of the points involved in this suit. He has referred to annexure 'B' dated 1-9-1994 filed with the supporting affidavit which is a letter addressed by the defendant No. 1 to the Military Estate Office authorising the Deputy Director, Planning, D.H.A. to be a member of the team to inspect the land in question. He has also referred to annexure 'C' to this application which indicates that a joint survey was conducted by the defendants through which it transpired that the lands allotted to the plaintiff including the original land of 2000 square yards never belonged to the defendant No. 1. This fact has been mentioned in the written statements of the other defendants i.e. 2 to 4. In support of this application, Mr. Nazar Hussain Dhoon has referred to the cases of Mst. Sardar Begum u. Malik Khalid Mahmood and others (1986 CLC 2342), Wall Muhammad v. Din Muhammad (1988 CLC 2306) and Ch. Abdul Rashid v. Ch. Muhammad Tufail and others (PLD 1992 S.C. 180). In the reported case of Mst. Sardar Begum a learned Single Judge of Lahore High Court held that the consideration in allowing amendments in the written statement are not governed by the same principle as seeking amendments in the contents of the plaint. It was further held that Courts are more liberal in allowing amendments in defence than of the plaint. In the case of Wall Muhammad, another learned Single Judge of Lahore High Court allowed the revision application of the defendant and permitted to file his amended written statement before the trial Court on the grounds to ensure factual and complete adjudication of the controversies between the parties. This amendment was allowed when the case was ripe for the evidence. A Full Bench of the Hon'ble Supreme Court in the case of Ch. Abdul Pvashid observed that if at all a decision had to be given on the controverted question of fact than the Court should have invited and considered evidence to prove or disprove the same in accordance with law by allowing the appellant to amend his written statement. It was held that the mere fact that the said application was moved 12 years after the institution of suit was no ground for rejecting the amendment. It was further held that great prejudice was suffered by the appellant/defendant by refusing the amendment of written statement and by not framing any issue on the controverted question of existence of right of pre-emption. Appeal was allowed and the case was remanded to the trial Court with the permission to the appellant/defendant ~~ to file his amended written statement Mr. Mushtaque Memon has argued that once a defendant has made admissions in his written statement, he cannot be allowed to resile from the •"" same as it will cause prejudice to the plaintiff. According to the learned counsel, such admissions in the written statement create a right in favour of the plaintiff for decree on admission. In support of his contention, he has referred to the case of Hqji Suleman Mi Muhammad v. Ahmed All and another (PLD 1982 Karachi 111), Secretary to Government N.W.F.P. Department of Agriculture and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 S.C. 242), Atlantic Steamer's supply company v. m.v. Titisee and others (PLD 1993 S.C. 88), Ghulam Mursaleen v. Mian Jahangir Mahmood and others (1991 CLC Note 177) and the case of Mst. Hajiani Hajrabai v. AfzalAli and 2 others (1992 MLD 453). The above reported cases clearly support the proposition that a defendant should not be allowed to resile from his admissions while allowing amendments in the written statement. In the case of Haji Suleman Ali Muhammad, a learned Single Judge of this Court Mr. Saleem Akhtar, J. (as his Lordship then was) held that while filing amended written statement the defendant besides replying the amended part of plaint, can also raise pleas which may be legally available to such defendant but he is not entitled to resile from the admissions made in the earlier statement or to put a completely new or inconsistent case. It was observed in the said case that an admission made by a party in the pleading cannot be revoked without leave of the Court. In the present case, the defendant No. 1 is seeking leave of the Court to resile from such admission on the facts as narrated hereinabove which developed after filing of the first written statement. In the case of Secretary to Government N.W.F.P. Department of griculture and Forests, Peshawar and 4 others v. Abdul Kafil, it was held by the Hon'ble Supreme Court while referring to Order VIII, Rule 5, C.P.C. that the admissions made in a written statement have altogether different legal significance than admissions generally. In the case of Atlantic Steamer's Supply Company, it was held that the Court has power to allow amendment of the pleadings at any stage of the proceedings provided it does not change the complexion of the case and does not cause prejudice to the case of the parties. In the last reported case a learned Single Judge of this Court followed the rule laid down in the case of Haji Suleman Ali Muhammad. I am of the considered view that the facts of these reported cases are distinguishable from the facts of the instant case. No doubt admissions were made by the defendant No. 1 about the rights of the plaintiff and their entitlement to allot the land in question. But subsequently it transpired that they have no such right to allot this land to the plaintiff. This is a subsequent development. However, the right and entitlement of defendant to allot suit property to the plaintiff have been specifically raised and challenged in the joint written statement filed by the defendants No. 2 and 4. Even if the present defendant is not allowed to raise this plea there still remains this issue between the plaintiff and defendants No. 2 to 4.1 may point out here that the plaintiff is not seeking any relief against the defendant No. 1, therefore, the so called admissions made by them are of no help to the plaintiff. The reliefs sought are against defendants No. 2 to 4 who have already raised such facts as are claimed in the amendments. Therefore, even if this application is allowed no prejudice would be caused to the plaintiff. The next contention of Mr. Mushtaque Memon is that in paras 1 to 4 the defendant No. 1 has admitted the title and ownership of the plaintiff while in para 6 they want to deny the same and if such amendments are allowed, it would amount to allowing the defendant No. 1 to adopt an inconsistent plea. In support of his contention, he has relied upon the case of Budho and others v. Ghulam Shah (PLD 1963 S.C. 553) and the case of Syed Mohsin Raza Bukhari and 4 others v. Syed Azra Zenab Bukhari (1993 CLC 31). The question before the Hon'ble Supreme Court in the case of Budho was that how far a party is permitted to take inconsistent plea and how much facts are to be stated by a plaintiff in the pleadings. After referring to Order VI Rule 2, C.P.C., it was held that a plaintiff is bound to state the facts and is confined to a statement of facts and is not bound to state in the pleadings the legal effects which flow from the facts that he alleges. On the question of variance and inconsistency of the pleadings it was observed as follows :-- "There is no bar to a person relying upon more than one alternative source of title. An alternative case should be distinguished from an inconsistent case. No two facts can be said to be inconsistent with each other if both could have happened. The test of inconsistency between two facts would be that a plaint which contains both the facts could not be verified as true by a plaintiff. If for instance the plaintiff alleges a document to be a forgery and at the same time states that the execution by him of the document is the result of undue influence, the pleas are inconsistent with each other and a plaintiff cannot verify both the statements of facts as true. In the case before us the two alleged inconsistent facts are only the Will and the relationship. There is obviously no inconsistency between the facts themselves. When a party puts forward more than one source of his title he is not taken up an inconsistent position. He is only pleading in the alternative." It is to be seen that the annexure 'B' which the defendant No. 1 has proposed to annex with the amended written statement, clearly shows that till September, 1994 the defendant No. 1 was claiming the right to allot the plot in question as well as was also admitting the plaintiff to be a lawful owner of the suit property. The first written statement was filed by the defendant No. 1 on 8-8-1994. Subsequently, an inspection of the entire land was done by the defendants and it was then revealed that the defendant No. 1 was not competent to allot such plot. The contents of the plaint show that the defendant No. 1 is a formal defendant as no relief has been sought against it. The question of entitlement of the plaintiff and defendant No. 1 has already been challenged by the remaining defendants. In view of the pleadings of the defendants No. 2 to 4, there may arise an issue on this question, therefore, if this application is dismissed even then the plaintiff would be required to prove his case for obtaining prohibitory as well as mandatory injunction. Here, I would like to refer to a decision of the Hon'ble Supreme Court in the case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 S.C. 220) where it was held as follows :-- "Indeed in our considered opinion a discretion is vested in this behalf in the Courts to be judicially exercised in proper case in order to avoid multiplicity of proceedings, to shorten litigation, and to do complete justice between the parties and mould the relief according to the altered circumstances in the larger interest of justice." The above principle laid down by the Hon'ble Supreme Court supports the contention of the learned counsel for the defendant No. 1 that it would be with the view to avoid multiplicity of proceedings and to adjudicate all the questions between the parties that the amendments in defence may be allowed. As a result of the above discussion CMA-551/95 is granted and the defendant No. 1 is allowed to amend its written statement. Defendant No. 1 is further directed to file its amended written statement within two weeks and to supply the copies of the same to the plaintiff. The plaintiff shall be entitled to, and in she chooses so, may file her replication. (B.T.) Orders accordingly.

PLJ 1996 Karachi 852 PLJ 1996 Karachi 852 [Civil Original Jurisdiction] Present: RASHEED A. RAZVI, J. RAO KHALID ANWAR KHAN and others-Plaintiffs versus MST. ZAE3-UN-NISA & others-Defendants Suit No. 729 of 1987, Suit No. 67 of 1989 and Suit No. 68 of 1989, decided on 30.5.1996. Civil Procedure Code, 1908 (V of 1908)-- —O. XXIII, R. 11 & 3-Suit for administration-Compromise between parties culminating into consent decree—Whether Court could impose conditions while passing decree-Question of--Once family agreement is reached amicably and without any duress or coercion between parties, same should not be disturbed even if it is unfair to one of parties—Court in the interest of justice particularly in the interest of minors are empowered to impose any condition for the welfare and in the interest of minors. [Pp. 858 & 859] A & B 1994 CLC 138, PLD 1971 Kar. 109, PLD 1967 Dacca 155, 1990 CLC 1614, PLD 1967 Dacca 155, AIR 1938 PC 103. Mr. Atash Mirza, Advocate, for Plaintiffs. Mr. Shahenshah Hussain and Mr. Chaudhary Iftikhar Hussain, Advocates for Defendants. Date of hearing: 19-9-1995 and 16-5-1996. order Through this order, I intend to dispose of some eight applications in the above said three suits as the facts and law involved in all these three suits are common and identical. Brief facts relevant for disposal of these applications are as follows :-- 2. Suit No. 729/1987 involves estate and property left by Rao Noor Sher Khan son of Muhammad Abbas Khan who died on 21-2-1987 in U.S.A. and was burried at Karachi, (hereinafter referred to as the said deceased). The said deceased left behind him surviving two widows who are defendants No. 1 and 2, four sons and six daughters from his first wife and two sons and one daughter from the second wife. All the sons of the first wife are plaintiffs while the daughters from the first wife are defendants No. 3 to 8 and the only daughter from the second wife is the defendant No. 11. The defendant No. 12 is real brother of deceased while defendant No. 13 is the mother in law. The defendant 14 was mother of the deceased who died and her legal heirs were brought on record as defendants No. 14(a) to (d) (vi). The properties left by the said deceased as claimed in the suit vide prayer clause (a) are as follows :-- (i) Property No. C-l, Al-Hilal Society, Karachi. (ii) Property No. F-53/8 Beautiful Homes, Clifton, Karachi. (iii) Property No. F-95/7, Clifton, Karachi. (iv) Motor Car Mitsubishi Gallant, registration No. 185-734. (v) Joint Account with Muslim Commercial Bank Limited, Clifton Branch, Karachi with approximate balance of Rs. 16,00,000/-. (vi) Cash of Rs. 10,00,000/- in the custody of the defendant No. 2. (vii) Household articles worth Rs. 13,00,000/-. 3. On 14-4-1990 a preliminary decree for administration was passed by consent of all the parties and Mr. Justice (retired) Zahoorul Haque was appointed Commissioner/Receiver to take accounts and to make inquiries about the properties left by the said deceased Rao Noor Sher Khan. Thereafter, from time to time matter proceeded before the learned Commissioner/Receiver who after hard work of nearly four years succeeded in realising from different sources a sum of Rs. 71,50,672.80. However, during proceedings before the learned Commissioner/Receiver, the plaintiff and the defendants No. 2, 9, 10, 11 and 13 agreed upon certain terms to compromise their dispute and accordingly filed a statement on 30th July, 1992. As the terms and conditions of the said compromise are under discussion in some of the applications as such it would be advantageous if the relevant portion of the statement dated 30-7-1992 is reproduced :-- " ..... It is submitted by the plaintiffs and defendant No. 2 for self and as guardian ad litem of defendants No. 9, 10 and 11 that parties have agreed in principle whereby plaintiffs shall exclude properties bearing No. F-95/7 and F-53/8, both in Clifton Karachi from present suit and shall withdraw Suit No's. 67 and 68 of 1989 and the defendant Nos. 2, 9, 10 and 11 shall accept Rs. 25,00,000/- (Rupees Twenty Five lacs) in full and final settlement of their entire share in the estate of Rao Noor Sher Khan subject to the condition that this arrangement is approved by the Hon'ble High Court. The amount of Rs. 25,00,000/- as above shall be deposited by the Nazir of the Hon'ble High Court in the names of defendants No. 9, 10 and 11 from the amounts already received and lying with him. The amounts so deposited shall be paid/withdrawn by the minors on attaining majority. The amounts and names are as under: Rs. 5,00,000/- in the name of Baby Shehla Khan. Rs. 10,00,000/- in ^e name of Master Shahrukh Khan. Rs. 10,00,000/- in the name of Master Khurram Khan. A compromise application shall be filed in the Hon'ble High Court in this suit and withdrawal applications in the Suit Nos. 67 and 68 of 1989 during the month of August, 1992. If is further agreed that rest of estate of Rao Noor Sher Khan shall be administered and distributed by plaintiffs amongst all other legal heirs of deceased details whereof shall be given in the compromise application and the defendant Nos. 2, 9, 10 and 11 shall have no claim on any account whatsoever. It is further agreed that all properties movable or immovable or accounts which have been or are in the name of any legal heir shall be his/her exclusive property and the parties hereto shall have no claim whatsoever " 4. It was in view of this factual background that the parties have filed applications under Order XXIII, Rules 1 and 3 C.P.C. 5. On 21-4-1994 when this matter came up before my learned brother Mr. Kama! Mansoor Alarn, J., it was observed by him that the matter appeared to have been settled as far as the plaintiffs and the defendants No. 2, 9, 10 and 11 were concerned. The relevant portion of the order dated 21-4-1994 passed by this Court is reproduced as follows :— "As regards the amount received from USA, plaintiffs counsel states that this is US $ 84,898.28 which has been converted into Pakistan currency and is approximately Rs. 30 lacs, since transferred to the Nazir of this Court. Out of this amount Mr. Mirza, on instructions of the plaintiffs, who are present in Court, initially offered an amount of Rs. 6,50,000/- as the share of the defendants No. 2, 9,10 and 11. The defendant No. 2 is present in Court and states that she is entitled to half of that amount as that was the amount transferred from her account in the USA to the account of the deceased from which the said amount has been remitted to Pakistan. Subsequently, Mr. Mirza in consultation with the plaintiffs has increased the offer to Rs. 7,50,000/- which the defendant No. 2 accepts. However, she states that as it is just part of the amount transferred from her account to the account in question in the USA she is entitled to appropriate the entire sum of Rs. 7,70,000/-. Mr. Mirza states that the plaintiffs have no concern with this aspect of matter. The defendant No. 2 undertakes to produce proof about the amount having been transferred from her account in USA to the account of the deceased as claimed by her. She will do so on the next date. The controversy, in so far as the plaintiffs and defendants No. 2, 9, 10, 11 and 13 are concerned, is settled on the above terms. As regards other defendants, I am informed that the defendant No. 14 was exparte and so also her legal heirs. Mr. Shahenshah Hussain is representing defendants No. 1, 3 to 8 and Mr. Faiq Hussain holding brief for him states that Mr. Shahenshah Hussain is out of Karachi in connection with professional work." 6. Suit No. 67 of 1989 was initially filed by one of the son of deceased namely Rao Tahir Anwar Khan against Mst. Kulsoom (defendant No. 2 in Suit No. 729/87). Subsequently, other legal heirs were also impleaded. This is a suit for declaration, cancellation of documents, possession and injunction in respect of immovable property cited at serial No. (iii) above. Damages from the defendants to the tune of Rs. 50,00,000/- is also prayed by the plaintiffs. The plaintiffs of Suit No. 67/89 have filed another suit against Mst. Kulsoom, K.D.A. and one Maleehuddin for declaration, injunction, possession, cancellation of document and mesne profit for the immovable property cited at serial No. (ii) above. 7. I have heard Mr. Atash Mirza, Advocate for plaintiffs, Mr. Shahenshah Hussain and Mr. Iftikhar Ahmed Chaudhry, Advocate for the defendants. I have also heard Mst. Kulsoom, defendant No. 2 who was present throughout the hearing. CMA-53/95in Suit No. 729/87 8. This application is filed by the defendant No. 11 namely Miss Shahla Khan praying that since she has attained the age of majority as such she may be allowed to compromise the above suit In support of this application, she has filed Extract from the Register of Birth maintained by the Cantonment Board, Karachi which shows her date of birth as 26-11- 1976. She has also filed Form-B ( i~_> ) which again confirms her date of birth. She has also filed a copy of General Certificate of Education issued from the University of Oxford, U.K. confirming the same date of birth as mentioned hereinabove. This application is pending since 9th January, 1995 and none of the parties to this suit have filed any objection or counter affidavit to the same. In view of the documents filed with this application which have gone unrebutted, I grant this application. CMA-53/95 stands disposed of. CMA-5069/92 in Suit No. 729/87. 9. This application is filed by the defendant No. 2 namely Mst. Kulsoom Akhtar under Order XXXVIII, Rule 7, C.P.C. seeking leave to compromise the suit as Guardian ad-litem of defendants No. 9 to 11. Since I have held above that defendant No. 11 has attained the age of majority and her application CMA-53/95 stands granted, this application is treated as filed on behalf of defendants No. 9 and 10 only. It is averred in this application that an amount of Rs. 25 lacs out of Rs. 75 toes shall go to the minors, Rs. 1 million to defendant No. 9, Rs. 1 million to defendant No. 10 and Rs. 5 lacs to defendant No. 11 which shall be deposited with the Nazir of this Court. None of the parties except plaintiff No. 4 has objected to grant of this application. However, Mr. Atash Mirza, Advocate, who is representing the plaintiffs states at bar that now the plaintiffs are not opposing to the grant of this application. Mr. Chaudhry Iftikhar Ahmed, who is an Advocate of Supreme Court of Pakistan has filed his Certificate alongwith this application as provided under Order XXXII, Rule 7 (1-a), C.P.C. to the effect that the terms of the compromise as proposed are in the interest of the said minor defendants and that the same are not in any way adverse to the interest of above said jainors. To me this is the full compliance of the sub rule l(a) to rule 7 of Order XXXII, C.P.C. as amended by this Court 10. It is an admitted fact that deceased Rao Noor Sher Khan has left surviving some 16 legal heirs. Out of a total collection of cash amounting to Rs. 7.1 million, the three minors are getting Rs. 2.5 million, who are three in number and amount being paid to them is more than 1/3. Therefore, in so far the amount of cash is involved I am convinced that the interest of minors is fully protected. Accordingly, this application is granted and the defendant No. 2/Guardian ad-litem of the minors defendants No. 9 and 10 is permitted to enter into compromise as mentioned above. CMA-7006/92 and CMA-7766/92 in Suit No. 729/89 11. Both these applications are under Order XXIII, Rule 3, C.P.C. read with section 151 C.P.C. CMA-7006/92 has been filed by defendants No. 2, 9, 10, 11 and 13 while CMA-7766/92 has been filed by the plaintiffs. The defendants in their application have relied upon the statement filed by them alongwith the plaintiffs before the learned Commissioner/Receiver which I have reproduced hereinabove, while the plaintiffs have in detail set out the terms of propo^d compromise. During the course of hearing none of the parties have raised any objection to the proposed terms except Mr. Chaudhry Iftikhar, learned counsel for the defendants No. 2 and for 9, 10 and 11. He objected on placing embargo/restrictions on disposal of the property known as 'White House' situated on plot No. F-95/7, Clifton, Karachi. In the interest of justice and to protect the interest of all the parties, I am inclined to grant both these applications on the terms and conditions stated in the end of said order. CMA-5304/92 in Suit No. 729/87 12. Learned counsel does not press this application in view of acceptance of the compromise, as such, this application is hereby dismissed as withdrawn. CMA-7005/92 in Suit No. 67/1989 13. This is an application under Order XXIII Rule I, C.P.C. file by the defendant No. 1 namely Mst. Kulsoom Khan praying that the above mentioned suit be dismissed as withdrawn in view of the compromise/agreement dated 30-7-1992. It is one of the terms of compromise that both the subsequent suits namely Suit No. 67/89 and Suit No. 68/89 should be withdrawn, therefore, this application must succeed in view of the fact that the plaintiffs of both the suits have separately agreed for its withdrawal. 14. On merits of the proposed compromise, Mr. Atash Mirza has referred to the case of Lai Bux and another v. Abdul Rasool Through Legal Heirs and another (1994 CLC 138) in support of his contention that the parties have willingly entered into the compromise which being a lawful contract is binding on all the parties. In this reported case, plaintiff filed a revision application before this Court being aggrieved by the order of the learned Additional District Judge, Hyderabad who dismissed his application filed against the order of the trial Court who declined to record the compromise. A learned single Judge of this Court Mr. Abdul Rahim Kazi, J. (as he then was) after considering the case of Mirza Iqrar Beg v. Hannan (PLD 1979 Karachi 620), Mst. Sajida Sultana and another v. Messrs. Eastern Traders and others (PLD 1971 Karachi 109), SreeNalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 155) and the case of Mst. Khurshid Begum v. Mir Muhammad & Co. (1990 CLC 1614), held that smce the parties at no stage denied having entered into compromise or having put their signatures on the application, the Court held that the parties had entered into a lawful compromise. It was also held by another learned Judge of this Court in the case of Mirza Iqrar Begum (Supra) that the whole purpose of Rule 3 to Order XXIII C.P.C. will be lost if the Court is deprived of the powers to decide whether the agreement or the compromise pleaded by a party has been reached or not. A Division Bench of Dacca High Court in the case of Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 155) has observed as follows :— "It will be apparent from a plain reading of the above rule that once the conditions laid down in it are satisfied that is to say the Court is satisfied that the compromise is lawful it is mandatory upon the Court to record the compromise and to pass a decree in accordance with the compromise. It is further to be seen that the compromise may be with regard to the whole of the suit or any part thereof but the wordings do not indicate that the Court has power to record a portion of the compromise only rejecting the rest. When it is a case of compromise the question of adjudication does not arise. The compromise may itself relate to a part of the subjectmatter of the suit when the duty of the Court would be to record the compromise if lawful with regard to that part only of the subject-matter of the suit. The Court itself cannot pick and choose regarding the items forming the subjectmatter of the compromise. Therefore in this case it was open o the Court either to accept the compromise as a whole or to reject the same as a whole finding that five items of the compromise were unenforceable and unlawful ................................................ " 15. This compromise has been filed on the basis of a compromise reached before the Receiver; all the parties are legal heirs/successors of the deceased. It is a family arrangement settled between the legal heirs as appears from the contents of the compromise application. I am of the view that once a family arrangement is reached amicably and without any duress or coercion between the parties, the same should not be disturbed even if it is unfair to one of the parties. I am fortified in my view by the case of Martin Cashin and others v. Peter J. Cashin (AIR 1931 PC 103). In one of the recent cases, our Supreme Court has held that 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 whole 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. It was further held by the Hon'ble Supreme Court in the case of Umar Bakhsh and 2 others v. Azim Khan, and 12 others (1993 SCMR 374) that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties and that the Court would consider the document to be compromised when both parties signing agreement and reiterate the contents before the Court and in case any of thr parties resiles from it then such document may be called anything but an agreement or compromise. 16. In the instant case, none of the parties have denied their signatures on the statement made before the Receiver or upon the compromise application. The controversy is about the imposition of a condition upon the defendant No. 2 Mst. Kulsoom Akhtar from disposing of a property namely White House till the minors attained the age of majority. According to Mr. Choudhry Iftikhar, Advocate If such conditions are imposed then the terms of compromise are not acceptable to defendants No. 2 and 13. As discussed earlier, I am of the considered view that it is a lawful agreement between the parties who have admitted the same on more than several occasion. None of the party is entitled to resile from this agreement. I am of the view that while allowing the parties to compromise, the Courts, in the interest of justice and particularly in the interest of the minors re mpowered to impose any condition for welfare and in the interest of such minors. In the present case, the other legal heirs have withdrawn their claim on the properties cited at paras (ii) and (iii) above and have also agreed for unconditional withdrawal of the other two suits. In such circumstances, I do not deem it proper to impose any condition on these two immovable properties. 17. In view of the aforesaid circumstances, I hereby grant both th applications for the compromise and decree the suit No. 729/1987 with no order as to cost in the following terms :— (i) That the following three (3) immovable properties are excluded from the estate and properties of deceased Rao Noor Sher Khan. These properties shall remain and vest in the names of those persons whose names appear on the title documents of these properties. None of the other legal heirs shall have any right, interest or share in these properties :-- (a) House bearing No. C-l, Al-Hilal Co-operative Society, Karachi measuring 1000 square yards. (b) House No. F-95/7, Clifton, Karachi. (c) House No. F-53/8, Clifton, Karachi. (ii) That out of and from money lying with Naazir, the defendants Nos. 14 (a) and 12 namely, Dr. Alam Sher Khan and Rao Mubarak Sher Khan shall be paid Rs. 3,60,000/- each (Rupees three lacs and sixty thousands only), and other legal heirs namely defendant No. 14(b), (c) and (d)(i) to (vi), namely, Mst. Batool Begum, Mst Hashmat Ara Begum and Mst. Shahiehan Begum and others shall be paid Rs. 1,80,000/- each (Rupees one lac and eighty thousands only). (iii) That defendant No. 2, namely, Mst. Kulsoom Akhtar alias Mrs. Kulsoom Khan has merged her share with that of her three minor children from deceased Rao Noor Sher Khan for arriving at a lump sum amount of Rs. 25,00,000/- as mentioned above and as such defendant No. 2, 9, 10 and 11 shall have no further or additional claim on account of share or otherwise out of estate of deceased Rao Noor Sher Khan and Mst. Razia Begum. (iv) That out of and from money lying with Naazir and made available by learned Administrator the defendant Nos. 9 and 10, namely Rao Shahrukh Khan and Rao Khurram Khan shall be entitled to Rs. 10,00,000/- (Rupees ten lacs only) each and defendant No. 11, namely, Shehla Khan shall also be entitled to Rs. 5,00,000/- (Rupees five lacs only) in full and final settlement of their entire share of inheritance; (v) That in addition to the above share, the defendants No. 2, 9, 10 and 11 shall also get Rs. 7,50,000/- as agreed on 21-4- 94 before this Court. Rs. 3,00,000/- each will go to the defendants No. 9 and 10 while Rs. 1,50,000/- will be paid to defendant No. 11. (vi) That the parties shall also be entitled for interest/profits accrued on their respective shares till this date. (vii) That the above two legal heirs i.e. defendants No. 9 and 10 being minors their share in the above amounts shall be invested by the Naazir in some profitable scheme. (viii)That the plaintiffs and defendants No. 3 to 8, namely Rao Khalid Anwar Khan, Rao Shahid Anwar Khan, Dr. Tariq Anwar Khan, Rao Tahir Anwar Khan, Mrs. Gulsabah Saeed Khan, Mrs. Fauzia Karim Khan, Mrs. Shahina Kaleem Khan, Mrs. Rubina Javeed Khan, Mrs. Samina Nadeem and Mrs. Uzma Adil Khan shall jointly inherit according to their respective shares with complete exclusion of all other legal heirs of deceased Rao Noor Sher Khan and Mst. Razia Begum the property being plot of land with building thereon bearing No. D-104, measuring 1000 square yards, situated in Block-4, KDA Scheme No. 16, Federal B. Area, Karachi. (ix) That all other estate inclusive of movable and immovable properties, tenancy and assets, and debts and securities inclusive of residual amount with Naazir or learned Administrator, shares and accounts and partnership business, its assets, accounts and lockers whatever and wherever in the name of or for the benefit of deceased Rao Noor Sher Khan and his legal heirs and that of legal heirs of deceased Mst. Razia Begum shall vest jointly in plaintiffs No. 3 and 4 as Joint Administrators of estate of Rao Noor Sher Khan and Mst. Razia Begum. (x) That plaintiff Nos. 3 and 4 as Joint Administrators of estate of deceased Rao Noor Sher Khan and Mst. Razia Begum shall jointly collect, manage, administer and utilize the estate for the benefit of themselves and plaintiffs Nos. 1 and 2 and defendants Nos. 3 to 8 in accordance with their respective shares and in the best interest of the properties. (xi) That it is declared that properties generally known as 44 or 44/1, Khayaban-e-Tanzeem, Messrs. Rai Zada, Messrs. Awane Bostan and plot No. FL-19/15, Gulistan-e-Jauhar never belonged to deceased Rao Noor Sher Khan and similarly all movable properties and particularly bank accounts No. 3900-E in United Bank Limited, Clifton, Karachi in the name of plaintiff No. 4 and No. 1567 in Muslim Commercial Bank Limited, Clifton, Karachi in the name of defendant No. 8 belonged to persons in those names the respective properties and accounts stand and/or are maintained and deceased nor any of his legal heirs nor of that of Mst. Razia Begum shall have any claim of whatsoever nature on such properties or accounts. (xii) That the defendant No. 1 is declared to be the owner and in possession of properly being plot of land with building thereon bearing No. C-l, measuring 1000 square yards, situated in Al-Hilal Cooperative Housing Society, Off University Road, Karachi. (xiii)That in view of the above settlement and as agreed by the plaintiffs of Suit Nos. 67/1989 and 68/1989 both these suits are dismissed as withdrawn with no order as to cost (xiv)Suit No. 729/1987 stands decreed in terms of compromise as mentioned above with no order as to cost. Consequently, all applications as mentioned above are also disposed of. (A.P.) Orders accordingly.

PLJ 1996 Karachi 862 (DB) PLJ 1996 Karachi 862 (DB) Present Au muhammad baloch and abdul latif qurehsi, JJ. M/s PAKISTAN CHEMICALS LTD--Petitioner versus SIND LABOUR APPELLATE TRIBUNAL and 2 others-Respondents C.P. No. D-619 of 1995, dismissed on 9.5.1996. (i) Back Benfits-- —Re-instatement in service-Back benefits-Claim for-It is settled law that aggrieved worker is not entitled to back benefits in every case of unlawful dismissal-He is entitled to such benefits only if he can prove that during period of his illegal dismissal he remained jobless and could not earn his livelihood-This fact can only be ascertained by evaluating evidence produced by parties before trial court. [P. 867] E (ii) Constitution of Pakistan, 1973-- —-Art. 199 read with S. 25-A of Industrial Relations Ordinance, 1969- Termination from service-Grievance notice to employer in terms of S. 25-A of IRO not signed by worker himself-Legal value of such notice-A notice even if not signed will still be notice if it discloses facts and person who received same know as to who has sent it—Employer has received notice knowing fully well as who has sent notice and employer/petitioner has replied same-Held: Notice though not signed by respondent is still legal grievance notice u/s 25-A, I.R.O., 1969. [P. 866] A (iii) Notice- —A notice even if not signed will still be a notice if it discloses facts and person who has received notice knowing fully well as who has sent it. [P. 866] D (iv) Signature- —Main purpose of putting signature on a document or notice is that person who given notice or authenticate a document should not in future deny same, and person to whom it is intended should known, as to whom has given statement or notice. [P. 866] C (v) Words and Phrases-

Definition of word notice as given in Stroud's Judicial Dictionary are as:- "Notice is a direct and definite statement of a thing"; "supplying materials from which the existence of such thing may be inferred." [P. 566] B Mr. Rafat Osmani, Advocate, for Petitioner. Mr. Ashraf Hussain Rizvi, Advocate, for Respondent No. 3. Date of hep :mg: 16.4.1996. judgment Petitioner has filed this Constitution Petition against the order of Sindh Labour Appellate Tribunal, Karachi dated 15.5.1995 thereby setting aside the order of III Sindh Labour Court at Karachi and ordering re­ instatement of Respondent No. 3 Aziz ur Rehman, in service. Facts in brief are that on 11.8.1990, Respondent No. 3 Azizur Rehman, was appointed as a badli worker against a post of permanent helper. His services were terminated by the Petitioner on 14.1.1991 on the ground that due to joining of the permanent helper who was on leave, his services were no more required. The Respondent No. 3 gave a grievance notice dated 27.1.1991 to the Petitioner on the plea that he being a permanent worker, his services cannot be terminated. The Petitioners replied the notice through letter dated 2.2.1991. The Respondent No. 3 approached III Sindh Labour Court by filing a grievance petition under Section 25-A of the IRQ, 1969. The Labour Court came to the conclusion that though he was appointed as a badli worker but as the served for more than there months with the petitioners, he acquired the status of a permanent worker. It was further observed that the reason given in the termination order by the Petitioner is vague and is not valid. The trial Court also rejected the Petitioner's objection that grievance notice f ~ ~~ was time barred by holding that grievance notice was given by the Petitioner within the statutory period of two months. However, the grievance petition and dismissed on 14.4.1992 merely on the ground that grievance notice was not signed by the Respondent No. 3 himself or by a shop steward or by an office bearer of CBA, as such, it is not a grievance notice under the law. Being aggrieved by this order of the Labour Court, the Respondent No. 3 filed an Appeal before the Sindh Labour Appellate Tribunal at Karachi. The learned Appellate Tribunal set aside the order of the lower Court, allowed the Appeal and held the grievance notice signed by some body I on behalf of the appellant would still be a notice under the law and directed the Petitioner to re-instate the Respondent No. 3 in sendee within thirty days. Pre-admission notice was issued to Respondent No. 3 Aziz ur Rehman. At the very outset of the arguments it was decided with consent of the parties that as only a short point is involved the matter may be heard and decided finally. Learned counsel for the Petitioner contends that the learned Appellate Tribunal has not given any reason for holding that grievance notice even if signed by some body also on behalf of the Respondent No. 3 can still be a valid and legal notice. His main emphasis is that the grievance notice should either be signed by the worker himself or shop steward or an office bearer of CBA as incorporated in Section 25-A of the IRO. Lastly, he argued that the Respondent No. 3 was not a permanent worker as during his employment period he has remained absent for some time, as such, there was break in service. On the other hand learned counsel for the Respondent No. 3, worker submitted that it is not mandatorily requirement under Section 25-A of the IRO that the grievance notice should be signed by the worker himself or shop steward or an office bearer of CBA, but the essence of this provision of law is that he himself or other persons nominated under Section 25-A of IRO should bring the grievance to the notice of the employer in writing and that whether such notice is signed by him or not is immaterial. His further contention is that as regards the objection of the Petitioner's counsel regarding category of worker whether he was permanent or badli worker or that notice was time barred, it cannot be agitated in a Constitution Petition as these findings of the Labour Court were not challenged by the Petitioner in Appeal before the Appellate forum. Finally he argued that as the Sindh Labour Appellate Tribunal has held dismissal of the worker illegal and ordered re-instatement of the Respondent No. 3 in service, he is also entitled to back benefits. Provisions of Section 25-A of the IRO, 1969 reads as unden- "25A. Redress of individual grievances.--(l) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) Where a worker brings his grievance to the notice of his employer through his shop steward or collective bargaining agent, the employer shall within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be the collective bargaining agent. (4) If the employer fails to communicate a decision within the period specified in sub-section (2) or, as the case may be, sub-section (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court or as the case may be, the collective bargaining agent may take the matter to the Labour Court and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were in an industrial dispute: Provided that a worker who desired to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in sub-section (2) sub-section (3), as the case may be. (5) In adjudicating and determining & grievance under sub­ section (1), the Labour Court shall go into all the facts of the se and pass such orders as may be just and proper in the circumstances of the case. (6) If a decision under sub-section (4) or an order under sub-section (5) given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect to or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend of one year, or with fine which may extend to one thousand rupees. (7) No person shall be prosecuted under sub-section (8) except on a complaint in writing: - (a) by the workman if the order of decision in his favour is not implemented within the period specified therein, or (b) by the Labour Court or Tribunal, if an order or \ decision thereof is not complied with. (8) For the purposes of this section, work having . common grievance arising out of a common cause of action may make a joint application to the Labour Court." Learned counsel for the Petitioner has relied on case of Syed Mohd. Hussain vs. M/s Pakistan Tobacco Co. Ltd. (PLD 1980 SC 80) which resolves the two contradictory versions as to who can give grievance otice, held by different high Courts, one arising out from case of Daud Hosiery I Mills vs. Hazrat Mohd. Yousuf (Writ Petition No. 264/75) were His Lordship Mr. Justice Abdul Hayee Qureshi (as he then was) held that the word "himself must be construed liberally so as to include an agent and that ' an Advocate can also given grievance notice on behalf of the worker. Contrary view was taken by Labour Appellate Tribunal in case of Hussain Textile Mills vs. Mohd. Ishaq (Appeal No. Karachi 440/73). An Appeal against the order of Labour Appellate Tribunal, My Lord Mir Khuda Bakhsh Marri, J. (as he then was) confirmed the view expressed by Labour Appellate Tribunal relying on case of Karachi Union of Employers & others vs. The Industrial Court Karachi & others (PLD 1961 SC 57) where it has been held that word "himself needs no other interpretation except "workman himself or through his two other agencies as provided in Section 25-A of the IRO out not through an Advocate or other agent. In Muhammad Hussain vs. Pakistan Tobacco Co. Limited (PLD 1980 SC 80) My Lord Muhammad Haleem, J (as he then was) has supported the view expressed in case of Karachi Union of Employers & others vs. The Industrial Court Karachi, that word "himself mean worker himself only and that the intention of the lagislature is to avoid legal quibbles. My Lord has referred to case of Monks vs. Jackson 1876 LRCPD 683, Queen, vs. Mansel Jones (1889) 23 QBD 29 in which implication of word "himself" was considered. There is no cavil to the proposition that worker himself or person nominated under Section 25-A of the IRO i.e. shop steward or office bearer of CBA can given the grievance notice to the employer, but in the instant case position is quite different. It is not the case of the petitioner that notice has not been given by the worker himself but it is not signed by him, and at his instance some body has signed the notice. The essence of Section 25-A of the IRO, 1969 is that a worker has to bring his grievance to the notice of his employer in writing himself or through persons empowered under Section 25-A of the IRO. In other words it mean that anything in writing sent by the worker himself to the employer to bring his grievance to notice of the employer. Definition of word notice as given in Stroud's Judicial Dictionary are as:- "Notice is a direct and definite statement of a thing"; "supplying materials from which the existence of such thing may be inferred." Thus it would be clear that any communication made supplying material from which existence of such thing may be inferred or statement regarding existence of a thing is made, is a proper notice. The main purpose of putting signature on a document or notice is that the person who given notice or authenticate a document should not in future deny the same, and also, the person to whom it is intended should known, as to who has given the statement or notice. A notice even if not signed will still be a notice if it discloses the facts and the person who received the same know as to who has sent it. In the instant case employer has received the notice knowing fully will as who has sent the notice and the employer petitioner has replied the same. Mere communication of notice in writing, is the requirement of law. In view of this we are of the opinion that the Appellate Tribunal has rightly come to the conclusion that this notice though not signed by the Respondent is still a legal grievance notice under Section 25-a of the IRO, 1969. The other contention of the learned Advocate for the Petitioner is that Respondent No. 3 A2iz ur Rehman is not a permanent worker but a badli worker and that the grievance notice is time barred. In this regard the learned Labour Court has clearly given finding that Respondent No. 3 Aziz ur Rehman was a permanent worker as he had worked for more than three months and his services could not be terminated. Infact these findings of the Labour Court have not been challenged by the Petitioner before the Tribunal, as such, it has become final. Learned Advocate for the Respondent No. 3 has relied on case of M/s Metal Containers (Put.) Limited vs. The Chairman, Singh Labour Appellate Tribunal & others (CPLA No. 342-K/91) where his Lordship Mr. Justice Saleem Akhtar has held that the finding of the Labour Court not challenged by the Petitioner before the Appellate Tribunal, becomes final. In view of this settled position, arguments advanced by the counsel for the Petitioner cannot be considered in Constitution Petition. As regards the question of back benefits Advocate for the Respondent No. 3 has relied on case of M/s National Bank of Pakistan vs. Singh Labour Appellate Tribunal (1992 PLC 94) where it has been held that "order terminating sendees of employee having been found to be unlawful, full back benefits should have been allowed to employee." Respondent No. 3 Aziz ur Rehman in his grievance application has claimed back benefits but the same was dismissed, and in Appeal the Appellate Tribunal set aside the order of Labour Court but has not given any finding whether the Respondent No. 3 is entitled for back benefits or not. It is a settled law that the aggrieved worker is not entitled to back benefits in every case of unlawful dismissal. He is entitled to such benefits only if he can prove that during the period of his illegal dismissal he remained jobless and could not earn his livelihood. This fact can only be ascertained by evaluating the evidence produced by the parties before the trial Court. The learned Appellate Tribunal while hearing the Appeal must have appreciated the evidence led by both the parties before the trial Court and there is no order/mention of back benefits to the Respondent No. 3 in its judgment, which amounts that the Appellate Court could not come to the conclusion that the Respondent No. 3 is entitled for the same. Benefit cannot be awarded to Respondent No. 3 Aziz ur Rehman in a Constitution Petition filed by the Petitioner challenging his re-instatement order. In view of the above discussion we are of the opinion that the Petitioner has not made out any case which warrant our interference under Constitutional jurisdiction of this Court. Accordingly, the Petition is dismissed with no order as to costs. (A.P.) Petition dismissed.

PLJ 1996 Karachi 868 PLJ 1996 Karachi 868 Present: RASHEED A. razvi, J. CHIEF through its PARTNER S.M. AQIL-Plaintiff Versus UNION CO-OPERATIVE CLUB LTD. and another-Defendants Suit No. 645 of 1990, dismissed dn 25.4.1996. (i) Civil Procedure Code, 1908 (V of 1908)- —O. XV R 3--Deterinination of-Question of-Preliminary issues-ln present case, court granted hearing of preliminary legal issues as provided under Order XV, Rule-3 C.P.C. which provides that when parties are at issues on some legal question which issue have heen framed hy Court, and if court is satisfied that no further arguments or evidence is required upon such preliminary issues, court may proceed to determine such issues~If order attains finality, no objection is admissible. [P. 871] A (ii) Partnership Act, 1932-- —S. 69~Non-registered partnership firm-Effect of--Contention that plaintiff is not a registered firm and is not entitled to sue and that suit is liable to be dismissed-Plaintiff had ample opportunity to rebut these allegations by producing certificate of registration-Adverse inference can be drawn to the effect that plaintiff is not a registered firm Held : It cannot bring suit in the name of a partnership firm-Suit dismissed. [P. 872] B & C 1994 MLD 274, PLD 1966 S.C. 328, PLD 1968 Kar. 196, 1986 CLC, 242, PLD 1960 Kar. 779. (iii) Partnership Act, 1932-- —S. 69 read with S. 70 of Sindh Co-operative Societies Act, 1925-Suit by partnership firm against Co-operative Society-Effect of non-delivery of prior notice-Plaint is silent whether any prior notice as provided under section 70 of Act, 1925 was served—Notice referred by learned counsel for plaintiff cannot he treated as notice under section 70 of Act, 1925-Held: uit not maintainable in view of S. 69 of Partnership Act, 1932 as well as in View of S. 70 of Sindh Co-operative Societies Act, 1925. [P. 873] D 1996 MLD 593, PLD 1995 Kar. 399, PLD 1975 Kar. 428, PLD 1976 Kar. 1107, 1984 C.L.C. 2914, AIR 1940 Sindh 143. Mr. Hassan Inamullah, Advocate, for Plaintiff. Mr. Muhammad Zaki and Mr. Igbal Kazi, Advocates for Respondents. Date of hearing: 9.4.1996 & 15,4.1996. judgment This is a suit for declaration, permanent injunction, damages and specific performance of an agreement dated 7.9.1988 filed by a partnership firm as claimed in the memo of plaint. 2. The case of the plaintiff is that they obtained lease for a land measuring 5000 square yards from defendant No. 1 which is a cooperative society duly registered under the Co-operative Societies Act, 1925 through an agreement dated 7.9.1988, for 10 years. That on 17.5.1990 the defendant No. 1 informed the plaintiff that the general body of the club refused to approve the agreement. It is claimed by the plaintiff that a considerable amount of money has been invested on the uplift of the land and that the plaintiff being in physical possession of the area is entitled to continue till expiry of the lease. The plaintiff has prayed for the following reliefs:- (a) Declare that the Lease Deed dated 7.9.1988 is subsisting, valid and binding on the parties and the Defendants cannot unilaterally cancel, revoke, recall or back out from the said Lease Deed and notice dated 17.5.1990 is of no legal effect. (b) Permanent Injunction restraining the Defendants, their Agents, Servants or any one acting on their behalf from disturbing the possession of the Plaintiffs on the plot in question and from obstructing, interferring or causing any hurdle in the construction or enjoyment of the Lease by the Plaintiffs. (c) Mandatory injunction directing the Defendants or any one under their instructions to render full assistance and full co-operation with the Plaintiffs for compliance of the requisite formality of construction, maintenance and full enjoyment of the Lease. (d) The plaintiff further prays for damages against the Defendants in the sum of Rs. 17,32,384/- with interest 3. The case of the defendant No. 1 is that for the purpose of generating funds for providing modern Tennis Court and Swimming Pool to its members, the plaintiff was allowed to enter upon a portion of land with the prior condition that the plaintiff shall first develop new Tennis Court for the use of members of the said defendant The defendant No. 1 has denied that any construction or development work was done by the plaintiff. The validity and legality of the lease deed executed between the plaintiff and the defendant No. 1 is also challenged by the said defendant. Defendant No. 2 has, more or less stated the same facts as of written statement of defendant No. 1. However, both the defendants have raised objections to the maintainability of the suit on the grounds as embodied in section 69 of the Partnership Act, 1932 as well as in section 70 of the Co-operative Societies Act, 1925. 4. On 31.10.1993 consent issues were adopted by this Court which also include two legal issues on the question of maintainability of this suit. Thereafter, defendant No. 1 filed an application under Order XV, Rule 3, C.P.C. (CMA-2909/95) praying that the three issues be disposed of first, without recording evidence. On 31.8.1995 the said application was granted and the parties were directed to make their respective submissions on the following two issues:- (i) Whether the suit is maintainable in law? (ii) Whether the plaintiff has given notice under section 70 of the Co-operative Societies Act, 1925 before filing of this suit? 5. I have heard Mr. Hassan Inamullah, Advocate for plaintiff and Mr. Muhammad Zaki Ahmed and Mr. Iqbal Kazi, Advocates for the defendants. It is cor.cended by both the learned counsel for the defendants that this suit is not maintainable in view of clear bar contained in section 69 of the Partnership Act, 1932. They have referred to the title of plaint as well as agreement (Annexure-B) to the plaint which shows that the plaintiff is a firm duly registered under Partnership Act, 1932. They have also referred to Annexure 'D' filed with the plaint in support of their contention that the plaintiff claimed itself to be a registered partnership firm. In these circumstances, it was argued that the plaintiff is liable to show the Registration Certificate of the Registrar of the firms in order to fulfil the requirement of subsection (2) to section 69 of the Partnership Act, 1932. 6. Mr. Hassan Inamullah, learned counsel appearing for the plaintiff has not denied the fact that the plaintiff is a registered firm but has argued that since an issue was framed earlier by this Court on the question whether the plaintiff is a registered firm, the plaintiff is entitled to prove this fact at the time of recording of evidence and not at the time of hearing of these preliminary issues. He has referred to the case of Messrs Hoechst Pakistan Ltd. v. Co-operative Insurance Societies and others (1993 MLD 2464). In this reported case, a learned Division bench of the Lahore High Court held that since an issue was framed on the question of notice under section 70 of the Punjab Co-Operation Societies Act, 1925, the Court should have decided the suit after recording evidence on the issues already framed and further held that the Court committed an illegality in passing an order on miscellaneous application without affording an opportunity to the parties to produce evidence. In the present case, this Court granted hearing of the preliminary legal issues as provided under Order XV Rule 3, C.P.C. which provides that when the parties are at issues on some legal question which issue have been framed by the Court, and if the Court is satisfied that no further arguments or evidence is required upon such preliminary issues, the Court may proceed to determine such issues. On 31.8.1995 it was ordered in the presence of plaintiffs counsel that the parties should argue these two legal issues. No appeal was filed against this order which has attained finality and it is too late in the day for Mr. Hassan Inamullah to raise such objections. Therefore, the rule laid down in the case of Hoechst (supra) is not applicable in the against case. 7. The effect of non-registration of partnership firm was recently considered by a Division Bench of this Court in the case of Mst. Shaista Begum v. Government of Sindh and 2 others (1994 MLD 274) where it was held that in case of non registration of a firm, the partnership firm and its partners would suffer from legal disability in filing suits against parties and as against one another. Earlier, a full Bench of the Hon'ble Supreme Court also held in the case of Usman and others v. Hqji Umer and others (PLD 1966 S.C. 328) that section 69 of the Partnership Act, 1932 only bars a suit for enforcing a right arising out of a contract against either the firm or any past or present members of it or against any third party. Another Division Bench of this Court in the case of Province of West Pakistan and another v. M/s Asghar All Muhammad All & Company (PLD 1968 Karachi 196) held that section 69 of the Partnership Act, 1932 stands as a bar to filing a suit and that when a suit is filed in the name of a firm, it was for the plaintiff to establish that the bar did not operative. In the case of Abdul Majeed v. Riaz Brothers Commission Agents Hafizabad (1986 CLC 242), a learned Single Judge of Lahore High Court considered implication of this provision of law and held that the plaintiff should know the law that an unregistered firm could not sue even a third person and if such plaintiffs have withheld an information, the inference would be that they were trying to hoodwink the provisions of law. 8. Consequence of non-registration of a partnership firm and its entitlement to maintain a suit was considered in detail by a Division Bench of this Court comprising Mr. Inamullah and Mr. Sajjad Ahmad Jan, J. J. (as they then were) in the case of Messrs United Cotton Factory, Hyderabad v. Ahmad Khan (PLD 1960 Karachi 774) in the following words :- "The provisions of section 69 of the Partnership Act are mandatory and there is no power of condition vested in the Courts to grant to the defaulting firm in this respect any relief against the disability imposed by this section. The prohibition contained in the section is against the institution of the suit or the proceedings of the nature mentioned therein and its effect, therefore, has to be determined at the time of the institution of the suit or the proceedings. The section entails a disability on the part of a Court to take cognizance of the suit or proceedings from their very inception in the same way as it would not take the cognizance of a suit barred by limitation or of a suit suffering from a defect of jurisdiction in the form in which it is instituted. The view, which now firmly holds the field, is that the registration of a firm is a condition precedent to its right to institute a suit of the nature mentioned in section 69(2) of the Partnership Act and that a registration after the institution of the suit cannot cure the defect of non­ registration existing at the of the institution of the suit." 9. The defendant No. 1 in para (ii) of their written statement have clearly stated that the suit is barred in view of section 69 of the Partnership Act, 1932. Likewise, the defendant No. 2 in para (i) of its written statement has claimed that the plaintiff is not a registered firm and they are not entitled to sue and that the suit is liable to be dismissed. It was in view of this plea that the legal issues as to the maintainability of this suit on the question of section 69 was framed on 31.8.1995. Since then, till hearing of these two issues, the plaintiff had ample opportunity to rebut these allegations by producing certificate of registration. But I am unable to understand why certificate from Registrar of Firms was not produced even during hearing. The learned counsel for the plaintiff insisted that he will produce the required documents at the stage of evidence. In the circumstances, I am constrained to draw an adverse inference to the effect that the plaintiff is not a registered firm and, therefore, it cannot bring a suit in the name of partnership firm. 10. The other legal issue is that the plaintiff has failed to serve prior notice under section 70 of the Sindh Co-operative Societies Act, 1925 and, therefore, the plaint is liable to be rejected. In reply to this argument, Mr. Hassan Inamullah has referred to legal notice dated 6.6.1990 filed alongwith the counter affidavit of one Shaheen Ilyas, Honourary Secretary of defendant No. 1. This notice is addressed to the President of defendant No. 1. Mr. Hassan Inamullah has also referred to para 13 of the plaint wherein the plaintiff has stated that a letter was addressed through their lawyer to the defendants on 6.6.1990 claiming damages for mental tension and loss of market reputation etc. According to the learned counsel for the plaintiff, it is merely an omission that a copy of said legal notice dated 6.6.1990 was not filed and that the provision of section 70 of the Sindh Co-operative Societies Act, 1925 have been fully complied with. 11. Section 70 of the Sindh Co-operative Societies Act, 1925 creates a bar that no suit shall be instituted against a Co-operative Society or any of its officer in respect of any act touching the business of the society unless a notice in writing has been delivered to the Registrar of the Co-operative Societies appointed under the Act, 1925 and that two months time has passed after delivery of such notice. There is further requirement of this law that the plaintiffs should disclose in the said notice, the cause of action, the name, description and place of residence of the plaintiff and the relief which the plaintiff intends to claim. It is further envisaged in the section 70 of the Act, 1925 that the effect of delivering such notice shall be mentioned in the plaint. Notice dated 6.6.1990 referred to by Mr. Hassan Inamullah, Advocate does not fulfil the requirements of section 70 of the Act, 1925. The plaintiff has admitted in the plaint that the defendant No. 1 is a registered co­ operative Society and on its insistence the defendant No. 1 has filed copy of its bye laws in Court on 7.4.1996. 12. In the case of Metro Co-operative Housing Society Limited v. Bonanza Garments Industries Limited (1996 M.L.D. 5P3) I have considered the effect of non-service of notice and its non-disclosure in the body of plaint. After referring to the cases of Zia-ur-Rehman Alvi v. Messrs Allahabad Cooperative Housing Society Limited and 2 others (PLD 1995 Karachi 399), Muhammad Ali Memorial Co-operative Housing Society Ltd., Karachi v. Syed Sibtey Hasan Kazmi (PLD 1975 Karachi 428), Muzaffar Hussain and another v. Yousufand 4 others (PLD 1976 Karachi 1107), Farida v. rovinc Apartments Co-operative Housing Society and 2 others (1984 CLC 2914) and the case of Faqir Muhammad Daj Muhammad v. Merchentile Co-operative Bank Limited (AIR 1940 Sindh 143) this Court rejected the plaint on the grounds that no notice as provided under section 70 of the Sindh Co­ perative Societies Act was served prior to filing of the suit. 13. In the present suit, the plaint is silent whether any prior notice as provided under section 70 of the Act, 1925 was served. Notice dated 6.6.1990 referred by the learned counsel for the plaintiff cannot be treated as a notice under section 70 of the Act, 1925.1 am, therefore, of the considered view that the present suit is not maintainable in view of section 69 of the Partnership Act, 1932 as well as in view of section 70 of Sindh Co-operative Societies Act, 1925. In view of this legal position, this suit is dismissed with no order as to cost. (B.T). Order accordingly.

PLJ 1996 Karachi 874 PLJ 1996 Karachi 874 [Original Jurisdiction] Present: rasheed A. razvi, J. DILAWAR ALI KHAN through his legal heirs etc.-Plaintiffs versus Mrs. ZOHRA JAVED etc .--Defendants Suit No. 848 of 1986, dismissed on 30.5.1996. (i) Burden of Proof- — Benami transaction-Burden of proof in-After admission of PW that car was in the name of plaintiff and in absence of any ownership document burden was upon plaintiff to conclusively prove that it was a Benami transaction and plaintiff was Benamidar owner-Evidence of plaintiff is absolutely silent on this question-Another document brought by plaintiff which is a car hire contract which has not been denied by defendants-­ Held: This document gives a right as well as cause of action to plaintiff to file a claim but against deceased defendant. [P. 878] B (ii) Civil Procedure Code, 1908 (Act V of 1908)-- —O.VII R. 5 & 9(2)-Any statement recorded by Judge during course of inspection is of no evidentiary value unless person whose statement was recorded was subjected to cross-examination or opposite party had opportunity to do so-Held: This principle is equally applicable on question of admitting plaint as a piece of evidence. [P. 879] C (iii) Legal representative-- —Law is settled that if deceased has not left any estate and nothing has come into the hand of any heir or other person then he cannot be termed a "legal representative" and cannot be sued as such for a claim against deceased debtor nor a decree passed against a deceased judgment debtor be executed against him~Entire evidence of plaintiff is silent as to what estate/properties deceased had left or what estate defendants have acquired from their deceased husband or father-Petition dismissed. [P. 880] D & E (iv) Limitation- —Limitation-Determination of-Cause of action was firstly accrued on 11.2.1985-Plaintiff on 18.3.1993 filed an application under Order I Rule 10 CPC praying that she be impleaded as co-plaintiff since car in question was purchased as Benami in her name-Even if for reckoning period of limitation date of application is accepted, which is 18.3.1993, it appear that application was filed seven years after cause of action was lastly accrued in month of February, 1986-Held: Claim is barred by Limitation Act and petitioner is not entitled to any relief. [P. 878] A Mr. Mushtaq Memon, Advocate, for Plaintiffs. Mrs. Zhora Javaid, Defendant No. 1, declared Ex-parte Defendant No. i and 3 through Mr. Muhammad Saleem, Advocate. Date of hearing: 14.5.1996. judgment Initially plaintiff has filed this suit on 28th September, 1986 for recovery of Rs. 4,10,000/- as well as for mesne profit against the defendants. On 18.2.1990, defendant No. 1 was declared exports and the Nazir was appointed guardian ad-litem of two minor defendants, namely, Masooma and Ali Kachelo, who is now being represented by Mr. Muhammad Saleem, Advocate. On 14.3.1993, the plaintiff was allowed amendment in the plaint and the plaintiff No. 2, Mrs. Tahira Dilawar was also allowed to be joined as plaintiff No. 2 subject to the objection of the defendants Nos. 2 and 3. Accordingly, amended plaint was filed on 2.5.1993. Present controversy revolves against the present defendants arising out of last amended plaint. 2. The case of the plaintiffs is that plaintiff No. 1 is a businessman and is running a business of car rental under the name and style of 'Real Motors' and that the plaintiff No. 2 is the wife of plaintiff No. 1. That the defendants are legal heirs of Javaid Ahmad Kachelo, who on or about 11-2-1985 hired a car make Toyota Corolla, fully loaded valuing Rs. 1,35,OOO/- on rental from the plaintiff No. 1. It was agreed that the rental of the car was Rs. 4.000/- per day. On 8.6.1985, deceased Javaid Ahmed Kachelo issued a cheque of Rs. 45,000/- towards the rental value which was dishonoured. Again, on the insistance of plaintiff No. 1 deceased Javiad Ahmed Kachelo issued another cheque for the same amount which was honoured and adjusted against the outstanding car rental. 3. It is further claimed by the plaintiff that as a result of negligence and reckless driving by the deceased Javaid A. Kachelo on 23-12-1985, an accident was caused which damaged the car extensively. That on the same day at about 1.30 p.m. the said deceased left the car with M/s Glaxy Auto Works for repair but did not inform M/s Glaxy Auto Works that the car belongs to a rental company. 4. That the said Javaid died in the month of January 1986 leaving the above said car with Messrs Glaxy Auto Works, who came to know in the month of February 1986 that the deceased has died and, therefore, they approached plaintiff in the month of February, 1986. Plaintiffs have filed a Car Hire Agreement, Ex. P/l and have based their case on clause 13 of the said agreement. In view of the above back-ground, the plaintiff has prayed for the following relief: - "(i) that the defendants do pay to the plaintiff a sum of Rs. 1,35,000/- towards damages equivalent to the valuation of the said car or deliver back the car in its original condition and a sum of Rs. 2,75,000/- being the rental of the car upto the date of filing of the suit after adjustment of Rs. 45,000/- paid by the deceased to the plaintiff No. 1 in all a sum of Rs. 4,10,000/- with mark up at bank rate from the date of institution of the suit till realisation thereof. (ii) the Defendants do pay to the plaintiffs rental of the car at the rate of Rs. 400/- per day from the date of institution of the suit till realisation thereof. (iii) costs of the suit. (iv) any other/better/further relief/reliefs that this Hon'ble Court may deem fit and proper in the circumstances of the case." 5. The minor defendants have filed their joint written statement, raising several preliminary legal objections. They have denied major portion of the plaint for want of knowledge. They have also alleged that the suit is without cause of action as far as minor defendants are concerned and have prayed for dismissal of the suit. The defendants No. 1 who is widow of deceased as well as mother of minor defendants was declared exparte. 6. On 22.12.1991, following consent issues were adopted by the Court :- (a) Whether the deceased Javed Ahmed Kachelo hired a car on the terms and conditions specified in the car hire agreement? (b) Whether deceased Javed Ahmed Kachelo owned Rs. 4,10,000/- as claimed, to the plaintiff? (c) Whether according to hire agreement, defendants are jointly and/or severally liable to pay the amount of claim. If so to what extent? (d) What should the decree be? 7. In support of their case, plainiffs have examined plaintiff No. 1, as Exhibit 5, PW 2 Noor All Khan, as Exhibit 6 and PW 3 Syed Rehman Rahim as Exhibit 7. No evidence was led by the defendants. 8. At the very outset, Mr. Muhammad Saleem, learned counsel for the minor defendants, has raised a legal objection on the maintainability of this suit. According to Mr. Muhammad Saleem, since the car in question was admittedly in the name of Mst. Tahira Dilawar, who was impleaded as plaintiff No. 2 vide this Court order dated 25.4.1993 after her claim became time barred. He has referred to Section 22 of the Limitation Act, 1908, which reads as follows:- "22. Effect of substituting or adding new plaintiff or defendant: (1) Where, after the institution of suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him be deemed to have been instituted when he was so made a party. (2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of suit or where a plaintiff is made a defendant or , a defendant is made a plaintiff." 9. In support of this case, Mr. Muhammad Saleem, Advocate for minor defendants, has referred to the cases of Hayat & others v. Amir (PLD 1982 SC 167), Mehtab Beg & 2 others v. Ghulam Muhammad & others (PLD 1975 Lahore 580) and Muhammad Alt H. Alia Rakhya v. Piarali H. Ladha Bhai & another (PLD 1968 Karachi 345). He has also referred to the case of Chand Oil Mills v. Haji Muhammad Zakaria (PLD 1958 Karachi 510), which was over-ruled by the Hon'ble Supreme Court in the case of Hayat & others. 10. The question before the Hon'ble Supreme Court in the case of Hayat & others (Supra) was whether a new defendant is deemed to have been made a party to the suit on the date when an application to implead him is filed or on the date when such an application is finally allowed by the Original or the Appellate Court. Section 22(1) of the Limitation Act was also interpreted in the following words:- "7. Now according to this section when a new person is substituted or added as a party in a suit already pending, then the suit as regards him shall be deemed to have been instituted only from the point of time when he is so made a party. In other words for purposes of determining whether the suit qua him is barred by limitation, the time shall be computed as if the suit had been filed by him (if he is a plaintiff), or against him (if he is a defendant), on the date on which he was 'so made a party'. The word 'so' used here evidently refers to his being made a party by 'substitution' in place of another party or by 'addition' as a new party." 11. The rule laid down by a Division Bench of this Court in the case of Muhammad Ali H. Alia Rakhya (supra) is of no help to the defendants as in that suit one of the defendants was transposed as co-plaintiff and, therefore, it was held that Section 22 of the Limitation Act is not applicable as it is what envisaged in sub-section 2 to Section 22 of the Limitation Act. In the case of Mehtab Beg & 2 others, a learned Single Judge of Lahore High Court held that when parties are added by the Court after the institution of a suit, Section 22 of the Limitation Act provides "that the date when they are added is deemed to be date of institution of the suit so far as they are concerned for purpose of limitation and the rights which they may have acquired under the Limitation Act are, therefore, sufficiently safe-guarded. 12. The cause of action in the original plaint as well as in the last amended plaint filed after impleading Mst. Tahira Dilawar as plaintiff No. 2 disclosed that was firstly accrued on 11.2.1985 when deceased Javaid A. Kachelo, hired the said car and again in February, 1986 when the plaintiffs came to know about the death of the deceased. Admittedly the car was in the name of plaintiff No. 2, who for the first time on 18.3.1993 filed an application under Order 1 Rule 10 CPC praying that she be impleaded as coplaintiff since the car in question was purchased by the plaintiff No. 1, Benami, in her name for doing business of renting out cars. This application was granted by this Court order dated 25.4.1993. Even if for reckoning the period of limitation the date of application is accepted, which is 18.3.1993, it appears that this application was filed seven years after the cause of action was lastly accrued in the month of February, 1986. In back-ground of the above narrated facts. I am of the view that as far as plaintiff No. 2 is concerned, her claim is barred by the Limitation Act and she is not entitled to any relief. 13. PW 1 Dilawar All Khan, who is plaintiff No. 1, was examined as Exhibit 5. In his entire examination-in-chief he has not said a single word about the ownership of the car in question nor in his evidence he has anywhere stated that the plaintiff No. 1 was Benamidar owner or that the plaintiff No. 2 was only an ostensible owner. He was examined and crossexamined on 13.1.1992 before the Commissioner. He has not filed the ownership documents of the car in question. 14. PW 2, namely, Noor Ali Khan, who is son of plaintiffs, supported the evidence of plaintiff No. 1, who has added that the said car was in the name of his mother i.e. plaintiff No. 2 and that it was purchased from the funds, provided by his father. It is interesting to not that this witness has lso not produced any document to show that the car in question belongs to the plaintiff No. 2 Even in the legal notice dated 28.5.1986, addressed to defendant No. 1 and her deceased husband (Exhibits P/5 & P/6), no where the plaintiff has said that the plaintiff No. 2 was ostensible owner. After admission of PW 2 that the car was in the name of plaintiff No. 2 and in absence of any ownership documents burden was upon the plaintiff to conclusively prove that it was Benami transaction and the plaintiff No. 1 was the Benamidar owner. Evidence of'plaintiff No. 1 is absolutely silent on this question. However, there is another document brought by the plaintiff which is a car hire contract Ex. P/l and (Ex. 6/1) which has not been denied by the defendants. In my view, this document gives a right as well as cause of action to the plaintiff No. 1 to file a claim but against deceased defendant. 15. The most crucial question, however, is whether any amount is payable by the defendants as the legal representatives of the deceased Javaid Ahmed Kachelo. Nowhere in the evidence of the plaintiff No. 1 namely Dilawar Ali Khan it was stated that the deceased Javaid Kachelo has left any movable or immovable properties covering the amount of their claim or that the defendants have acquired certain movable and immovable properties from their deceased predecessor. Evidence of the remaining plaintiffs witnesses is also silent on this point No doubt, in para 2 of the plaint an attempt was made to show that deceased had left some estate but this has been denied by the defendants. The plaintiff was required to prove through evidence that some part of estate/properties of the deceased came into the hands of the defendants. The defendant No. 1 is exparte while minor defendants are being represented by Nazir of this Court who was appointed guardian ad-litem for these two minor defendants. In these circumstances, it is the duly of the Court to consider the interest of the minors as well as absent defendants. With this view, I have scrutinised the plaintiffs evidence in detail. (For any reference, see the case of F. Kanematsu & Co. Ltd. v. S. Nazir Hussain Puri (PLD 1957 Karachi 832.). In absence of any evidence to this effect, I am of the view that the suit is liable to be dismissed. 16. The pleadings have never been treated as part of evidence. An attempt was made by Mr. Muhammad Salem, Advocate for the minor defendants to rely upon their written statements. It was argued by Mr. Mushtaque Memon that a statement not verified on oath could not be treated as evidence and that it could not be accepted. He has rightly referred to the cases of Muhammad Yousuf Ishaqui v. Abdul Majid Khan and 5 others (1984 CLC 243), Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 S.C. 25), Muhammad Nawaz v. Jiand Rai and 2 others (1981 CLC 867), and Nazir Ahmed Khan and 2 others v. Muhammad Ashraf Khan and 3 others (PLD 1975 Karachi 598). In the last reported case, it was held by a Division Bench of this Court that, "as a rule pleadings are not evidence by themselves." In the case of Muhammad Nawaz (supra) another Division Bench of this Court has held that, "any statement recorded by Judge during course of inspection is also of no evidentiary value unless the person whose statement was recorded was subjected to cross examination or the opposite party had opportunity to do so." I am of humble view that this principle is equally applicable on the question of admitting plaint as a piece of evidence. In the instant case, the plaintiffs were also required to comply with the mandatory requirements of Rule 5 and Rule 9(2) to Order VII, C.P.C. in their plaint. 17. My above view is supported by a judgment of this Court in the case of Messrs Industrial Development Bank of Pakistan v. Mst. Roqaiya Begum and others (1986 CLC 1592). In this reported case, one of the defendant died and his legal heirs were brought on record. Accordingly the issues settled earlier were re-framed and one of the issue was:- "What amount, if any, is payable by the defendants singly or jointly to the plaintiff?" It was contended by the defendants in the reported case that the legal heirs cannot be held liable to the decretal amount as they have not inherited any property from the deceased defendant. It was observed by a learned Judge of this Court Mr. Saleem Akhtar, J. (as his Lordship then was) that except this ssertion no further arguments were advanced to illuminate this aspect of the case and that no residence was on record to establish that the defendants have inherited any property from their predecessor defendant. The learned Judge after referring to Section 2(11) C.P.C. and the cases reported as Muhammad Iqbal and 2 others v. Ghulam All Shah (PLD 1975 Lahore 1205), Dr. Arshad Mahmood v. Dr. Mumtaz Hussain (PLD 1974 Lahore 312), Jed Kishen Das v. Karimuddin and another (AIR 1939 Lahore 321), Shabir Hussain v. Farzand Hussain (AIR 1938 P.C. 80) and several other cases from the Indian jurisdiction, came to the following conclusion:- _ "The law permits that if a person against whom claim is made dies before institution of the suit then for such claim suit can be filed against those who are in possession of the estate or property of the deceased or represent it From the definition it is clear that unless it is established that the person sought to be .joined or sued as legal representative of a deceased person is in possession or has inherited the property of the deceased he cannot be termed as legal representative of the deceased. This interpretation finds support from the subsequent provisions ~ of the Code of Civil Procedure, namely, sections 50, 52, 53 and 146 Therefore, a person as legal representative can be charged with liability only if the property of the deceased has come in his hand and he has not unduly disposed of or applied such property." (Underlining is mine.) 18. The suit in the reported case was dismissed with no order as cost by the learned Single Judge of this Court with the following observation:- "The law is well-settled that if the deceased has not left any estate and nothing has come into the hand of any heir or other person then he cannot be termed a 'legal epresentative' and cannot be sued as such for a claim against the deceased debtor nor a decree passed against a deceased judgment debtor be executed against him." 19. In the present suit the entire evidence of the plaintiff is silent as to what estate/properties the deceased had left or what estate the defendants have acquired from their deceased husband or father. Result of the above discussion is that this suit is dismissed with no order as to cost. (K.K.F.) Petition dismissed.

PLJ 1996 Karachi 881 PLJ 1996 Karachi 881 Present: majida razvi, J. CENTRAL COTTON MILLS LTD. and 2 others-Ptitioners Versus NAVEED TEXTILE MILLS LTD. and another-Respondents Judicial Misc. No. 51 of 1993, accepted on 21.11.1995. (i) Companies Ordinance, 1984 (XLVII of 1984)-- —S. 158(3) and 178-Grievance is that no individual notices were served with all directors-No supporting material is on record to show that individual notices were sent to all directors/shareholders as required under section 158(3) of Companies Ordinance-Law has provided penalty for non compliance of provision of S. 178-Held: Compliance of provisions of law is mandatory. [P. 887] A (ii) Companies Ordinance, 1984 (LXVII of 1984)-- —S. 158(3)--Adjournment of Annual General Meeting-Whether service of individual notice necessary & whether failure to comply with requirements of law renders such meetings invalid-Article 74 of Memorandum of Article of Association provides that in case meeting is adjourned for more than fourteen days notice be set as in case of original meeting-No such notice was given-Requirements of provisions under Companies Ordinance are mandatory-Held : Proce'edings of meetings are invalid. [Pp. 888 & 889] C, D & E (1962) 1 All England Law Report 26. (iii) Proviso-- —-It is well established principle of law that a proviso has to be read cautiously as it cannot be extended to defeat the parent provision itself. [P. 888] B Mr. Muhammad Mi Sayeed & Mr. Khirat H. Shamsi, Advocates, for Petitioners. Mr. Munib Akhtar, Advocate, Advocate, for Respondents. Date of hearing: 21.11.1995. judgment These two petitions have been filed under Section 161(8) of the Companies Ordinance, 1984. The petitioners and Respondent No. 1 company are the same in both the petitions. The Respondent No. 1, Naveed Textile Mills Limited, is a listed public limited company incorporated under the Companies Ordinance, 1984 with an authorised Share Capital of Rs. 30,000,000/- (Rupees Thirty million) divided into 3,000,000/- shares of Rs. 10/- each. The petitioners have more than 10 percent of voting powers in the respondent company and as such competent to file the petition. The Respondent No. 2 and six others were elected as directors of the Respondent No. 1 Company on 8.3.1990 and were to hold office for three years, i.e. from 1.4.1990 to 31.3.1993. The petition No. 51 of 1993 has been filed for declaration that the proceedings of Annual General Meeting (AGM) held on 29.6.1993 be declared as invalid and to direct the Respondents to hold fresh AGM in accordance with law and to appoint a neutral person as Chairman for presiding the AGM. Further that the Respondents be restrained to implement the resolution allegedly passed in the said AGM. The AGM held on 29.6.1993 was convened to transact the following business:- 1. To confirm minutes of the last Annual General Meeting held on April 30,1992. 2. To receive, consider and adopt audited accounts of the Company for the year ended September 30, 1992 together with the reports of the Directors' and Auditors" thereon. 3. To elect Directors of the Company for the period of next three years under Section 178(1) of the Companies Ordinance, 1984. The Board of Directors in their meeting held on May 9, 1993 has fixed the number of Directors to be elected as seven. The names of retiring Directors are:- (1) Mr. Gulzar Ahmad, (2) Mrs. Almas Nasreen, (3) Mr. Tanveer Ahmed, (4) Mrs. Memoona Tanveer, (5) Mr. Naveed Ahmed, (6) Maj. (Retd.) Ejaz Nabi, (7) Mr. Rehmat Elahi. 4. To appoint Auditors and to fix their remuneration. 5. To consider any other business with the permission of the Chair. J. Misc. No. 67 of 1993 has been filed for declaration that the proceedings of adjourned AGM held on 30.8.1993 be declared as invalid and to direct the Respondents to hold fresh AGM in accordance with law. Further, to appoint a neutral person as Chairman for presiding the AGM. Mr. Muhammad Ali Saeed, the learned counsel for the petitioners submitted that the petitioners' grievance in both the petitions is that they were not served with the individual notices of the AGM allegedly held on 29.6.1993 but became aware of the same from the published notice in the daily 'Business Recorder' dated 9.6.1993. The notice of this AGM, as per Memorandum and Articles of Association and Law, should have been served on the petitioners/share holders at least 21 days before the fixed date of the meeting while the publication appeared only 20 days before the said meeting. It is also submitted that the notice dated 8.6.1993, calling for the AGM was defective as it did not include the election of the Chairman of the Meeting to be held, and no copies of balance sheet, profit and loss account and the Auditors' Report were circulated to the members alongwith the said notice which is statutory requirement under Section 233(4) of the Companies Ordinance, 1984. Further that the meeting was held under the Chairmanship of an unelected Chairman, and the objections raised by the petitioners in this respect were rejected. Further that the minutes of the meeting held on 30.4.1992 were wrongly recorded and inspite of the objections raised by the petitioners, the same were confirmed. It was further argued in respect of J. Misc. 67 of 1993 that there were gross irregularities in the proceedings of the AGM of the Respondent No. 1 and the petitioners, before holding of the impugned AGM, had filed objections in J. Misc. 47 of 1993 and also a miscellaneous application, being CMA No. 1173 of 1993, in respect of the election of the Directors. On the said application, the Court had adjourned the AGM fixed for 29.6.1993 to 18.8.1993 and subsequently in pursuance of the order dated 26.8.1993 it was agreed by the parties that no prejudice will be caused to the parties if meeting is held as scheduled on 30.8.1993 provided that the result of the meeting be with-held. As such the meeting was held as scheduled subject to the decision in J. Misc. No. 47 of 1993. However, since the Respondent No. 1 company is listed on the Karachi Stock Exchange, it was necessary that the respondents should have issued notice of the adjourned meeting to the petitioners and other members/share holders of the company at least twenty one days before the date fixed for the adjourned meeting. Further that since the meeting for the election of the Directors was adjourned to 18.8.1993 and again to 30.8.1993, under Article 74 of the Articles and Memorandum of Association of the Respondent No. 1, a notice should have been sent as in the case of an original meeting. No such notice was issued by the respondents intentionally to deprive the petitioners and other members of their participation and of exercising their voting rights and the objection raised by the petitioner in this regard were rejected by the respondents. The adjourned meeting was also presided over by an unelected chairman namel Mr. Tanvir Ahmed and the demand of the petitioners to elect a chairman was rejected. On the other hand, Mr. Munib Akhtar, the learned counsel for the Respondents contended that the individual notices were issued according to the law and Memorandum and Articles of Association of the Respondent No. 1 and that the petitioners have failed to produced any proof contrary to this contention. Further, that the petitioners fully participated in the meeting exercising effectively all their rights. His contention was that for the sake of arguments even if it is accepted that the notice was a day short of 21 days, it has caused no prejudice to the petitioners and that it was not a material irregularity at all. In regard to the next point, Mr. Munib Akhtar contended that although the petitioners have grievance that the accounts, balance sheets etc. were not circulated in accordance with Section 233(4) of the Companies Ordinance, 1984 but they have annexed balance sheet and Annual Report of their chartered accountant which was sent to all its members individually. Even if it is presumed that the provisions of section 233(4) were not complied with by the Respondents, the petitioners also failed in performing their statutory duty to raise objections in regard to confirmation of minutes of earlier meeting, as such the allegation on their own showing is not proved. He further contended that the chairman during the meeting neither exercised power under Article 71 of a casting vote nor under Article 74 to adjourn the meeting and since order passed in Suit No. 227 of 1992 neither granted powers nor took away powers vesting in the plaintiff and defendants no illegality was committed or any prejudice was caused to the petitioners. Even if the meeting was irregular since the petitioners are praying for discretionary relief, they have to prove and satisfy the Court that any prejudice has been caused to them. To understand the controversy it will be beneficial to reproduce Section 161 (8) of the Companies Ordinance, 1984, which reads as under:- "161. Proxies. (8) The Court may, on a petition by members having not less than ten per cent of the voting powers in the company that the proceedings of a general meeting be declared invalid by reason of a material defect or omission in the notice or irregularity in the proceedings of the meeting, which prevented members from using effectively their rights, declare such proceedings or part thereof invalid and direct holding of a fresh general meeting: Provided that the petition must be made within thirty days of the impugned meeting." There is no dispute as to the period of 30 days wihin which these petitions were filed. Now, coming to the sub-section itself, the issue to be determined is if there was a material defect or omission in the notice or irregularity in the proceedings of the meeting which prevented the members from using their rights effectively. It is an admitted position that the respondents, though may have become aware of the proposed meeting through publication of notice in the daily 'Business Recorder', attended the said meeting and participated in the proceedings. According to the contention of Mr. Muhammad Ah' Sayeed, the meeting itself is defective as it did not comply with the statutory period of 21 days. His further contention was that the ^ meeting was defective as there was no Board of Directors existing at the time and the care-taker Board of Directors could not conduct the proceedings without first electing a chairman for the proposed meeting. Mr. Munib Akhtar, the counsel for the respondents, did not deny that the term of the Board of Directors expired on 31.3.1993 and further that no chairman was elected for the proposed meeting. But his contention was that even if irregularity was committed, no prejudice was caused to the petitioners as they participated and effectively used their rights during the meeting. It may be mentioned here that the law is enacted and rules are framed to be complied with, and not to be violated. The contention of the counsel for the respondents that even if any irregularity was committed it caused no prejudice to the petitioner, is not tenable. It is pertinent to mention here the report of the Official Assignee, who was appointed by a consent order dated 27.6.1993 passed in J.M. No. 47 of 1993, to hold the General Body Meeting under his supervision. According to his report dated 31.7.1993, the objection of the petitioners in regard to the election of a chairman for the General Body was rejected by Mr. Gulzar Ahmed and Mr. Tanvir Ahmed on the ground that it was not necessary. Further, that out of 23 ballot papers, 7 ballot papers were rejected which included that of Mr. Munir Ahmed and the Central Cotton Mills and that inspite of several reminders by the Official Assignee, the Minutes of the meting were not made ready by the respondents. He further submitted that inspite of the fact that Punjab Co-operative Board for Liquidation had issued three proxies in favour of Mr. Gulzar Ahmed and Mr. Munir Ahmed during the meeting of 29.7.1993 the proxy of Mr. Gulzar Ahmed was allowed while that of Mr. Munir Ahmad was disallowed. The Official Assignee has also pointed out that Firdous Spinning and Weaving Mills Limited is under Liquidation and the Official Assignee, who is also Official Liquidator in respect of the said company, informed Mr. Tanvir Ahmed but inspite of this, a proxy was issued in favour of Mr. Tanvir Ahmed. The above facts indicate the mala fides of the action of the respondents viz-a-viz the petitioners. In my opinion the genesis of both these petitions and the one which already stands disposed of, lies in the transfer of 517,400 shares of the petitioner No. 1 in favour of the respondent No. 1 for which a suit, being suit No. 227/1991, is already pending in this Court. All the disputes which have arisen from time to time resulting in the different petitions now pending, can be resolved one way or the other, if Suit No. 227 of 1991 is decided. Mr. Muhammad Ali Sayyeed has relied on the following cases:- 1. (1988) 64 Company Cases 19, 2. (1937) 7 Company Cases 22, 3. (1949) 19 Company Cases 175, In the case of Hector Whaling Limited (1937) 7 Company Cases 22, it was decided that the phrase 'not less than 21 days' notice" means 21 clear days exclusive of the day of the service and exclusive of the day on which the meeting is to be held. In the case of Nagappa Chettiar v. Madra Race Club (1949) 19 Company Cases 175, it was observed that the period of 21 days will be excluding the date of service of notice and the date of the meeting. The other case supporting the same view are Col. Kuldip Singh Dhillon and others versus Paragon Utility Financier's Private Limited and others (1988) 64 Company Cases 19 and Calcutta Chemical Company Limited vs. Dhiresh Chandra Roy (1985) 58 Vol. Company Cases 275. As against the above judgments Mr. Monib relied on the case of Abdul Jabbar vs. Haryana Asbestos Cement Industries (1987 CLC 726) wherein it was observed that "Legislature appears to have consciously specified the terminus qua of notice from date of its sending and not from date of its delivery or receipt. While the wording of Section 171(1) of the Indian Companies Act 1956 are "A general meeting of a company may be called by giving not less than twenty one days notice in writing." The wording of Section 158 (3) of the Companies Ordinance 1984 is as under :-- "158(3) The notice of an annual general meeting shall be sent to the share-holder at least twenty-one days before the date fixed for the meeting and, in the case of a listed company, such notice, in addition to its being despatched in the normal course, shall also be published at least in one issue each of a daily newspaper in English language and a daily newspaper in Urdu language having circulation in the Province in which the stock exchange on which the company is listed is situate." Thus it is clear that the words in the Sub-section are "shall be sent to the share-holders at least twenty one days before the date fixed for the meeting. But Article 65 of the Article of Association of Respondent No. 1 is "not less than twenty one days notice (exclusive of the day on which the notice is served or deemed to be served but inclusive of the day for which notice is given specificity the place, day and hour of the meeting...." The workings of these sections explains the difference of opinion in the different judgments given by the Courts in India and Pakistan . In the present case though no evidence has been produced by the respondents in support of their contention but it can be presumed that the notice published in newspaper must have been sent a day earlier for publication. As such in my opinion the requirement of Section 158(3) were partly complied with as far as the publication is concerned. But as I have already said herein above that no supporting material is on record to show that the individual notices were sent to all the directors/share-holders as required under Section 158(3) of the Companies Ordinance. The law has provided penalty for non compliance of any of the provisions of Section 178 and as such the compliance is mandatory. The next contention of Mr. Sayeed was that the notice did not contain the election of chairman to preside over the proposea meeting. Since the meeting was presided over by a non-elected chairman the business conducted during the meeting was invalid. He relied on the case of Satesh Chandra Banik and others vs. Dacca Jute Mills Limited (PLD 1968 Dacca 610) where a similar situation arose and it was held that:- "The affidavit by respondent No. 2 clearly avoids the specific denial of the statement of the petitioners that petitioner No. 2 proposed that the chairman be elected for the purpose of conduct of the Annual General Meeting and therefore I am convinced that the statement made by the petitioners is true and in these circumstances respondent No. 2 could not have taken the chair by virtue of the provisions of Article 78. Therefore he could not automatically take the chair under the provision of the Articles 78 of the Articles of Association. I therefore, hold that the impugned General Meeting having been presided over by person not entitled to do so was not a valid Annual General Meeting." Section 177 of the Companies Ordinance provides for the retirement of directors who are subject to election and thereafter follow the procedure as laid down under Section 180 of the Companies Ordinance. The provisos to this section are:- "Provided that the directors so retiring shall continue to perform their functions until successors are elected: Provided further that the directors so continuing to perform their functions shall take immediate step to hold the election of directors and in case of any impediment report the circumstances of the case to be registrar within fifteen days of the expiry of the term laid down in section 180." Thus it is clear that the proviso to Section 177 direct to take steps immediately to hold the elections of the directors or if there are any impediments the same should be communicated to the Registrar within fifteen days. No such plea is taken nor the Registrar was informed. It is well established principle of law that a proviso has to be read |i cautiously as it cannot be extended to defeat the parent provision itself. As Iheld in the case of Mst. Surayya Begum vs. M.C.B. Limited (PLD 1990 Lahore page 4). "A proviso to any parent provisions has to be read very cautiously and the intended whittling effect thereof cannot be so extended as to defeat the provision itself inasmuch as it is not to be presumed that the Legislature intended to take away by one hand through a proviso what it has basically conferred through the other hand by the parent provision." In the case of Mrs. Anathalakhnl Ammal vs. Teffeis Barytes Asbestos and Paints Limited (1951) 21 Company Cases 294, it was observed that "there is, besides this, enough on the record to convince us that there are factions among the share holder of the Company and it was directed that meeting be conducted by the person to be appointed by the Court who will preside.as its Chairman and shall scrutnise the proxy which were duly deposited in time." In the present case also there are two groups involved in the tussle to get the controlling power and oust the other one and unfortunately they are closely related family members. In such a situation it is further obligatory that all legal requirements are complied with. Article 74 of the Memorandum and Article of Association provides that in case a meeting is adjourned for more than fourteen days a notice be sent as in the case of original meeting. No such notice was given. A notice of a adjourned meeting is also provided under Rules of Stock Exchange. It can be argued again that the petitioners were party to the proceedings when the meeting was adjourned/deferred by the Court. But where are other share­holders also who should have been served with such an adjourned date of the meeting. In the case of Re West Canadian Collurias Ltd. (1962) 1 All England Law Report-26. Notice of the meeting had been given for the purposes of Section 141(2)(5) of the Companies Act 1948 to all the share-holders except, by inadvertence, to nine share holders. It was held that "there could be no meeting because ii is well settled as regards a general meeting that failure to give notice to a single person entitled to receive notice, renders the meeting a nullity." The meeting on 30.8.1995 was admittedly presided over by Mr. Tanvir Ahmed who himself was a candidate. In view of the contention raised by the petitioner and keeping in view of Official Assignee's report the characterstics of the meetings which was scheduled for 29.6.1993 and was adjourned to 30.8.1993 are as follows. There is not enough proof that the notices were despatched individually to,all ;the directors/share-holders as provided under Section 233(4) of the Companies Ordinance 1984. The agenda prepared for the meeting did not included the election of the Chairman for the proposed meeting. The director's term though had expired on 31.3.1993 but no steps were taken for the election as required under Section 177 and 178(3). The meeting was held under the Chairmanship of an un-elected Chairman. Notice of the adjourned meeting was not issued as provided under Article 74 of the Articles of Association of the Respondent Company and Rules of the Karachi and Lahore Stock Exchange. In my opinion, since the requirements of the provisions under the Companies Ordinance are mandatory, the non-compliance of the same render the meetings held on 29.6.1993 and 30.8.1993 invalid. On my query the learned counsel for the Respondent has stated that although election were held on the date as directed but the results were withheld as per the order of the Court, and since then no orders have been passed, the same directors whose term had expired on 31.3.1993 are continuing to hold the office. In view of the circumstances the proceedings of meeting held on 29.6.1993 and of adjourned meeting held on 30.8.1993 are declared to be invalid and the respondents are directed to immediately take steps in accordance with the Companies Ordinance and Memorandum and Article of Association to call for the Annual General Meeting immediately. The Official Assignee is appointed to conduct the said meeting under his supervision. The two Judicial Misc.No. 5/93 and 67/93 stand disposed of in terms of the above order. (B.T.) Orders accordingly.

PLJ 1996 Karachi 890 PLJ 1996 Karachi 890 Present: abdul majid khanzada, J. KARACHI DEVELOPMENT AUTHORITY-Applicant Versus DR. HASSAN UD DIN AHMAD & another-Respondents Civil Revision No. 249 of 1990, decided on 13.6.1996. (i) Civil procedure Code, 1908 (V of 1908)-- —S. 115--Allotment of plot by K.D.A. during existence of earlier allotment-­ Alternate solution to accommodate earlier allottee when new allottee had no knowledge of earlier allotment and raised huge construction on plot-­ In order to do complete justice, grant of alternate plot to plaintiff/respondent of same area and at old rate at which disputed plot was allotteed is only solution-K.D.A. is solely responsible in creating above problem~K.D.A. directed to provide alternate plot at old rate-In case Applicant (KDA) fails to do so, plaintiff/respondent shall be entitled o recovery of amount of current market value of plot in dispute, to be determined by Nazir of this court, in execution of this judgment-Orders accordingly. [P. 895] A Dasti Muhammad Ibrahim, Advocate, for Applicant. M/s Malik M. Saeed and M. G. Dastagir, Advocates for Respondents. Date of hearing: 26.5.1996. judgment This Revision Application is directed against the Judgment/Decree passed by the learned 1st Additional District Judge, Karachi (East) dismissing C.A. No. 20 of 1988 preferred against the Judgment/Decree passed by the learned III Senior Civil Judge, Karachi (East) decreeing F.S. Suit No. 2402 of 1978. The Respondent No. 1 filed a suit against the applicant and the Respondent No. 2 with the following prayers. (a) The lease deed executed by the defendant No. 1 in favour of the Defendant No. 2 in respect of the Plot No. D-3/17, Scheme No. 24, Gulshan-e-Iqbal measuring 1083.33 Sq. Yds. or there above be adjudged void and cancelled; (b) That it may be declared that the plaintiff is entitled to get lease in his favour for the land bearing Plot No. D-3/17, Scheme No. 24 Gulshan-e-Iqbal area 1083. 33 Sq. Yds. which was allotted to the plaintiff by the defendant No. 1 and decree accordingly be passed; (c) That a decree for physical possession against the defendants ordering therein to put the plaintiff into physical possession of land on Plot No. D-3/17, K.D.A. Scheme No. 24, Gulshan-e-Iqbal, Karachi, area 1083.33 Sq. Yds. may be passed; (d) That the costs of the suit may be awarded; (e) That any other or further relief which the Honourable Court deems fit and proper may be awarded. In the above said suit, the Plaintiff/Respondent No. 1 stated that he was allotted Plot No. D-3 Block-17, Scheme No. 24, Gulshan-e-Iqbal, Karachi measuring 1083.33 Sq. Yds through ballot by the KDA (Defendant No. 1) vide allotment Order No. KDA/LAND/GUL/D-3/17/535 dated 24.2.1972. He deposited the 2nd instalment so also the difference due to excess area beyond 1000 Sq. Yds. demanded by the KDA, but inspite of his repeated demands orally and in writings the possession of the said plot was not handed over to him. In 1977 KDA informed the plaintiff that since there is a dispute, further action with regard to the said plot has been stopped. The plaintiff came to know that the KDA has illegally delivered the possession of the said plot to the defendant No. 2 and subsequently executed lease in his favour as disclosed by the K.D.A. in its written statement, as such amended plaint was filed. The allotment of the plaintiff was not even cancelled, hence a notice under Article 131 of K.D.A. Rules and Regulations was served on K.D.A., to which evasive reply was given, hence this suit. The defendant No. 1 (K.D.A.) contested the suit and filed his written statement, while the defendant No. 2, though served through publication, remained absent and as such the suit proceeded exparte against him. The defendant No. 1 (KDA) in his written statement admitted that allotment of the disputed plot to the plaintiff and payment of 2nd instalment and the difference due to increase in the area i.e. from 1000 to 1083.33 Sq. Yds. so also the demands made by the plaintiff for delivery of the possession. It is also admitted that the disputed plot was subsequently leased out to the defendant No. 2, as for sufficient long time, the plaintiff did not turn up and slept over the matter. It is also stated that the plaintiff is neither entitled to the possession of the said plot nor execution of its lease in his favour, as the lease is already executed in favour of the defendant No. 2 and the possession is also with defendant No. 2. It is also stated that since the plaintiff was allottee, no legal right is created in his favour, hence the suit is liable to be dismissed. On the pleadings of the parties the trial Court framed the following issues:- (1) What is the legal effect of allotment of Plot No. D-3 Block- 17, Scheme No. 24, Gulshan-e-Iqbal, Karachi in favour of the plaintiff and payment of two instalments of its value by the plaintiff to the K.D.A? (2) Whether the subsequent allotment and the execution of lease deed in favour of defendant No. 2 by K.D.A is valid or illegal and void? (3) Whether the plaintiff is entitled to relief claimed? (4) Whether the plaintiff has paid full occupancy value of the suit plot? (5) Whether the plaintiff has approached the defendant and has shown any interest till 15.9.1975? (6) Whether K.D.A. is competent to allot and lease the plot in question in favour of the defendant No. 2? (7) What should the decree be? In support of his case, the plaintiff examined his father/ attorney Syed Zaffaruddin (Ex. 5) who produced several documents (Ex. 6 to Ex. 45), while the defendant No. 1 examined his Assistant Director (Lands) as Ex. 50. On 4.5.1987, the Assistant Director-II, Scheme No. 24 Gulshan-e- Iqbal, Karachi on behalf of the KDA filed a Statement (Ex. 47) stating therein that the K.D.A. is already considering the case of the plaintiff for alternate plot After hearing the advocates for the contesting parties the learned trial Court, decrees the plaintiffs suit as prayed with costs vide its Judgment dated 1,12.1987 and Decree dated 14.12.1987. Against which the defendant No. 1 (KDA) preferred Civil Appeal No. 20 of 1988, which resulted in dismissal vide Judgment dated 21.11.1989 and Decree dated 6.12.1989. It is worth to note that the defendant No. 2 also remained ahsent in the appellate Court though served through publication in daily Mashriq dated 11.8.1989. Hence the KDA has filed this Revision Application against the concurrent findings of two Courts below while the Respondent No. 2 (defendant No. 2) did not filed any Appeal or Revision. I have heard Mr. Dasti Muhammad Ibrhaim, Adv. for the K.D.A. (Applicant), Mr. Malik M. Saeed Advocate for Respondent No. 1 and Mr. M.G. Dastagir, Advocate for the Respondent No. 2. Mr. Dasti Muhammad Ibrahim argued that since the plot in dispute has already put in possession and the lease is also executed in favour of the defendant No. 2 (Respondent No. 2), the KDA has no power to reconsider the case of the Respondent No. 1. The plot has also changed many hands and the defendant No. 2 has also raised huge construction thereon, as such the plaintiff is not entitled to any relief as prayed by him. He can only sue for damages or for alternate plot from the K.D.A. In the end he submitted that grant of a allotment of a plot by KDA is simply a favour which does not create any right is favour of the Respondent No. 1. In support of his contentions, he relied upon (1) PLD 1975 Karachi 373 (Halt Noor Muhammad and others vs. Karachi Development Authority and 2 others) (2) 1970 SCMR 364 (Muhammad Amir vs. Member (Colonies) Board of Revenue, West Pakistan ) and (3) 1994 CLC 1248 (Hqji Muhammad & another v/s. Govt. of Punjab through Collector, Distt. Karachi & another). Mr. M.G. Dastagir argued that the Respondent No. 2 is a bonafide allottee and in whose favour Registered Lease Deed is also executed by the KDA and a construction is raised on the said plot. In such circumstances, he submitted that the plaintiff (Respondent No. 1) is entitled to alternate plot to be given to him by the K.D.A. and such relief can be granted, though not prayed. In support of his contention he relied upon following case:- (1) PLD 1985 S.C. 466 (Muhammad Aslam (Through his L.R. vs. Wazir Muhammad) (2) PLD 1986 S.C. 35 (Samar Gul vs. Central Govt. and others) (3) PLD 1994 Karachi 492 (Mohd. Luqman v. Bashir Ahmad) (4) A.R. 1951 S.C. 177 (Firm Sriniwas Ram Human v Mahabir Prasad & others) (5) 1984 CLC 796 (Alvia Tableeghi Trust and 8 others vs. Mujeebur Rahman Alvia and 7 others) Mr. Malik M. Saeed argued that the concurrent findings of fact given by the two Courts below cannot be set aside by this Honourable Court in Revisional Jurisdiction. He also submitted that the facts of the case which gave rise to the filing of the suit are not disputed. He stressed hard on the point that the allotment of the plaintiff (Respondent No. 1) has never been cancelled by the KDA and neither such assertion or claim is made by the KDA any where in its written statement or in the evidence, as such the KDA was not competent to allot the same plot to the Respondent No. 2 and to execute its lease deed in his favour, during the subsistence of the allotment of the Respondent No. 1. As regards grant of alternate plot, he submitted that right from the very beginning the KDA is saying that the grant of alternate plot to the Respondent No. 1 is under consideration but a period of more than 20 years has passed away but the K.D.A. could not be able to finalise the same, which shows that the KDA has no mind to grant the same and wants to keep him on false hopes. As regards the grant of alternate plot though not specifically prayed in the suit, he argued that looking to the circumstances of the case and in order to do complete justice with all the parties, this Honourable Court is fully competent to grant such relief and particularly when the KDA also desires to do so. In support of his contentions he relied upon (1) PLD 1975 Karachi 373 (Hait Noor Muhammad and others vs. Karachi Development Authority and 2 others), (2) 1970 SCMR 364 (Muhammad Amir vs. Member (Colonies) Board of Revenue, West Pakistan) and (3) PLD 1964 Karachi 149 (S. Zafar Ahmad vs. Abdul •Khaliq). I have given my anxious thoughts to the valuable arguments of the learned advocates for the parties and with their assistance have gone through the record of the suit. Since it is established that the allotment order of the Respondent No. 1 (Plaintiff) was not cancelled by the KDA nor any such steps were taken by it, it was not within the competence of the KDA (Applicant/Defendant No. 1) to allot the same plot to the defendant No. 2/ Respondent No. 2 during the subsistence of the first allotment as such both the Courts below have rightly decided the said point in favour of the plaintiff and the advocates frr the applicant (KDA) and the subsequent allottee (Respondent No. 2) could not be able to show any reasons to disagree with the said finding, as such the grant of the disputed plot in favour of the Respondent No. 2 by the Respondent No. 1 is illegal and without any lawful authority and jurisdiction. The point which requires consideration is that, when the subsequent allottee had been already put in possession of the plot and the lease deed was also executed in his favour and he also raised constructions thereon, and nothing is brought on record to show that he (Respondent No. 2) was in knowledge of the allotment of the same plot in favour of plaintiff (Respondent No. 1) or he was in any way responsible for the said act of the KDA and that the property on the said plot had changed many hands, what should be done, in the said circumstances. In order to do complete justice with the parties, I am of the considered opinion that the grant of alternate plot to the plaintiff/Respondent No. 1, of the same area and at the old rate at which the disputed plot was allotted to him, is the only solution, for which the KDA rightly decided to do so and the plaintiff (Respondent No. 1) also showed his willingness. The record and the circumstances show that the KDA is solely responsible in creating the above problem for the plaintiff as well as for the subsequent allottee and also for the persons who got title over the property, one after the other, as such I have no option but to direct the K.D.A. to provide alternate plot measuring not less than 1000 Sq. Yds. at a suitable place, after consultation and agreement with the plaintiff (Respondent No. 1) to him at the old rate at which the disputed plot was allotted to him, and the amount already paid by him be adjusted towards price of alternate plot, within a period of 3 (three) months from this Judgment, without fail. In case the Applicant (KDA) failed to do so, the plaintiff/Respondent No. 1 shall be entitled to the recovery of the amount of the current market value of the plot in dispute, to be determined by the Nazir of this Court, in execution of this Judgment. Under the above circumstances, the Decree of the trial Court confirmed by the appellate Court is hereby amended (in terms of the above directions of this Court, with costs to be paid to the Respondent No. 1 (Plaintiff) by the Applicant (KDA) through out. It is observed that since the above dispute is more than 20 years old, as such I direct that the execution of this Judgment should be given top priority and it should be hurried as early as possible without any delay. (B.T.) Orders accordingly.

PLJ 1996 Karachi 1065 (DB) PLJ 1996 Karachi 1065 (DB) Present; salahuddin mirza and ghous muhammad, JJ. MARVI LABORATORIES-Petitioner versus THE FEDERATION OF PAKISTAN through SECRETARY TO THE GOVERNMENT, REVENUE DIVISION, ISLAMABAD and others-Respondents _ Constitutional Petitions Nos. D-713 and D-714 of 1995, decided on 20th September, 1995. Constitution of Pakistan, 1973— —Art. 199~Custom, Act, 1969, Ss. 19 & 32-"Sodium Acid Citrate"- Manufacturing of with Brand name as "SYKOL"- Show cause notice that Citric Acid was not detected in "SYKOL" was issued and delivery with held for payment of customs duty-Departmental appeals dismissed- Constitutional petition to-There can he no question of producing SYKOL by dissolving Sodium Acid Citrate and water because Sodium Acid Citerate is nothing but generic name of Citric and there is no difference between the two—Director General Health, Karachi have also issued certificates of Consumption, Certifying that Citric Acid imported by petitioner has been used in the manufacture of SYKOL syrup-Health ~ - Division had permitted the petitioner to change the generic name of their product, "Sodium Acid Citerate Syrup" to the brand name of "SYKOL"-- Held: Respondents misinterpreted the evidence before them in reaching the conclusion that Citric Acid was not being used by petitioner company in the manufacture of SYKOL Syrup-Impugned orders set aside- Petition allowed. [Pp. 1070 & 1071] A to D Mr. Sabihuddin Ahmad and Ziaul Haq Makhdoom, Advocates for Petitioner. Mr Ikram Ahmed Ansari, Dy. A.G. for Respondent. Dates of hearing: 4th, 7th, 13th and 14th of September, 1995. judgment Salahuddin Mirza, J.-The petitioner-company is engaged in manufacturing pharmaceutical products. In 1979, when generic names of the drugs were in vogue, it commenced manufacturing "Sodium Acid Citrate" but later on when brand names were allowed, the medicine was named "SYKOL". This medicine is produced through inter-action of 'Citric Acid' with sodium bicarbonate and the former has to be imported. Import of certain materials used in the manufacturing of drugs is exempt from Customs duty and Sales Tax under SRO No. 1147(l)/89 dated 27.11.1989 (Annexure 'E'). List of such materials is given in the annexure to the SRO and this list contains the name of "Citric Acid". The petitioner was thus ' ' enjoying exemption from Customs duty and Sales Tax in respect of the imports of Citric Acid. SRO 1147/(l)/89 is reproduced below: "SRO 1147(I)/89.--In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969), and subsection (1) of the section 7 of the Sales Tax Act, 1951 (III of 1951), the Federal Government is pleased to exempt so ^'^ much of the materials specified in the Annexure to this Notification as are imported for the manufacture of the drugs registered under the Drugs Act, 1976 (XXXI of 1976), ^^_ from the Customs duty specified in the First Schedule to the / Customs Act, 1969 (IV of 1969), and sales tax chargeable thereon, subject to the following conditions, namely: (1) The manufacturer shall furnish to the Health Division the quantities of the raw/packing materials alongwith the details of the drugs to be manufactured therefrom, and the Director-General Health or any other officer authorised in this behalf will certify for each consignment requirements of raw/packing materials alongwith the names of the drugs to be manufactured therefrom in the Form I set out below (2) At the time of import of raw/packing materials, the manufacturer shall make a written declaration on each copy of the bill of entry to the effect that the raw/packing materials have been imported in accordance with his entitlement in terms of co dition (1). (3) The Collector shall allow the release of the raw/packing materials against a bank guarantee or insurance guarantee equivalent to the customs duties and sales tax leviable on each consignment or a standing bank guarantee/insurance guarantee for covering multiple consignments to be i furnished to the satisfaction of the Collector of Customs. (4) The manufacturer shall maintain records of the materials imported and drugs manufactured therefrom, and shall produce the same whenever so required by the appropriate officer of Customs or the Health Divisions. (5) The manufacturer shall within 15 months of the importation of the raw/packing materials, apply to the Collector of Customs for disregarding the bank guarantee or insurance guarantee, the application being supported by a certificate in the Form-II set out below, issued by the Director-General Health or any other officer authorized in this behalf. So far the consignments of Citric acid were being regularly cleared and bank/Insurance guarantees were discharged in terms of the above SRO but the Insurance guarantees and indemnity bonds pertaining to the 12 consignments imported between July 1991 and February 1993 were not discharged nor the petitioner was allowed to take delivery of consignments. Details of these consignments are as follows:- Bill of entry C.N. and Date 1. 4343/9.7.91 2. 7392/13.8.91 3. 12896/26.4.92 4. 1460/6.8.92 5. 4467/22.8.92 6. 1223/7.9.92 7. 3152/16.9.92 8. 3698/19.9.92 9. 6351/21.12.92 No. of issuance of Form II and date of 1969 dated 19.7.92 1970 dated 19.7.92 3121 dated 19.7.93 2143 dated 2.11.93 2139 dated 2.11.93 2365 dated 5.12.93 2524 dated 28.12.93 2442 dated 19.12.93 271 dated 13.2.94 Date of Show- Cause Notices SI/MISC/132/93- AIB-A dated 12.9.1993 SI/MISC/132/93- AIB-B dated 19.7.1992 SI/MISC/312/93- AIB-C dated 12.9.93 SI/MISC/132/93- AIB-E dated 12.9.93 SI/MISC/132/93- AIB-E dated 12.9.93 SI/MISC/132/93- AIB-F dated 12.9.93 SI/MISC/132/93- AIB-G dated 12.9.93 SI/MISC/132/93- AIB-H dated 19.2.93 SI/MISC/132/93- AIB-I dated 12.9.93 Bill of entry No. of issuance of Date of Show- C.N. and Date Form II and date of Cause Notices 10. 7470/28.12.92 376 dated 6.3.94 SI/MISC/132/93- AIB-J dated 5.9.93 11.933/4.1.93 446 dated 22.3.94 SI/MISC/132/93- AIB-K dated 5.9.93 12. 3271/10.2.93 680 dated 5.4.94 SI/MISC/132/93- AIB-L dated 5.9.1993 Instead of discharging the Insurance guarantees and indemnity bonds, respondent No. 2 issued show-cause notices on 5.9.1993, 12.9.1993 and 19.9.1993 as shown in the above table. All the show-cause notices are in the same language and copy of one such notice, which pertains to item 6 in the above table in Annexure "H". The notices indicated that SYKOL was subjected to chemical analysis in three different laboratories and Citric Acid was not detected in the medicine SYKOL and an enquiry was ordered and the petitioners were directed to send a representative on 17.10.1993 before Deputy Collector (Appraisement) for taking part in the enquiry. According to the petitioner, two of the three laboratories to whom the samples of the drug were sent certified that Citric Acid was found in the drug and the third laboratory had not conducted the test for determining the existence of Citric Acid in the drug. Inspite of this, Deputy Collector (Appraisement-I) held (vide Order dated 31.3.1994 Annexures K-l to K-10) petitioner guilty of violating sections 19 and 32 of the Customs Act by not using Citric Acid in the manufacture of SYKOL and directed the petitioner to pay the customs duty and other taxes and also levied penalty. Appeals before respondent No. 2 Collector (Appeals) were also dismissed on 14.4.1994 and 5.5.1994 (Annexures 'L' and 'L-D and the revisions were also dismissed on 1.9.1994 and 5.12.1994 (Annexure 'M' and 'M-D after which this Constitutional petition was filed on 11.4.1995 in which the petitioners seek a declaration that Citric was used in the manufacture of SYKOL and all the there impugned orders are without lawful authority and are of no legal effect The petitioners also seek other ancillary reliefs. 2. Respondents Nos. 1 to 4 have filed parawise comments in which they maintain that the reports of all the three laboratories establish nonexistence of Citric Acid in SYKOL and they insisted that the action taken by them was correct. The conceded that a team of their own Chemical Examiners, which had visited the factory of the petitioners on 3.3.1994 and had witnessed the manufacturing process, had confirmed the existence of Citric Acid in the medicine but stated that the report of this team could not be preferred to the findings of the three laboratories. ( Para 14 of the comments). 3. We have heard learned counsel of the parties and gone through the record. 4. At the outset learned D.A.G. had raised objection that the Appellate Tribunal, as envisaged under section 144 of the Customs Act (as substituted by Act V of 1989) had been constituted in March 1995 and had since commenced functioning and therefore this Constitutional petition was not maintainable and the petitioner should first approach the said Tribunal. He placed on record copy of letter No. 3 (45) Customs. Judicial/94 dated 27.3.1995 from the Central Board of Revenue to the various officers of the Customs Department in which it was notified that the Federal Government issued SRO dated 22nd March, 1995 and had appointed 30th day of March, 1995 to be the day on which the provisions of subsections (4), (5), (6) and (7) of section 3 and subsections (1), (2), (6) and (10) of section 5 of the Finance Act would come into force. He has also placed on record copy of the said RO. We are, however, of the view that the objection raised cannot be sustained. As would appear from section 194-A of the Customs Act, only four types of orders are appealable before the Tribunal which are (a) a decision or order passed by the Collector of Customs as an adjudicating authority; (b) an order passed by Collector (Appeals) under section 193; (c) an order passed under section 193, as it stood immediately before the appointed date (which is now determined to be 30th March 1995); and (d) an order passed by the Central Board of Revenue or the Collector of Customs under section 195 as it stood immediately before the appointed date. Now, the order passed by the Central Board of Revenue under its Revisional jurisdiction and at the instance of the petitioner is not covered by any of the provisions of section 194-A and therefore the impugned order of the Central Board of Revenue cannot be challenged before the Tribunal. Later on, learned D.A.G., after consulting the departmental representative, conceded that the petitioner could not approach the Tribunal after the decision of the Central Board of Revenue. 5. The product of the petitioner was registered with the Ministiy of Health under the generic name of "Sodium Acid Citrate Syrup" vide Health Division Letter dated 26th July 1978 (Annexure "A-l"i and vide letter dated 29th June 1982 (Annexure "A") of the same Division the petitioners were allowed to use brand name "SYKOL" in place of the generic name. We are referred to the "British Pharmaceutical Codex (1963)", published by Council of Pharmaceutical Society of Great Britain (Annexure 'C-A' to the petition) which shows that Sodium Acid Citrate (the generic name of Sykol) is prepared by the inter-action of Citric Acid and Sodium Carbonate. Deputy Collector of Customs (Appraisement I) had referred the samples of the product to three laboratories. The reports of the said laboratories have not been placed on record by the respondents but their gist is reproduced in the how-cause notices. A perusal of the gist of these reports shows that according to the Customs House Laboratory the presence of the Citric Acid to the extent of 6% w/v was detected in the sample but it was opined that it was due to one of the molecules of Sodium Acid Citrate whereas according to the P.C.S.I.R. Laboratories, contents of Citric Acid were traced in the sample whereas the Central Drugs Laboratory did not determine the contents of Citric Acid in the sample but nevertheless reported that the sample contained Sodium Acid Citrate. It may also be noted that a team of the experts of the Customs Department itself had visited the factory of the petitioner on 3.3.1994 and a copy of its report is on record as Annexure " to the petition. The respondents have admitted this report vide para. 14 of their counter-affidavit but stated that it could not be preferred over the report of the laboratories. In this report the team of Experts reported that on visiting the factory they saw that some material was being compounded in the re­ action kettle. A list of 10 items being so compounded is given and at No. 1 of the list is Citric Acid. The team concluded that the Citric Acid used in the manufacture of SYKOL Syrup lost its original identity in the end-product and would not be available for detention in its original acid form and would become an integral part of Sodium Acid Citrate, generic name of SYKOL Syrup. We note that the respondents did not take into account this report Annexure 'J' in any of the impugned orders. They may not have preferred it over any other piece of evidence before them but we feel that it was incumbent upon them to take it into consideration. We have also perused the certificates of consumption issued by The Director-General Health, Government of Pakistan, Health Division, Karachi (Annexures 'G-l' to 'G-12') certifying that the Citric Acid imported by the petitioner has been used in the manufacture of SYKOL syrup. 6. The action taken by the Deputy Collector of Customs (Appraisement-I) vide order in original dated 31.3.1994 is based on his observation that the product "SYKOL" can be produced easily by dissolving the required amount of Sodium Acid Citrate and water and he implied that Citric Acid was not required nor was used in its manufacture. It appears to us that this observation is a result of misreading of evidence before him. There can be no question of producing SYKOL by dissolving Sodium Acid Citrate and water because Sodium Acid Citrate is nothing but generic name of Citric and there is no difference between the two. A reference may be made to Annexure 'A' whereby the Health Division had permitted the petitioner to change the generic name of their product "Sodium Acid Citrate Syrup" to the brand name of "SYKOL". As such, it is the Sodium Acid Citrate which is being manufactured by the petitioner and is sold under the brand name of SYKOL and as we have seen in British Pharmaceutical Codex (1963) (Annexure C-l), Sodium Acid Citrate is prepared by the inter-action of Citric Acid and Sodium carbonate. The respondents have not brought anything on record to show that Sodium Acid Citrate could be prepared without the aid of Citric Acid. Learned Appellate and Revisional Authorities seem to have over-looked this aspect. The cumulative effect of the record placed before us is that we are inclined to hold that the respondents misinterpreted the evidence before them in reaching the conclusion that Citric Acid was not being used by the petitioner-company in the manufacture of SYKOL Syrup. Barring the test report of Central Drugs Laboratory, the other two test reports of Customs House Laboratory and of P.C.S.I.R. do not rule out the presence of Citric Acid in the end-product. It is an admitted position that the petitioner is manufacturing Sodium Acid Citrate and there is nothing to rebut the contents of British Pharmaceutical Codex (1963) that Sodium Acid Citrate can only be prepared by the inter­action of Citric Acid and Sodium Carbonate. It therefore follows that if the petitioner is manufacturing Sodium Acid Citrate it must of necessity be using, in the process, Citric Acid. This conclusion also finds support from the report of the team of Experts of the Customs Department itself (Annexure 'J') and from the certificates of consumption of Health Division. We would therefore set aside the impugned orders and declare that they are based on misreading of evidence and therefore are of without lawful authority and of no legal effect. All the consequences of this declaration shall follow. The petition stands allowed in the above terms. There shall be no order as to costs. 7. In this petition the consignments had been cleared by the petitioner. However, some consignments are still lying in the Port area and pursuant to the action taken by the respondents in respect of the consignments which are the subject-matter of C.P. No. D-713/1995, those other consignments were not released by the respondents and they are still lying in the Port are and in respect thereof C.P.. No. D-714/1995 had been filed by the petitioners. This C.P. No. D-714/1995, in which the same questions of fact and law are involved is also disposed of by this judgment. The Karachi Port Trust which was not party in C.P. No. D-713/1995 is, however, a party in this petition because the consignments are lying in its area and the petitioner had sought au interim injunction till the decision of the petition against KPT from auctioning the consignments for the failure of the petitioner tu lift it from the Port area. Obviously, the petitioners could not lift it because it was prevented by the Customs Department from doing so. This application (M.A. No. 1559 of 1995) has however now become infructuous. As a result of the decision of the petitions, the petitioners are entitled to lift the consignments which are subject matter of C.P. No. D- 714/1995 subject to the payment of dues of KPT, if any. (M.Y.F.K.) Petition accepted.

PLJ 1996 Karachi 1072 PLJ 1996 Karachi 1072 Present: rana bhagwan das, J. Hqji ADAM ALI AGARIA-Plaintiff versus ASIF HUSSAIN and 2 others- Defendants Civil Suit No. 301 of 1976, decided on 25th June, 1995. (i) Contract Act, 1872 (IX of 1872)-- —S. 2~Agreement-Defmition of-A bare reading of agreement to sell unequivocally shows that there is proposal by vendor and acceptance by plaintiff for a valuable consideration-There is a stipulation of delivering vacant possession of properly by vendpr-These features do not admit of any ambiguity-Held: Parties had mutually entered into a valid, lawful and a concluded contract. [Pp. 1075 & 1077] A to C (ii) Contract Act, 1872 (IX of 1872)-- 1S. 55-Whether time is essence of a contract-Question of--In cases relating to transfer of immovable property ordinarily time is not to be considered as essence of contract, but at any rate a party in breach of contract cannot be permitted to take advantage of its own wrong and to blow hot and cold at one and same time. [P. 1081] D (iii) Specific Relief Act, 1877 (I of 1877)-- —S. 22 read with S. 12-Contract-Repudiation thereof-Specific performance of contract-Discretion of contract to grant specific performance-Discretion of a court to grant specific performance must be exercised an sound judicial principles and not in arbitrary manner-Court is bound to grant such relief merely because it is lawful-Court may decline to exercise of granting specific performance of a contract, namely, (i) where circumstances under which contract is made are much, as to give plaintiff an unfair advantage over defendant, though there may not be fraud or misrepresentation on plaintiffs part and (ii) where performance of contract would involve some hardship on defendant which he did not fore see whereas its non-performance would involve such hardship on plaintiff-Court may properly exercise discretion to decree specific performance where plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance-A party in breach of commitment cannot seek discretion of court in his favour as it would amount to providing a premium on his on wrong-Held: Plaintiff, in law and equity has made out a strong case for pecific performance of contract-He has approached the court with clean hands and has always been ready and willing to perform his part of contract-Suit decreed with costs. [Pp. 1081 & 1082] E, F, G PLD 1991 SC 905 and 1991 SCMR 2189 ref. H.A. Rehmani, Advocate for Plaintiff. Habibur Rehman, Advocate for Defendants. Dates of hearing: 3 and 16.5.1995. judgment The plaintiff has brought this suit for specific performance of an agreement to sell in respect of Bungalow No. GRE-317-VII-A-E-138-G/2 & 1/1, Garden East, Karachi. 2. An agreement to sell, Exh. 6/1, was executed on 4.8.1975 by Syed Asim Hussain (since dead), father of the defendants, in favour of the plaintiff, agreeing to sell the property in suit for a consideration of Rs. 1,35,000 acknowledging a sum of Rs. 7,000 by way of earnest money. The balance consideration of Rs. 1,28,000 was agreed to be paid at the time of execution and registration of sale-deed. It was further agreed that the deceased vendor shall within three months of the date of agreement complete the sale by executing the sale-deed in favour of the plaintiff after making out a good and marketable title of the property, free from all claims, charges, demands, encumbrances etc. It was stipulated in para. 12 of the agreement that deceased Syed Asim Hussain had stood surety in the sum of Rs. 10,000 before the High Court of Sindh and that he shall get the said surety discharged and obtain a certificate of discharge of surety and get the entry to this effect removed from the record of rights in the office of City Deputy Collector, Karachi. It is pleaded that the deceased was unable to comply with the above requirement within the prescribed period of three months with the result that the parties mutually agreed to extend time for unspecified period but as early as possible. Later, the plaintiff received legal notice dated 4-11-1975 sent on behalf of Syed Asim Hussain informing him that on account of breach of his premises and time being the essence of the contract, the vendor had cancelled the contract. A crossed cheque dated 28.10.1975 in the sum of Rs. 7,000 was also enclosed with this notice. The plaintiff by his letter dated 19.11.1975 replied to the legal notice repudiating all allegations and calling upon the deceased vendor to complete the sale transaction by executing the sale-deed as early as possible. Original cheque for Rs. 7,000 sent on behalf of the vendor was also returned alongwith this reply. 3. Thereafter, the plaintiff issued a legal notice dated 26.1.1976 to the deceased vendor through his Advocate finally calling upon him to perform his part of the contract within 15 days of the receipt of the notice tailing which he shall be constrained to take appropriate legal proceedings against him. Expressing his readiness and willingness to perform his part of contract and pleading that time was not the essence of the contract, the plaintiff filed this suit against the deceased vendor on 21.4.1976. After the death of the deceased during pendency of the suit, present defendants were joined as his legal heirs. 4. The defendant resisted the suit and filed a written statement denying that there was any concluded contract between the parties. He took the plea that agreement dated 4.8.1975 was only a draft proposal. It was alleged that the notice dated 4.11.1975 given by the Advocate for the deceased defendant was contrary to instructions. All other allegations were denied. 5. On the pleadings of the parties, following issues were settled:- "(1) Whether the agreement dated 4.8.1975 was a completed contract, or it was only a draft proposal? (2) Whether the time for performance of prerequisite formalities was extended by mutual agreement of parties? (3) Whether time was not to be of the essence of the contract? If so, what is its effect? (4) Whether the plaintiff is entitled to specific performance of the contract? If so, on what terms? (5) Relief? 6. In support of his case, plaintiff, Adam Ali, examined himself as P.W. 1, Muhammad Bahi P.W. 2 (marginal witness) while the defendants led the evidence of Syed Wasif Hussain, defendant No. 3, in rebuttal. A number of documents were produced in evidence which shall be discussed later on. 7. I have heard learned counsel for the parties and gone through the relevant evidence. My findings on each of the issues are as under for the following reasons:- FINDINCS 8. Issue No. 1 Thi; u^ : vcinent was a completed contract. Issue No. 2 Not pn-ssed. Issue No. 3 As under. Issue No. 4 In affirmative. Issue No. 5 Suit decreed with costs. ISSUE NO. 1: 9. The plaintiff in his evidence produced the agreement dated 4.8.1975 Exh. 6/1, which is duly signed by the defendants' predecessor-ininterest, Syed Asim Hussain. According to the plaintiff, attesting witnesses, Qazi Ramzan and Muhammad Bahi, had signed the agreement at the time of execution whereas the defendants denied the signature of P.W. Muhammad Bhai and relied upon a carbon copy of the agreement Exh. 8/1 and admitted the signature by attesting witness, Qazi Ramzan (since dead). It may be observed here that Exh. 8/1 was not confronted to the plaintiff or attesting witness, Muhammad Bahi, and was i. ? oduced in Court after a lapse of about one year of the dose of plaintiffs evidence, with the leave of the Court in C.M.A. 614 of 1991 under Order XIII, Rule 2, C.P.C. 10. A bare reading of the agreement to sell unequivocally shows that there is a proposal to sell the property in suit by the vendor and acceptance ,. by the plaintiff for a valuable consideration. Payment of Rs. 7,000 towards part of the purchase price is also acknowledged in the agreement itself and the terms and conditions in the contract tue also specific and unequivocal. The agreement recites that the balance consideration of Rs. 1,28,000 shall be paid by the vendee to the vendor at the time of execution and registration of the sale-deed. It further states that within three months, vendor shall complete the sale by executing the deed of sale in favour of the vendee and get the same duly registered with the Sub-Registrar after making out a good and marketable title to the property in suit free from all claims, charges etc. There is a stipulation of delivering vacant possession of the property by the B vendor at the time of execution and registration of the sale deed. It is provided in the agreement that the vendor shall construct o,- jr^ot cunient block common wall between his plot and that of the adjoining owner, Mst. Sheerin Begum, before delivery of the vacant possession. He shall also keep the vendor indemnified against any loss or damage due to any defect in the title or otherwise in respect of the property or any part thereof. With regard to the encumbrance on the property in suit, the agreement shows that the vendor had stood surety in the sum of Rs. 10,000 before the High Court of SIndh and Balochistan and he shall get die said surety discharged from the High Court, obtain a certificate of discharge <nd get the entry to this effect removed from the record of rights. 11. Learned counsel for the defendants contended with vehemence that the intention of the parties has to be gathered from the contents of the agreement which must be construed strictly. According to him intention of the parties is of cardinal importance and in the present case, intention of the parties was merely to execute a memorandum of understanding to be complied with within three months positively. Learned counsel submitted that in case the properly in suit was not released from the encumbrance and charge created in favour of Nazir of the High Court of Sindh, understanding would come to an end and there would be no concluded contract between the parties. With reference to paragraphs 1 to 4 of the plaint learned counsel urged that these averments would signify that in case sale was not completed, the agreement would lapse and come to an end. In this connection he referred to page 2 of the cross-examination of the plaintiff, in which the plaintiff innocently accepted the suggestion that the defendants failed to get correction made within three months in the record of C.D.C., regarding encumbrance of the property with the High Court and he failed to get the tenants removed from the property within three months. It is admitted position that the deceased defendant did not take steps for discharge of his liability as surety and did not obtain the discharge certificate from the High Court within a period of three months as stipulated in the agreement of sale because the letter from the High Court, Exh. 8/4, is dated 31.12.1979. Be that as it may, this part of the contract was required to be performed by the deceased defendant himself but this aspect of the case is not relevant for the purpose of deciding this issue. 12. Mr. Habibur Rehman, learned counsel for the defendants laid much emphasis on the admission by the plaintiff that the defendants could not get the tenants removed from the property within three months but I am least impressed by this submission of the learned counsel. Undoubtedly, the agreement Exh. 6/1, speaks of handing over vacant possession of the property at the time of execution and registration of the sale-deed, but it has no reference to the occupation of a part of the property by tenants. At any rate, there was no stipulation between the parties that the defendant vendor shall get the tenants ejected before the execution of the sale-deed. 13. In case there were/are some tenants in occupation of a portion of the property in the suit it was incumbent on the vendor to disclose this fact in categorical terms and inform the vendee that the agreement of sale would be subject to encumbrance of the tenants occupying a portion of the property in suit. As observed earlier, there is no mention of any tenant or tenancy rights in favour of any person in the agreement of sale Exh. 6/1. At the trial vendor having adduced evidence to the effect that some tenants are occupying a portion of the property in suit this circumstance would neither frustrate the contract nor absolve the vendor of his duty to perform his part of the contract enjoined by law. In fact, delivery of vacant possession of the property in suit in favour of the vendee would include possession of the portion with the vendor as well as the portion in occupation of the tenants. After acquiring a valid title to the property, plaintiff would be entitled to deal with the tenants in accordance with law. 14. Learned counsel for the defendants relied upon House Building Finance Corporation v. Shahenshah Humayun Cooperative Housing Society an others (1992 SCMR 19). In this case it was observed by the Honourable Supreme Court that the deed of contract has to be construed strictly and literally without deviating or implying anything which is not supported by the intention of the parties and the language of the document. Nothing can be implied in a contract which was inconsistent with its expressed terms. At page 28 of the report, it was observed that the main purpose of construction of terms of a written agreement is to find out the intention of the parties to the agreement. By looking to the words used one has to construe the intention which has persuaded the parties to enter into the agreement. Where the plain and ordinary meaning may lead to inconsistency with other expressions used in the document or absurdity then such plain and ordinary meaning can be modified to avoid absurdity and inconsistency, because the law favours to save a deed, if possible. Courts are always anxious to adopt a reasonable construction by which the intention of the parties can be spelt out. 15. In the present case I have already reproduced salient features of the agreement of sale which do not admit of any ambiguity. The terms and conditions of the agreement between the parties have been expressed in clear and unequivocal terms and the only inference that can be drawn from the contents of the agreement is that the parties had mutually entered into a valid, lawful and a concluded contract. 16. Maxwell on the Interpretation of Statutes, Twelfth Edition, on page 212 states as under:- "On The general principles of avoiding injustice and absurdity, any construction will, if possible, be rejected (unless the policy of the Act requires it) if it would enable a person by his own act to impair an obligation which he has undertaken, or otherwise to profit by his own wrong. A man may not take advantage of his own wrong. He may not plead in his own interest self-created necessity." 17. Defendants, therefore, cannot be permitted to take advantage of their own wrong by saying that there was no completed contract between the parties or that it was a mere draft proposed which was never finalized. 18. "Whether an agreement is a complete bargain or merely a provisional agreement depends on the intention of the parties as deducible rom the language used by the parties on the occasion when the negotiations take a concrete shape". This question was considered by Inamullah, J.~in Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLJD 1956 (W.P.) Kar. 521). Apart from other reasons learned Judge relied upon the judgment of the Privy Council in the case ofHadley v. The London Bank of Scot Land (AIR 1923 PC 47) which cannot be expressed in a better way than the judgment itself which reads as under: - "I have always understood the rule of the Court to be that, in case where there is a clear and undoubted contract as to the validity of which no dispute arises for the sale of the property, the Court will not after that contract has been entered into permit the vendor to transfer the legal estate to a third person notwithstanding the Us pendens will operate against that third person, and I think that as well founded in principle, because the effect of the contract is to pass the whole equitable interest out of the vendor. So long as the contract is an undisputed contract the whole of the property is in equity transferred from the vendor to the purchaser; the vendor then becomes a trustee for the purchaser and the trustee cannot be permitted to deal with the legal estate so as to inconvenience the purchaser." 19. Mr. Habibur Rahman, learned counsel for the defendants, however, sought to rely upon the contents of the written statement filed by the deceased defendant Syed Asim Hussain who without appearing for his evidence expired during the pendency of the suit on 25.9.1985. In the written statement the deceased had taken the stand that the draft was only to serve as a basis for further negotiations and discussions between the parties; and only after such discussion and necessary amendment, the agreement would have been finalized and written out on a duly stamped paper. In para. 15 of the written statement he asserted that he wanted to sell the property in dispute and had contacted several brokers. In this connection, Qazi Muhammad Ramzan, a broker also contacted the defendant. The defendant having been pestered by the brokers made it quite clear to them particularly to Qazi Muhammad Ramzan, that he would not sell this property for less than rupees two lacs. He further told Muhammad Ramzan that he should bring offers only from genuine buyers who were willing to purchase the property for Rupees two lacs. In July, 1975 Muhammad Ramzan brought a draft of agreement typed on a simple paper purporting to be an agreement for sale of defendant's property to the plaintiff for a price of Rs. 1,35,000 alongwith a cheque for Rs. 7,000 bearing dated 4.8.1975 and drawn on Muslim Commercial Bank. The defendant refused to accept the offer contained in the said draft. He flatly told the said broker that he could not accept any offer for less than Rs. 2,00,000 because he shall have to spend Rs. 40,000 to Rs. 50,000 for getting a suitable ranted accommodation for himself and his family and a further sum of about Rs. 25,000 will be spent for providing alternate accommodation to his tenant of the ground floor of the building. ' t 20. Learned counsel persuaded this Court to accept these averments of the deceased defendant as a part of evidence without proving the same through the defendant's son Syed Wasif Hussain who appeared in the witness-box. In this connection I may refer to the celebrated judgment of the Supreme Court in the case of Mst, Khairunnisa and others v. Malik Muhammad Ishaque and others (PLD 1972 SC 25), in which it was laid down that a written statement cannot be exhibited in a case without the person filing the same being examined in Court and, therefore, cannot be treated as evidence in the ease under section 32 of the Evidence Act. Learned counsel for the defendants attempted to distinguish this judgment by submitting that prior to the Law Reforms Ordinance, 1972 pleadings were not verified on oath whereas written statement in the present case was verified on oath by the deceased defendant. Be that as it may, I am least impressed by the argument advanced in support of the proposition that the averments made in a written statement after death of the author can be taken into consideration as a valid piece of evidence. Apart from the view taken in the aforesaid authority this view was affirmed and approved by majority judgment in Khawaja Auot Cars Ltd. v. Muhammad Yousuf (1991 SCMR 2223). In my view acceptance of contention of the learned counsel would give rise to serious complications in law which may lead to commit violence on the statute. - __ 21. Even otherwise evidence before a Court of law would include examination-in-chief, cross-examination by the opposite-party and reexamination by the party calling the witness with the leave of the Court. In he present case author of the written statement being not available for cross-examination and the plaintiff having no opportunity of crossexamining him the same cannot be taken or accepted as evidence of the facts stated therein as contended by the learned counsel. For these reasons, I hold that agreement Exh. 6/1 executed between the parties was a completed contract and not a draft proposal. 22. ISSUE NO. 2: This issue was struck in view of the averments in the plaint and \ denied by the defendants but Mr. H.A. Rahmani, the learned counsel for the plaintiff did not press this issue which is accordingly dropped. 23. ISSUE NO. 3: In view of the fact that period of three months was fixed in the agreement of sale for completion of the contract learned counsel for the plaintiff did not controvert the position that time was to be of the essence of the contract. It was, however, submitted that the time was fixed for placing responsibility on the vendor to perform his part of the contract for obtaining a good and marketable title to the property with a view to execute a saledeed and get it registered. It is an admitted position that consistent with the terms of the contract deceased vendor did not obtain a certificate from the High Court within a period of three months discharging him of the encumbrance on the property and the certificate obtained from the High Court was dated 31st December, 1979 long after the period for completion of the sale agreed upon between the parties. This circumstance per se, however, would not absolve the vendor of his legal duty to perform the part of his contract notwithstanding the expiry of period fixed in the agreement of sale. Indeed the vendor did not take steps to achieve the desired result and to discharge his obligation arising out of the agreement. On the contrary after lape of three months he sent a letter of cancellation Exh. 6/2 to the plaintiff alleging breach of contract on his part which was false and baseless on the face of it to the knowledge of the vendor. For the first time defendant's Advocate alleged in his letter that as upper clause 8 of the agreement vendor had to construct the cement block common wall between his plot and that of the adjoining owner but it was agreed that it will be done at the cost of the defendant. The letter went on saying that the original vendor had called upon the defendant several times to arrange for money and/or do the needful by calling the masons and the building material but he did not pay any heed. Apart from the above allegations it was said that the plaintiff had also agreed to arrange for alternate accommodation of the tenant of the ground floor but later on he had backed out. It may be observed here that both these conditions do not find any place in the agreement of sale consisting of 12 clauses. No doubt clause (8) of the agreement says that before delivery of vacant possession of the property in suit vendor shall construct and/or erect the cement block common wall between his plot and that of the adjoining owner Mst. Sheerin Begum, it does not say that the vendee shall bear the expenses. Likewise, there is no stipulation in the agreement that he shall make alternate arrangement for accommodation of the tenant of the ground floor of the property. The defendant having introduced entirely a new case in this letter just after the expiry of three months and cancelling the 'agreement of sale unilaterally could not be allowed to do so. In any case the breach of contract was committed by him, consequently he could not back out from his promise or to rescind the contract on his own will. In my view the contract of sale being complete and valid in all respects could not be unilaterally revoked to the utter disadvantage of the vendee who lost no time in repudiating the allegations of the vendor by sending a prompt reply Exh. 6/3 through his Advocate. In his reply plaintiff not only repudiated the allegations of the defendant but also expressed his readiness and willingness to perform of his part of contract. He had also returned the cheque for Rs. 7,000 to the defendant sent by him. Needless to point out in the event of wrongful repudiation by a contractor it would not bind other party to the contract and the defendant had the least justification to put an end to the contract. 24. In Zaheer Ahmed and another v. Abdul Aziz arid others (1983 SCMR 559) Honourable Supreme Court observed that in a case where time was of the essence of the contract a party guilty of reventing completion of contract within time could not plead that time was of the essence of the contract. 25. Truly speaking in cases relating to transfer of immovable property ordinarily time is not to be considered as essence of the contract but at any rate a party in breach of contract cannot be permitted to take advantage of its own wrong and to blow hot and cold at one and the same time. In my view, in the present case, stipulation of time fixed in the agreement would not result in frustration of the contract and the defendant would not be entitled to revoke the same he being guilty of contravention of the terms of the contract itself. ISSUE NO. 4: 26. It is true that section 22 of the Specific Relief Act gives discretion to a Court to grant specific performance but the discretion must be exercised on sound judicial principles and not in an arbitrary manner. It is true that jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but it is to be guided by sound judicial principles which are amenable to correction by a Court of Appeal. It may further be noticed that section 22 gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise of granting specific performance of a contract, namely, (i) where the circumst nces under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance of the contract would involve such hardship on the plaintiff. It may also be pointed out that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance. 27. It would be noticed that the defendant has not raised either of the two grounds to defeat the claim of the plaintiff. On the contrary he has attempted to take advantage of his own wrong and breach of contract on his part. It is well-settled that a party in breach of commitment cannot seek discretion of the Court in his favour as it would amount to providing a premium on his own wrong. In law and equity the plaintiff has made out a strong case for specific performance of the contract and in the circumstances he is entitled to a decree for specific performance subject to payment of the balance consideration. There is no cogent and convincing reason to refuse specific performance in favour of the plaintiff who has approached the Court with clean hands and has always been ready and willing to perform his part of the contract. In fact no authority is needed for this proposition yet I am benefitted by the view expressed by the Supreme Court in the case of Syed ArifShah v. Abdul Hakeem Qureshi (PLD 1991 SC 905) and Mr. Mussarat ShoukatAli v. Mrs. Sofia Khatoon and others (1991 SCMR 2189). 28. In the last-mentioned case Honourable Supreme Court while reiterating that grant of relief specific performance is discretionary with the Court observed that the relief specific performance being an equitable relief, it can be refused by the Court only if the equities in the case are against the plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which disentitles him to the grant of equitable relief of specific performance of a contract which cannot be refused merely because it is lawful for the Court to refuse it ISSUE NO. 5: 29. As a result of my findings on Issues Nos. 1 to 4 suit is decreed with costs. He shall deposit the balance consideration of Rs. 1,28,000 in Court within thirty days of the decree. The defendants are directed to execute a registered sale-deed in favour of the plaintiff within thirty days of the deposit of the amount::: this Court. (M.Y.F.K.) Suit decreed.

PLJ 1996 Karachi 1082 (DB) PLJ 1996 Karachi 1082 (DB) Present: abdul hafeez memon, actg. C.J. and nazim hussain siddiqui, J. Messrs S.G. RAUF & CO., KARACHI and 2 others-Petitioners versus UNITED BANK LTD. and 2 others-Respondents Constitutional Petition No. D-2293 of 1994, decided on 17th October, 1995. (i) Banking Companies (Recovery of Loans) Ordinance, 1979 (XIX of 1979)-- —S. 8(3)~Banking Companies Ordinance (LVH of 1962)--S. 25--West Pakistan Land Revenue Act (XVII of 1967)-S. 82-Suit for recovery of loan-Decreed to~Notice for recovery of decretal amount as arrears of land revenue—Challenge to with contention that since amount in question had not been borrowed for agricultural purposes, same could not be recovered as arrears of land revenue-Service of notice to petitioners was fully proved~By virtue of amendment brought by Ordinances No. 3 and LXIV of 1994 in Banking Companies Ordinances, 1962, besides, the loans and advances given for agricultural purposes, any other amount decreed by any Court in favour of banking Companies can also be recovered as arrears of land revenue-Thus respondent No. 1 is entitled to recover the decretal amount-Petitioners have not mentioned any thing about amendments of 1994, hence, it appears to be case of misrepresentation/Concealment of facts on their part-Petition dismissed. [P. 1085] A & B (ii) Constitution of Pakistan, 1973-- —-Art. 199--Constitutional jurisdiction-Exercise of-Exercise of Constitutional jurisdiction being discretionary in nature-No one can claim the exercise of discretionary power as a matter of right-Petitioners did not pay the amount as per terms of agreement-They have not come with clean hands, hence, not entitled to any leniency. [P. 1085] C S.M.A. Mehmood, Advocate for Petitioners. Muhammad Sadiq Khan, Advocate for Respondent No. 1. Date of hearing: 23.5.1995. judgment Nazim Hussain Siddiqui, J.-The petitioners have impugned notice, dated 2.8.1994, issued to them by the respondent No. 2 Assistant Commissioner, Karachi, East under section 82 of the Land Revenue Act, 1967, directing them to pay Rs. 22.124 Million plus Recovery Charges of Rs. 4,42,481 within 15 days from the date of said notice. The facts relevant for decision of this petition are as follows. The respondent No. 1, United Bank Limited, filed the Suits Nos. 390 and 391 of 1987, under the Banking Companies (Recovery of Loans) „ Ordinance, 1979, for Rs. 33,20,122.71 and Rs. 1,88,04471.71 respectively. Both these suit on 4.3.1990 were decreed against the petitioners. The petitioners preferred appeals against the judgments and decrees, being High Court Appeals Nos. 65 and 66 of 1990, which were dismissed on 27.4.1993 and 25.2.1993 respectively. Thereafter, the respondent No. 1 approached the Deputy Commissioner, Karachi East, for recovery of decretal amount as arrears of Land Revenue. The matter was referred to the respondent No. 2, who issued the impugned notice. The petitioners have claimed that no notice, as envisaged under the proviso of section 25-B of the Banking Companies Ordinance, 1962, hereinafter referred to as the Ordinance, was issued to them and the advance/loan taken by them from the respondent No. 1 was not for agricultural purposes, as such, the impugned notice is without jurisdiction and illegal. The case of the respondent No. 1, as disclosed in the counteraffidavit, is that the petitioners had not brought to the notice of the Court the amended version of section 25-B of the Ordinance. According to the respondent, on 11.12.1993 notice of information, as required under section 25-B of the Ordinance, was given through T.C.S. to the petitioners, which was returned undelivered to the respondent No. 1 with the endorsement "still closed". It is also the case of the respondent that the petitioners were nformed at their address i.e. the place of their business, as supplied by them to the respondent and as shown by them in Suits Nos. 390 of 1987 and 391 of 1987 and Appeals Nos. 65 and 66 of 1993. The respondent has also pointed out that the petitioners have shown the same address in this petition, but suppressed their present address and whereabouts deliberately in order to avoid payment of the huge decretal amount outstanding against them. The x respondent has maintained that initially the decretal amount was Rs. 2.25 crores, but, now, including the interest, the amount must have exceeded rupees five crores. According to the respondent, the petitioners, have shifted to an unknown address and it is very difficult to locate them. In order to appreciate the contentions raised on behalf of the petitioners, it would be advantageous to reproduce section 25-B of the Ordinance, which is as follows:- "Section 25-B: Recovery of certain dues of banking companies as arrears of land revenue.—Loans and advances made by a Banking Company for agricultural purposes and the amounts decreed by any C^urt in favour of a Banking Company or a financial institution specified in section 3-A shall be recoverable as an arrear of land revenue as if the Banking Company were a local authority for the purposes of section 5 of the Revenue Recovery Act, 1980 (I of 1980):- Provided that no sum shall be so recoverable unless the Banking Company has, by notice in writing informed the debtor, not less than fifteen days before proceeding to have it so recovered, that he may repay by such instalment as may be fixed in the notice and that action to have the debt recovered as an arrears of land revenue will be taken if he fails to pay any instalment on or before the due date." Mr. S.M.A. Mehmood learned counsel for the petitioners strenuously argued that the notice, as envisaged by the proviso of section 25- B of the Ordinance, was not served upon the petitioners and this being a violation of a mandatory provisions the entire proceedings thereafter, including issuance of the impugned notice, are illegal and on this ground alone, the impugned notice is liable to be quashed. Learned counsel also submitted in absence of said notice the respondent No. 2 could not assume jurisdiction and the whole exercise done by him is coram non judice and illegal ab initio. The above contentions have no force. The respondent No. 1 in the counter-affidavit clearly stated that the notice, in writing, as required by section 25-B of the Ordinance informing the petitioners to pay the decretal amount, was issued to them. A copy of said notice is available on record. It is dated llth December, 1993. Said notice was sent through Courier Service and the Consignment Note No. 5492977-C of Courier Service is on record with an endorsement "still closed". It being so, it cannot be argued that the notice was not sent to the petitioners. The disputed facts cannot be investigated. Even if there is a possibility of difference of opinion, still the issue of disputed facts cannot be probed, while exercising jurisdiction under Article 199 of the Constitution. Learned counsel next argued that under section 25-B of the Ordinance only those loans and advances could be recovered as arrears of land revenue, which were given for agricultural purposes. He submitted that the amount in question was not advanced to the petitioners for the said purpose, as such, it could not be recovered as land revenue. Above contention is totally misconceived. By virtue of amendment brought by Ordinance No. Ill of 1994 and Ordinance No. LXTV of 1994 in the Banking Companies Ordinance, 1962, besides, the loans and advances given for agricultural purposes, any other amount decreed by any Court in favour of the Banking Company or a Financial Institution specified in section 3-A can also be recovered as arrears of land revenue. It is an admitted fact that the . two suits mentioned above have been decreed in favour of the respondent No. 1 and the appeals preferred against them have been dismissed. Thus, the rights of the parties have been conclusively determined. It being so, the respondent No. 1, view of the amendment referred to above, read with subsection (3) of section 8 of the Banking Companies (Recovery of Loans) Ordinance, 1979, is entitled to recover the decretal amount, outstanding against the petitioners as land revenue. In fact, it is at the option of the respondent No. 1 either to recover its dues as land revenue, or in any other appropriate manner. Although, the petitioners in their petition have quoted section 25-B of the Ordinance, they have not mentioned anything about said amendment. Inf act, they quoted unamended section 25-B of the Ordinance. This petition was filed on 13.10.1994, while the Ordinance No. Ill of 1994 and Ordinance B No. LXTV of 1994 were published in Gazette of Pakistan on 13th January, 1994 and 27th September, 1994, respectively. Prima facie, it appears to be the case of deliberate misrepresentation/concealment of facts on the part of the petitioners. Exercise of jurisdiction under Article 199 is discretionary in nature. No one can claim the exercise of discretionary power as a matter of right. In this case, demonstrably the equity is on the side of the respondent. The petitioners did not pay the amount as per terms of Agreement, nor they paid it after the aforesaid two suits were decreed and appeals were dismissed, nor they, now want to liquidate their liability. Manifestly, they are only interested to avoid payment of the amount outstanding against them, which now have exceeded to more than Rupees five crores. They have not come to the Court with clean hands. The amount "outstanding against them as a Public Money and on that score also they are not entitled to any leniency. Accordingly, we do not find any merit in this petition and the same is dismissed. (M.Y.F.K.) Petition dismissed.

PLJ 1996 Karachi 1086 PLJ 1996 Karachi 1086 Present: abdul latif QURESHI, J. MUHAMMAD ISHAQ-Appellant versus Syed MUHAMMAD ZUBAIR-Respondent First Rent Appeal No. 532 of 1992, decided on 19th November, 1995. (i) Sindh Rented Premises Ordinance (XVII of 1979)- —Ss. 2(f) & 15-Qanun-e-Shahadat Order, 1984, Art. 73 & 79-Ejectment- Suit for-Relationship of landlord and tenant denied--Suit decreed- Appeal to—Both the witnesses Who are signatory to the agreement have deposed that they have signed the tenancy agreement--By doing this respondent has proved the execution of tenancy-Appellants in their written statements and evidence admitted that originally the premises was in possession of the respondent-They also admitted that they have not paid rent to respondent after 1970-Held : Respondent has sufficiently discharged his onus for proving that he is land lord whereas default is admitted by appellants-Appeals dismissed. [P. 1088] A & B (b) Sindh Rented Premises Ordinance (XVII of 1979)- —Mere pendency of a Civil suit regarding ownership of premises will not automatically stay the proceeding of rent case or rent appeal-If any party want stay of rent proceedings they can apply to the Court where the suit regarding ownership of property is pending for such a stay. [P. 1088] C Mirza Waqar Hussain, Advocate for Appellant. A. Karim Ayub, Advocate for Respondent. Date of hearing: 2.11.1995. judgment Both the F.R.As. 531 and 532 of 1992 are disposed of by this common judgment as both the appeals pertain to portions of same premises and the facts and circumstances in both appeals are identical. These appeals are field against the Orders of III Senior Civil Judge and Rent Controller, Karachi South, passed on 15.10.1992 ordering ejectment of the appellants. The respondent filed Ejectment Applications Nos. 415 of 1990 and 416 of 1990 against Muhammad Ishaq appellant in F.R.A. No. 532 of 1992 and Abdul Shakoor, appellant in F.R.A. No. 531 of 1992 stating therein that he is landlord of the property situated at Plot No. 143 (old No. 137-B Area and 164 Mac-1) Survey No. 140 Mac-1, Mehmoodabad, Karachi of which he rented out two separate portions to represent appellants in October, 1970 and that both appellants are chronic default. Appellants in their respective written statements denied relationship of landlord and tenant and averred that both of them have purchased the premises from the respondent for the consideration of Rs. 25,000 each and physical possession of the portions of the premises were handed over to them. It was further averred that the respondent by playing fraud and misrepresentation obtained lease of the premises from KMC in 1983 in his name, as such, appellants have jointly filed a civil suit against the respondent for declaration and cancellation of the lease deed before the Original Side of this Court being Suit No. 347 of 1989 which is still pending. Respondent examined himself and Zahid Hussain in both the ejectment applications and Abdul Karim in MRC No. 415 of 1990 and Abdul Latif in MRC No. 416 of 1990. Both the appellants examined themselves as well as Syed Amer Ali Zaidi and Noor Muhammad. On the pleadings of the parties the learned Rent Controller set the following points for determination in both the applications: - (1) Whether there exists relationship of landlord and tenant between the applicant and opponent? (2) Whether opponent has committed default? (3) What should the order be? The finding of the Rent Controller on points 1 and 2 is in affirmative, as such, appellants were ordered to hand over vacant possession of their respective premises to the respondent within a period of one month. Heard the learned counsel for the appellants as well as counsel for respondent. From the pleadings as well as-evidence it is clear that the premises was in possession of the respondent who transferred its possession to the appellants in the year 1970 which according to the respondent is as tenants and as per appellants as a purchaser. Relationship of landlord and tenant is denied by the appellants, as such, burden is on the respondent/landlord to prove the tenancy. The agreement pertains to year 1970, as such, provisions of section 5 of the Sindh Rented Premises Ordinance do not apply to this agreement. In case of denial by the executing party the party relying upon it must prove its execution in accordance with the mode of proof laid down in Articles 73 and 79 of Qanun-e-Shahadat. Execution can be proved by a person who signed or wrote the document or a person in whose presence document was signed or written. In the instant case both the witnesses signatory to the agreement have been examined and they deposed that they have signed the tenancy agreement. Hence, by doing this the respondent has proved the execution of the tenancy agreement. Mere denial by the appellant regarding execution of this tenancy agreement cannot be relied upon unless he had some convincing evidence in contrary and had examined the handwriting expert to disprove his signature, which he did not. Whether the respondent is legal owner or not at the time of tenancy agreement is not material as the definition of "landlord" given in section 2(f) of Sindh Rented Premises Ordinance is as under:- "(f) "landlord" means the owner of the premises and includes a person who is for the time being authorised or entitled to receive rent in respect of such premises." Appellants in their respective written statements and evidence led by them admitted that originally the premises was in possession of the respondent from whom he purchased the same for a valuable consideration. Appellants also admitted that they have not paid rent to respondent after 1970. For declaration of ownership the appellants have jointly filed a suit which is pending as such it cannot be presumed at this stage that they are the owner. In my opinion the respondent has sufficiently discharged his onus for proving that he is landlord of the premises. Coming to the conclusion that the relationship of landlord and tenant did exist between the parties the appellants were bound to pay rent to respondent which both of them have categorically denied to have paid rent to the respondent right from the incep­ tion of tenancy, as such, default is admitted by the appellants themselves. The other contention of the learned counsel for the appellants is that the premises is situated in Katchi Abadi and the allotment in Katchi Abadi ought to have been issued to the persons who were in possession at the relevant time. As the survey was carried out in 1983 when the appellants were in possession of the demised premises, grant of lease to the respondent by K.M.C. is by means of fraud and misrepresentation for which they have jointly filed a civil suit in High Court which is still pending, and the decision on the instant appeals be stayed till the final outcome of the suit. Mere pendency of a civil suit regarding ownership of the premises will not automatically stay the proceeding of rent case or rent appeal. If any party want stay of the rent proceedings they can apply to the Court where the suit regarding ownership of the property is pending for such a stay. Learned counsel for the appellants has referred to the case ofAlimuddin and another v. Muhammad Aslam and 2 others 1991 SCMR 850 where the eviction was ordered but the execution has been stayed for giving opportunity to the appellants to obtain interim order or relief otherwise from the competent Civil Court, according to dictates of justice, as the case would be subject to final verdict in the general jurisdiction of the Civil Court. In view of the above discussion I uphold the orders of the trial Court and dismiss both the appeals. But keeping in view the dictum laid down in case ofAlimuddin and others v. Muhammad Aslam and 2 others 1991 SCMR 850.1 allow four months' time to the appellants for vacating the premises in dispute so as to enable them to seek interim relief, if any, against their eviction from the Court where the very suit is still pending. (M.Y.F.K.) Appeals dismissed.

PLJ 1996 Karachi 1089 PLJ 1996 Karachi 1089 Present: G.H. MALIK, J. A. MAJID SAMA-Plaintiff versus THE ASBESTOS CEMENT INDUSTRIES, LTD. and another-Defendants Suit No. 675 of 1976, decided on 5th October, 1995. Sind Rented Premises Ordinance (XVII of 1979)-- —-Suit for recovery of damages-Plaintiff died during pendency of suit, hence cause of action has not survived the death of plaintiff and the suit has abated-Suit dismissed. [P. 1092]A 1990 CLC 404, PLD 1961 Kar. 88, PLD 1967 KaR. 755 ref. Mr. AzharAli Siddiqi, Advocate for Plaintiff. Mr. Ashiq Mi Abdullah, Advocate for Defendants. Date of hearing: 5.10.1995. judgment The plaintiff has filed this suit for recovery of Rs. 51,000 by way of damages on account of alleged defamation. It is alleged that defendants Nos. 1 and 2 by writing letter dated 7th July, 1976 (Annexure-C to the plaint) and by sending a copy thereof to the then Minister of State for Labour and Manpower, Government of Pakistan defamed the plaintiff. A photocopy of that letter shows that in response to the plaintiffs application to be appointed a dealer of the defendants, which had been recommended by the Minister, the defendants wrote the letter in question to the plaintiff stating, inter alia, that the plaintiff had attempted to obtain dealership on fraudulent grounds. There is no indication on the photostat copy of the letter that a copy thereof was sent to the Minister; but the stand of the defendants is that the letter in question was not defamatory and that, in any case, the defendants were entitled to send a copy thereof to the Minister because the plaintiff had forwarded his application for dealership alongwith the recommendation from the Minister. It would, thus, appear that the defence of the defendants is that the contents of the letter in question were not defamatory and, that, in any case, it was privileged communication. Be that as it may, the plaintiff has died during the pendency of this suit and the question has arisen whether or not the cause of action his survived to his legal representatives. Mr. Ashiq All Abdullah submits that cause of action has not survived to the legal representatives of the plaintiff. He relies on the following cases:- (1) Sardar Muhammad All v. Pakistan PLD 1961 Kar. 88. (2) Mercantile Cooperative Bank v. M/s Habib & Co. and others PLD 1967 Kar. 755. (3) Government of Punjab v. Mst. Kamina and others 1990 CLC 404. Mr. Azhar Ali Siddiqi had, on the previous dates of hearing, contended that it was held in the cases of Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Syed Gayoor Hussain Shah v. Aziz A/am PLD 1990 Lah. 432 that the rights of property and the rights of reputation are placed on equal footing under the Islamic law; and that since the right of property survives on the death of the owner, the right of reputation also survives. On the 2nd May, 1995, after Mr. Siddiqi had made this submission the hearing was adjourned to enable him to address further argument. The case then came up on 8th May, 1995, but was adjourned for want of time. Today Mr. Azhar Ali Siddiqi is not present and Mr. Moen Azhar on behalf of Mr. Siddiqi has not addressed any further argument. In the case of Sardar Muhammad Ali v. Pakistan, the suit had been filed by the plaintiffs, Sardar Muhammad Ali and his wife Sahibzadi Amir Begum for damages for mental shock, physical pain and humiliation of ladies of the plaintiffs' family by the defendant. During the pendency of the suit plaintiff No. 2 Sahibzadi Amir Begum, died and the question was whether the cause of action survived to her heirs. It was held by A.S. Farooqui, J., that the pain, suffering and assault would have to be necessarily restricted to such claim as the original two plaintiffs could make on their own account and that it could not be urged that the father and the mother of the original plaintiffs could claim compensation for the alleged tort committed to their children. It was further held that after death of Sahibzadi Amir Begum her right of action in regard to tort relating to her detention, injury and humiliation must be held to have died with her on the principle of actio personalia mortiur cum persona. In the case of Mercantile Cooperative Bank v. M/s. Habib & Co., A.S. Farooqui, J., again held that maxim actio personalis mortiur cum persona is part of law of Pakistan and is enforced upon the grounds of justice, equity and good conscience. There the plaintiff had filed a suit against sole proprietor of defendant-company claiming damages for acting negligently in performance of his duly as Auditor of the Company. The cases cited by Mr. Azhar Ali Siddiqi do not support the proposition that the right to sue for damages for defamation survives the death of the person who has been defamed. In the case of Muhammad Akram v. Mst. Farman Bi the petitioner had sued the respondent for restitution of conjugal rights, alleging, falsely, as it was found, that she was his wife; and, upon the dismissal of that suit, the respondent had filed a suit against the petitioner for damages for malicious prosecution. It was held that such a suit was maintainable; that for the purpose of suing for damages for malicious prosecution, the distinction between 'civil prosecution' and 'criminal prosecution' was not well founded; and that the common law of England in this respect is no more an authority in this country. It was, in the context observed that right of good reputation has been given equal place with right to property in Islam. In the case of Ghayyur Hussain Shah v. Ghrib Mam, the respondent had lodged a false First Information Report against the appellant, and, consequently, the appellant sued the respondent for damages for malicious prosecution. The suit was decreed by the trial Court but the decree was reversed in first appeal; and the appellant, having filed the second appeal, died during the pendency thereof. The question, therefore, arose whether the suit as well as the appeal abated; and it was held that they did not Consequently, the appeal was accepted, the first appellate judgment was set aside and the judgment of the trial Court was restored. It was held, inter alia, that the rule that an act of the Court shall prejudice no one applied in the circumstances of the case as the situation would not have arisen but for the delay in the disposal of the appeal which had been filed as far back as 1966; and also because the first appellate Court had proceeded on wrong view of the law which resulted in the decree being set aside. The case is, thus, distinguishable on facts. In the circumstances, it is clear that the cause of action has not survived the death of the plaintiff and the suit has abated. It is, therefore, dismissed accordingly. (M.Y.F.K.) Suit dismissed.

PLJ 1996 Karachi 1092 PLJ 1996 Karachi 1092 Present: rana bhagwan das, J. PAN OCEAN ENTERPRISES (PVT.) LTD. and 4 others-Plaintiffs Versus FAYSAL ISLAMIC BANK OF BAHRAIN and others-Defendants Suit No. 276 of 1994, decided on 18th December, 1995. Civil Procedure Code (V of 1908)-- —-O.XXXVII, R. 3-Suit for recovery-Application for grant of leave to appear and defend-Defendnats have arguable issues which required determination after recording evidence-Defendant Bank is established under a license from State Bank and also registered under provisions of Companies Ordinance, 1984, therefore, claim of plaintiffs, if decreed, is not likely to be defeated-Declarations asked by plaintiffs involve serious questions of law and fact cannot be determined under summary procedure-Leave to defend and appear granted. [P. 1093] A to D Mr. Iqbal Kazi, Advocate for Plaintiffs. A.H. Mirza, Advocate for Defendant. order In this suit for recovery of Rs. 1,16,55,355 under the Banking Companies (Recovery of Loan) Ordinance as well as declaration with regard to legality or otherwise of the Morabaha transactions between the parties, authority of the defendant-Bank to charge mark-up and the sale of share and securities belonging to plaintiffs as without lawful authority and a claim for damages on account of harassing and mental torture, defendant-Bank seeks leave to defend the suit under the provisions of Order XXXVII, Rule 3, C.P.C. 2. From the material on record, it appears that there was an agreement between the parties to allow facility to the tune of Rs. 60,00,000 which was later raised to Rs. 1,15,00,000 on Morabaha basis with hypothecation of goods and pledge of shares of the public limited companies. A number of documents were exchanged between the parties and all went well for some time when the facility was not renewed and the defendant- Bank called upon the plaintiffs to pay up the amount outstanding against them alongwith mark-up. 3. In support of its application for leave to defend, defendant-Bank has filed a copy of the plaint filed against the plaintiffs in Suit No. 1163 of 1994 for recovery of Rs. 21,28,573 and liquidated damages worth of Rs. 4,25,714 and a number of other documents to show the transactions between the parties. Referring to the documents on record, it is contended that the defendant-Bank has disposed of a large number of shares pledged with it by the plaintiffs, without their permission in the market and adjusted sale proceeds towards their account. 4. On a careful scrutiny of the rival claims of the parties as well as relevant documents on record, I am of the considered view that the defendants have raised arguable issues which required determination after recording evidence. 5. Even otherwise defendant foreign Bank is established under a licence from the State Bank of Pakistan under the law and also registered under the provisions of Companies Ordinance, 1984, therefore, the claim of the plaintiffs, if decreed, is not likely to be defeated as the Bank obviously has huge assets at its credit. 6. There is another aspect of the case. The plaintiffs have asked for a number of declarations which involves serious questions of law and fact and cannot be determined under the summaiy procedure prescribed in the Civil Procedure Code. Such determination would require recording of evidence by both the parties and is again a circumstance relevant for the grant of leave asked for. 7. In my view a fit case for the grant of unconditio al leave is made out. I, therefore, grant leave to defend and allow the defendant-Bank to file parawise written statement within four weeks. This disposes of C.M.A. No. 2586 of 1994. (M.Y.F.K.) Leave granted.

PLJ 1996 Karachi 1094 PLJ 1996 Karachi 1094 Present: dr. ghous muhammad, J. Haji ABDUL JALIL-Applicant versus ANJUMAN JAME MASHID HAQUANI-Respondents Revision Application No. 102 of 1994, decided on 22nd October, 1995. Civil Procedure Code, 1908 (V of 1908)-- —S. 115-Suit for Specific performance-Dismissal of-Revision to~No effort was made to allow parties to lead evidence in support of their respective pleas-Power under S. 115 can be exercised where subordinate Court had passed an order in excess of jurisdiction or where it failed to exercise the jurisdiction or where the order passed is based on no evidence or it is ased on inadmissible evidence or it is perverse or arbitrary or palpably unjust-Held: Impugned judgment is palpably unjust and is based on material irregularity in the exercise of jurisdiction, therefore it is set aside-Matter remanded to trial Court for decision afresh according to law. [P. 1096] A Mr. Muhammad Latif Shaikh, Advocate Applicant. S.H. Jilani, Advocate for Respondents. Date of hearing: 18.9.1995. judgment This revision application under section 115, C.P.C. has been filed to assail the judgment dated 16th February, 1994 passed by the 1st Senior Civil Judge Karachi, East (Mr. Inderyas Barkat) whereby suit for specific performance filed by the applicant against the respondent was dismissed. The dispute in this matter is related to Shop No. 36G-Burmi Colony, Landhi, Karachi . It is alleged that on 15.7.1993 the shop was vacated by the applicant and handed over temporarily possession of the same to the respondent for raising new construction, however, the applicant was allegedly kept on false hopes, therefore, he filed the suit for specific performance and prayed for the following reliefs: - (a) To specifically perform their promise by delivering to plaintiff possession of Shop No. 31 Jame Masjid Haquani 36-G, Landi. (b) Permanent Injunction against defendants restraining them to refrain from inducting any other tenant. The respondent filed his written statement wherein he denied that the applicant was a tenant. It also stated that the applicant was tenant of the shop in question hut he voluntarily vacated the same and handed over its possession to the defendant on 23.7.1993 as he wanted to shift his embroidery workshop to some spacious premises. The respondent also took up preliminary objection in the written statement regarding the maintainabilily of the suit itself. On the pleadings of the parties the learned trial Court settled the following issues: - (1) Whether there is any privity of contract between the parties and the plaintiff has no locus standi to file the above suit? (2) Whether the possession of suit premises was handed over to the defendant for the purpose of new construction of Madressa thereon? (3) Whether the defendant had promised to return the possession to the plaintiff within the period of one and hah month? (4) Whether defendant was competent to enter into contract of lease with another tenant during statutory tenancy period? (5) Whether defendant backed-out his promise and dispossessed plaintiff otherwise the due course of law? (6) Whether the suit is not maintainable? (7) What should the decree be? No evidence was recorded by the learned trial Court and after considering issues Nos. 1 and 2 as legal issues and without giving any finding on the remaining issues the suit was dismissed. I have heard learned counsel for the parties Issues Nos. 1 and 2 as framed are issues of law and facts but surprisingly the learned trial Court without any evidence on record came to the conclusion that there was no privity of contract between the parties. It was further held, inter alia, as follows:- "Even if the evidence to this effect was recorded there will be word against word, as such in my opinion, when no agreement or contract in writing is brought on record by the plaintiff, he cannot take intervention of the Court and ask for relief of specific performance." The above conclusion is based on no evidence and no effort was made to allow the parties to lead evidence in support of their respective pleas. Therefore, the findings of the learned trial Court of Issues Nos. 1 and 2 being arbitrary and palpably unjust are legally unsustainable. Learned counsel for the respondent submitted that the powers under revisional urisdiction are limited as it applies only to cases involving the illegalassumption non-exercise or the irregular exercise of jurisdiction. This submission of the learned counsel is correct but he failed to give any convincing reply when confronted with the observations of the learned trial Court to the effect that no agreement has been produced by the applicant in order to establish the fact that the premises in dispute was delivered by him to the respondent on the condition that after reconstruction the respondent would deliver the possession of the same to the applicant/plaintiff, power under section 115 can be exercised where the subordinate Court has passed an order in excess of jurisdiction or where it failed to exercise the jurisdiction or where the order passed is based on no evidence or it is based on inadmissible evidence or it is perverse or arbitrary or palpably unjust. , Yet another important aspect of the matter is that the learned trial Court did not give any finding on the remaining issues. While disposing of Revision Application No. 79 of 1984 on 30.7.1995 this Court had observed inter alia, as under: - "Time and again it has been the practice of the subordinate Courts to avoid giving findings on all the issues before it. Such a practice is to be deprecated as the same causes undue delay. Attempts should be made by the Courts to give a finding on each and every issue before it so that at the appellate or revisional stages all issues can be agitated and there is little scope of remanding the case back for adjudication on these issues on which a finding had not been iven." The upshot of the above discussion is that the impugned judgment is palpably unjust and is based on material irregularity in the exercise of the jurisdiction therefore, it is set aside and the matter is remanded to the learned trial Court for decision afresh according to law after giving a reasonable chance of hearing to the parties and their learned advocates. (M.Y.F.K.) Case remanded.

PLJ 1996 Karachi 1097 PLJ 1996 Karachi 1097 Present: hamid Au MlRZA, J. M/S. JODHPUR RAJASTAN COOPERATIVE HOUSING SOCIETY LIMITED-Appellants versus Mst. YASMEEN AZIZ-Respondent First Rent Appeal No. 429 of 1994, decided on 17th March, 1996. (i) Sindh Rented Premises Ordinance, 1979 (XVII of 1979)-- —Ss. 2, 15,16, 18 and 21-Application for ejectment-Acceptance of-Appeal to-There is no evidence on record that appellants/tenants tendered rent within thirty days from the date of service of notice of ejectment application-It is the liability of appellants to tender rent and it is not the responsibility of respondent/landlord to go and collect rent from them- Testimony of respondent's attorney and her witness could not be shaken in cross-examination-It was not necessary for Rent Controller to pass an order under section 16(1) for deposit of rent in respect of arrears due- Father of respondent has filed his affidavit wherein he has stated that respondent was owner and landlady of premises-Held: There remained nothing for appellants to deny tenancy when they have been previously making payment to her father in the capacity of rent Collector-Appeal dismissed. [Pp. 1100 & 1101] A & B PLD 1988 SC 190, PLD 1988 SC 2280,1992 SCMR 2400 ref. (ii) Sindh Rented Premises Ordinance (XVII of 1979)-- —S. 15-Bonafide need of respondent in ejectment application-Test of- Statement of respondent/landlady that after her marriage she would shift in her own flat is reiterated by her attorney and father in the affidavit-inevidence which has not been shaken in cross-examination-Even no suggestion was made to him that need of respondent was not based on bona fide and good faith-It is settled law that if no suggestion is made to challenge the statement, it would mean that said assertion has been accepted-Appeal dismissed. [P. 1101] C ArifBilal Sherwani, Advocate for Appellant. Nemo of Respondent. Date of hearing: 17.3.1996. judgment This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 31.5.1994 passed by ni Senior Civil Judge, Karachi, Central, in Rent Case No. 1513/93, Mst. Yasmeen Aziz v. M/g Jodhpur Rajastan Cooperative Housing Society Ltd. whereby an application under section 15 of the Rent Ordinance filed by respondent/landlady was allowed and appellants/tenants were directed to hand over the vacant possession within sixty days from the date of impugned order subject return of advance amount of Rs. 7,000 to the appellant/tenant Brief facts of the case are that the respondent/landlady filed ejectment application under section 15 of Rent Ordinance against the appellants/tenants in respect of Flat No. B-II/2, Nawaz Court Water Pump, F.B. Area, Block 16, Karachi, which was on rent at the agreed rate of Rs. 900 per month on the ground that she needed the said flat premises for her own personal use and that the appellants/tenants have failed to tender rent from March, 1993 to July 1993 and were, thus, liable to be evicted. The respondents filed written statement wherein they stated that tenancy agreement dated 1.3.1984 was executed between Aziz Ahmed the father of the present respondent on one side and appellants/tenants on other side and thereafter again in February, 1989 another tenancy agreement was executed by Aziz Ahmed, father of the applicant on one hand and the appellants/tenants on the other hand. It is stated that rent for the month of April 1993 was paid against the receipt thereafter rent collector did not come to collect rent during the months of May and June, 1993 and rent for the said two months was sent through cheque dated 25.7.1993 and then appellant sent rent for the months of July 1993 and August 1993 through letter dated 15.8.1993 and notice as required under section 18 of the Rent Ordinance was served upon the appellants/tenants therefore, there was no default in the payment of rent and the alleged personal requirement was mala fide. Learned Rent Controller on the pleadings of parties settled the following issues:- (1) Whether the opponent committed wilful default in payment of rent? (2) Whether the applicant requires the premises in question for her personal bona fide use? (3) What should the order be? The respondent/landlady filed affidavit of her father her attorney Mr. Aziz Ahmed who has produced photocopy of general power of attorney Exh. A/1, photocopy of mutation order of K.D.A. dated 26.3.1991 in favour of respondent/landlady as Exh. A/2, engagement card Exh. A/3, decoration charge Exh. A/4, photocopy of rent receipt Exh. A/5 and affidavit-inevidence of Mr. Shabbir Ahmed. The appellant/tenants examined Mr. S.M. Tahir, Secretary of the appellants who has produced photocopy of agreement Exh. O/l, copy of letter, dated 25.7.1993 Exh. O/2, postal registration receipt and A/D receipt Exhs. O/3 and O/4, letter dated 15.8.1993 as Exh. O/5, postal receipt of Exh. O/6, A/D receipts as Exh. O/7 and O/8, photocopies of rent receipts Exhs. O/9 to O/34, photocopy of agreement Exh. O/35 and affidavit of Mehmood Baig. After recording the above evidence and hearing the learned counsel for parties, learned Rent Controller passed the impugned order against which present appeal has been preferred. I have heard Mr. Arif Bilal Sherwani, learned counsel for appellants only as the respondent and her counsel have remained absent without any intimation though repeatedly called since morning. Learned counsel Mr. Arif Bilal Sherwani has argued that learned Rent Controller should have framed issue of relationship of landlord and tenant between the parties as such plea was raised by him in the written statement. I have gone through the written statement filed by the appellants/tenants. I do not find specific denial on the part of the appellants in respect of their being not tenant of respondent except that it has been stated in para. 3 of the written statement that "opponent/landlord is Mr. Aziz Ahmed son of Abdul Ghani and that no notice as required under the law for the change of ownership has been received by the opponent". No suggestion in the cross-examination to Mr. Aziz Ahmed. Attorney of the respondent/landlady has been made that respondent was not landlady of the appellants/tenants. Exh. A/2 is the mutation order dated 26.3.1991 which showed that respondent was the owner of the flat premises which she has got it through gift deed from her grandfather Abdul Ghani. Ejectment application was filed on 21.7.1993 before the Rent Controller. Filing of ejectment case would amount to notice within the meaning of section 18 of the Rent Ordinance. The object of section 18 of the Rent Ordinance is to enable the tenant to know was to whom he has to pay the rent and when ejectment application is filed it would amount to a notice within the meaning of section 18 of the Rent Ordinance. Non-service of notice under section 18 of Rent Ordinance, on the tenant would not amount to negation of the relationship of landlord and tenant between the parties. Reference is made to Mqj. (Retd.) Muhammad Younus v. Mehrajuddin 1986 SCMR 751, Muhammad Ragib v. Abdul Razak PLD 1994 Kar. 20 and Pakistan National Shipping Corporation v. M/8. General Service Corporation 1992 SCMR 871. As soon as the appellants/tenants came to know that the respondent/landlady has become owner by virtue of mutation order Exh. A/2, then within the 30 days from the date of service of notice of filing of ejectment application the rent due should have been paid. In the instant case, the appellants/tenants appeared through their Advocate who filed power of attorney on 3.8.1993 and filed written statement and affidavit-inevidence of S.M. Tahir wherein he stated that appellants have paid rent up to April 1993 and thereafter the rent collector did not come to collect rent therefore, rent for the months May and June, 1993 was sent through cheque and thereafter again rent was sent for two months through cheque for July, 1993 and August, 1993 but the same returned undelivered. It would mean that from May, 1993, the appellant/tenant, did not tender rent to the respondent/landlady even within thirty days after filing of ejectment case on 21.7.1993. The alleged tender of rent through cheque is no tender within the meaning of section 10 of Rent Ordinance. There is no evidence on record that the appellants/tenants tendered rent within thirty days from the date of service of notice of ejectment application upon the appellants/tenants. It is the liability of the appellants/tenants to tender rent and it is not the responsibility of the respondent/landlady to go and collect rent from the appellants/tenants. Admittedly, rent as para. 5 of tenancy agreement Exh. A/1 was payable by 5th day of each month in advance according to English Calendar but rent for the month of May, 1993 was not paid by 5th of May, 1993 to the respondent. Reference is made to Mst. Zarina Khawaja v. Agha A Mahboob Shah PLD 1988 SC 190, Syed Asgharali Imam v. Muhammad All PLD 1988 SC 228 even if it be said that in view of Shezan Ltd. v. Ghaffar Khan 1992 SCMR 2400 the appellants/tenants became statutory tenant then also rent for the month of May, 1993, was to be paid by 30th of August 1993 but no rent for the said month as well as for the months of June and July, 1993 and onwards was not paid within the meaning of section 15(2)(ii) of Rent Ordinance. Testimony of respondent/landlady's attorney and her witness could not be shaken in the cross-examination. Learned counsel for appellants even did not put suggestion in the cross-examination of Aziz Ahmed that the rent for the May and June, 1993, July, 1993 and August, 1993 was sent through two separate cheques to him though remittance of rent through cheque was not due tender within the meaning of section 10 of Rent Ordinance. There is also no evidence in the shape of cheque or any letter from the bank on record to show that cheques were sent to the respondent or to her attorney or presented for payment. It was not necessary for the Rent Controller to pass an order under section 16(1) for deposit o rent in respect of arrears due. It was the responsibility and liability of the appellant/tenants to make payment as required by law. The appellant/tenant cannot escape the liability of payment of rent by stating that he was not called upon by the Rent Controller to make payment. Father of the respondent/landlady has filed his affidavit wherein he has stated that respondent was owner and landlady of the premises, there remained nothing for the appellants/tenants to deny the tenancy when the appellants themselves have been previously making payment to her father in the capacity of the rent collector on behalf of his father. In fact, the appellants have admitted the respondent as landlady, the only ground for their denial was that they had not received notice as required by section 18 of the Rent Ordinance which contention was devoid of merit and force. I do not find any substance in the contentions of the learned counsel for appellants and do not find any illegality with the finding on the point of default in the payment of rent by the appellants/tenants hence no exception could be taken to the finding of the learned Rent Controller. Next contention of the learned counsel for appellants is that need of the respondent/landlady is not bona fide one and is not based on good faith. The statement on the point of bona fide need of the respondent/landlady in the ejectment application that after her marriage with her cousin she would shift in her own flat premises is reiterated by her attorney and father in the affidavit-in-evidence which has not been shaken in the cross-examination or rebutted by the appellants/tenants. Even no suggestion was made to Aziz Ahmed, the father and attorney of respondent/landlady that the need of the respondent/landlady was not based on bona fide and good faith. Nothing was suggested to Shabbir Ahmed the uncle of respondent/landlady in respect of need of the respondent/landlady that the same was not bona fide or not based on good faith. It is settled law that if no suggestion is made to challenge the statement in the cross-examination it would mean that the said assertion has been accepted. Accordingly, contention of the learned counsel for appellant has to substance that the respondent/landlady has not proved the bona fide need in respect of flat premises. In view of the aforesaid reasoning, I do not find merits in this appeal which is hereby dismissed, however, the respondent is directed to refund the deposit to the appellants. The appellant/tenant is, however, given sixty days' period to vacate the premises subject to deposit of rent for the said period in the office of Rent Controller. (M.Y.F.K.) Appeal dismissed.

PLJ 1996 Karachi 1102 PLJ 1996 Karachi 1102 Present: abdul majid khanzada, J. MUHAMMAD HANEEF-Petitioner Versus UMER DARAZ KHAN--Respondent Civil Revision Nos. 13 of 1994 and 150 of 1986, decided on 12th February, 1996. Civil Procedure Code, 1908 (V of 1908)- —S. 115—Gift-Whether delivery of possession is not a necessary part of a valid Gift-Question of--Perusal of gift deed reveals that offer and acceptance of gift are present, but third ingredient, which is most important to constitute a valid gift is delivery of possession of gifted properly by donor to donee is missing--In gift deed no where it is mentioned that possession of house in dispute was ever delivered to petitioner /donee-Gift in question is not a valid gift-Revision petition dismissed. [P. 1105] A Moohan Lai, Advocate for Petitioner. Abdul Hameed Khan, Advocate for Respondent Date of hearing: 31.1.1996. judgment This is Civil Revision Application under section 115, C.P.C. preferred against the Judgment/Decree passed by learned 1st Additional District Judge, Larkana dated 30.6.1986 in Civil Appeal No. 4 of 1981 confirming the Judgment/Decree passed by the First Senior Civil Judge, Larkana dated 13.12.1980, in F.C. Suit No. 35 of 1974. 2. Briefly stated the facts which lead to this Revision are that the respondent (Umer Daraz) filed Civil Suit No. 35 of 1974 for Declaration that the house bearing No. 904/F, Ward "C", Larkana having purchased in the name of his father Fayyaz Khan from the Settlement Department, was a benami transaction and that he was the real owner of the same. He further sought declaration that the gift deed executed by Fayyaz Khan in favour of petitioner (Muhammad Haneef) was void and illegal. 3. That both the abovesaid suits were consolidated by the trial Court and following consolidated issues were framed:- (1) Whether Umer Daraz purchased the house in the name of Fayyaz Khan or whether Fayyaz Khan purchase it? (2) Whether Fayyaz Khan remained in possession of the suit property? (3) Whether Muhammad Haneef allowed Umer Daraz to occupy the house in suit as a licensee? If so, to what effect? (4) Whether the gift of the house in suit in favour of Muhammad Haneef is void and of no legal effect? (5) Whether Muhammad Haneef has remained in possession of the suit property? (6) Whether Muhammad Haneef is the lawful owner of the house in suit? (7) What should the decree be? 4. The parties to both the suits led oral as well as documentary evidence in support of their cases. Umer Daraz examined himself at Exh. 88 and produced documents at Exhs. 89 to 92 and also examined witness Ghulam Sarwar at Exh. 93, and closed his side under statement at Exh. 94; while Muhammad Haneef examined himself at Exh. 95 nd produced documents at Exhs. 96 to 97 and also examined Mr. Kewalram, Advocate at Exh. 98 and closed his side vide Exh. 99. 5. That the learned trial Court vide its judgment dated 13.12.1980 partly decreed the suit of Umar Daraz to the extent that he is owner of the disputed issue of 0.50 paisas share in it and he should not be interfered with his possession to this extent by Muhammad Haneef and other hires of Abdul Hameed. The suit of Muhammad Haneef for possession against Umer Daraz was dismissed and the legal heirs of late Ab/lul Hameed including Muhammad Haneef who are owners of 0.50 paisas share in the disputed house are at liberty to file suit for partition and possession against Umer Daraz. 6. That against the abovesaid judgment of trial Court, Muhammad Haneef filed two Appeals Nos. 3 and 4 of 1981 which were allowed by learned 1st Additional District Judge, Larkana vide judgment dated 4.3.1982, whereby the suit filed by Muhammad Haneef was decreed and the suit filed by Umer Daraz was dismissed. Against this judgment Umer Daraz filed evision Application No. 29 of 1982 in the High Court of Sindh, Sukkur Bench of Sukkur which was heard and decided vide judgment dated 6.11.1983 and the operative part of it reads as under: - "From the judgment of the learned first Appellate Court, it is patent that the question of handing over of the possession was very much agitated by the parties. However, the learned first Appellate Court proceeded on the erroneous assumption that the delivery of possession was not required as observed hereinabove in para. 4. 1 would therefore, allow this revision to the extent that I would remand the case to the first Appellate Court with the direction that after hearing the parties to record its finding on the question, whether factually the possession of the suit house was given by Fayyaz Khan to the respondent in order to complete the gift. The appeal may be disposed of in accordance with law after recording the finding on the above question. The learned first Appellate Court shall be at liberty to record additional evidence on the above point in case if it considers it necessary." 7. That on remand the parties put their appearances before the learned first Appellate Court and did not lead any additional evidence in support of the point of the factual delivery of possession of the house in question nor the first Appellate Court deemed it necessary to record the additional evidence on the said point as according to him the evidence on the said point as already available and, therefore, no additional evidence was recorded. After hearing the learned advocates for both the parties, the learned first Appellate Court vide its judgment dated 30.6.1986 dismissed the Appeal No. 4 of 1981, by determining that the possession of the suit house was not actually delivered by Fayyaz Khan to bis grandson appellant Muhammad Haneef, at the time of making the gift deed in respect of the suit house. And since the possession of the suit house is not proved to have/had been actually delivered to appellant Muhammad Haneef by his grandfather Fayyaz Khan, the appellant Muhammad Haneef cannot claim the ownership of the suit house on the basis of the gift deed produced by him in the trial Court. 8. Being aggrieved by the judgment dated 30.6.1986 passed by the first Appellate Court, the petitioner Muhammad Haneef has filed the instant Civil Revision Application. 9. I have heard Mr. Moohan Lai, Advocate for the petitioner and Mr. Abdul Hameed Khan, Advocate for the respondent and with their valuable assistance have gone through the entire record of the suit available in Court. 10. Mr. Moohan Lai, the learned advocate for the petitioner contended that Fayyaz Khan the grandfather of the petitioner Muhammad Haneef under a Registered Gift Deed dated 21.7.1969 gifted the suit house to Muhammad Haneef and the possession of the said house was given to him through his father as he was minor at that time. He argued that word "TO HOLD" is mentioned in the said gift deed, which means that possession was delivered. He also referred to the evidence of Muhammad Haneef who stated that in 1972 he had put the respondent Umer Daraz, who is his uncle, in possession of the house in dispute as a licensee and since the licence is revoked by Muhammad Haneef he is entitled to the possession. 11. In reply Mr. Abdul Hameed Khan, the learned advocate for the respondent argued that there is concurrent finding of fact on the point of validity of the gift deed due to non-delivery of possession, as such the said finding cannot be disturbed without the proof of misreading or non-reading of the evidence available on record. He contended that the word "to hold" does not mean the delivery of possession. He further argued that the revision can only be maintained if there is illegality, irregularity or want of jurisdiction; and not on the appreciation of evidence. In support of his plea, he relied upon following case law:- (1) 1972 SCMR 50, Ashiq Hussain v. Ashiq All. (2) PLD 1964 SC 143, ShamshadAli Shah v. S. Hassan Shah. (3) PLD 1994 Karachi 348, Mis Parueen v. Nizari Coop. H.S Limited Karachi and others. (4) 1986 CLC 1151, Mst. Sardar Begum v. Iqbal Ahmed and others. 12. I have given my anxious thought to the circumstances of the case and the points urged before me. The main document over which the entire dispute rests is the gift deed (Exh. 97). The perusal of the said gift deed reveals that there is offer by Fayyaz Khan in favour of Muhammad Haneef regarding giving the disputed house in gift; and there is also acceptance of the said gift by Abdul Hameed the father of Muhammad Haneef on his behalf as Muhammad Haneef was said to be minor at that time. The third ingredient which is most important to constitute a valid gift i.e. delivery of the possession of the gifted property by the donor to the donee is missing. In the said gift deed nowhere it is mentioned that the possession of the house in dispute was ever delivered to Muhammad Haneef, the donee, nor there is any endorsement to the effect that the possession of the same was received on behalf of the donee by his father Abdul Hameed. In view of the above legal position, the gift in question in respect of the house in dispute registered in the office of Sub-Registrar, Larkana in favour of Muhammad Hanif by his grandfather Fayyaz Khan is not a valid gift and does not create any right and citie in favour of Muhammad Haneef. The claim of Muhammad Haneef about the delivery of the possession of the house in suit is not supported by his witness Kewalram. The other two attesting witnesses have not been examined by the petitioner Muhammad Haneef. 13. Under the above circumstances, I have reached to the conclusion that the finding of the trial Court as well as of first Appellate Court in the instant revision does not call for interference, and in the result, the Revision Application No. 13 of 1994, is dismissed with no order as to costs. (M.Y.F.K.) Revision dismissed.

PLJ 1996 Karachi 1106 PLJ 1996 Karachi 1106 Present: RANA BHAGWAN DAS, J. DR. RIAZ MUSTAFA and 6 others-Appellants versus MUHAMMAD ABDUL AZIZ-Respondent First Rent Appeal No. 112 of 1985, decided on 3rd March, 1996. (i) Sindh Rented Premises Ordinance, 1979 (XVIII of 1979)-- —S. 15-Fjectment application-Dismissal of-Appeal to-A tenant is under a statutory duly to pay rent to landlord every month within 15 days of the date fixed for payment of rent and in absence of any agreement within 60 days of the month when the rent fell due for payment-Mere feet that landlady had been generous enough to accept accumulated rent for four months at a time would not mean that tenant was licensed to continue that practice at his own whim nor did it override statutory provisions of law-Held: From evidence on record coupled with admission of respon­ dent that disputed premises were let out to him on monthly rental basis and that rent was payable in advance, there is found willful and deliberate default on the part of respondent-Appeal allowed. [Pp. 1108 & 1110] A & B 1980 SCMR 506 ref. (ii) Sindh Rented Premises Ordinance, 1979 (XVIII of 1979)- —S. 15-Application for ejectment for making additions, alterations- Respondent himself admitted that he had raised construction on upper floor, besides, there is unrebutted and unchallenged evidence of Architect that said construction was un-authorised-Held: By making additions, alterations in the building without permission of landlady, he has rendered himself liable to eviction. [Pp. 1110 & 1111] C Mirza Abdul Rashid, Advocate for Appellants. Muhammad Younus, Advocate for Respondent. Date of hearing: 29.1.1996. judgment Appellants who are the legal representatives of deceased landlady Mst. Abida Mustafa are aggrieved by the order dated 8.12.1984 passed by the learned Controller, Karachi (Mr. Gul Muhammad Bhatti) rejecting her prayer for ejectment of the respondent from Bungalow No. 10, Muslimabad Cooperative Housing Society. 2. Respondent is the tenant of the appellant (since dead) in the demised premises since 1959. Rate of rent for the last more than 21 years is Rs. 1,300 per month and is not in dispute. He has been running Grand Fox School in the demised premises since the inception of the tenancy. Eviction of the respondent was sought on the grounds firstly that there was a default in payment of rent for the period from June to September, 1974 and secondly that respondent had committed acts likely to impair utility and value of the building by making additions, alterations and raising construction without prior permission of the appellants as well as KBCA. 3. Ejectment was resisted by the respondent who filed parawise written statement setting that the landlady had been insisting for enhancement of rent which was raised to Rs. 1,350 per month with effect from June, 1974. It was further asserted that the respondent had incurred expenses on repairs of the premises with the consent of the deceased appellant which amount was adjusted towards the arrears of rent. It was for this reason that the appellant had signified her consent by sending rent receipt on 23.5.1974 for a sum of Rs. 9,100 as rent for the months of November 1973 to May 1974 (seven months). It was further pleaded that the appellant lived at Lahore and could not collect the rent every month nor had she appointed any rent collector at Karachi for collection of rent. For this reasons, the rent amount was sent to her periodically after interval of a few months according to her own desire and there was a practice to receive the rent in lumpsum which practice was adhered to in accordance with the wishes of the appellant. 4. On the above pleadings of the parties following issues were struck:- (1) Whether the opponent is wilful defaulter in the payment of rent? (2) Whether the opponent has caused any damage to the premises and has made additions and alterations without the permission of the applicant? (3) What should the order be? 5. In support of her case appellant (since dead examined Dr. Riaz Mustafa, her son and attorney and Sharif Ahmed Warraich, Architect Engineer. On the other hand respondent examined himself in rebuttal. 6. On consideration of the evidence, learned Controller decided both issues against the appellants and dismissed the application giving rise to the instant appeal. 7. From the pleadings of the parties and evidence on record, it transpires that there was an agreement of tenancy dated 17.10.1959 between the parties but for the reasons best known to them none of them has bothered to produce the same in evidence. It further seems that the said agreement was valid for a period of three years and the rate of rent was revised from time to time by mutual consent of the parties. In the absence of the terms and conditions of tenancy before me, I would proceed on the assumption that after the expiry of agreement tenancy continued according to oral understanding between the parties. I would thus be entitled to assume that there was no date fixed for payment of monthly rent 8. Learned counsel for the appellants contended that the rent for the months of June 1974 to October 1974 was remitted through cheque dated 2.10.1974 which fact by itself was sufficient to establish default in payment of rent on the part of the respondent. In the absence of the agreement of tenancy or the date mutually fixed for payment of rent, rent for the month of June would fall due for payment within 60 days after the close of June i.e., on or about 29th August while the rent for month of July would be payable on or about 30th of September. As observed earlier rent was, however, remitted through cheque dated 2.10.1974 for beyond the period permitted by the statute. 9. Case of the respondent, however, is that the deceased landlady living at Lahore having no rent collector at Karachi, there was a practice of collection of rent in lumpsum after the interval of a few months. According to him he used to tender rent as per practice and desire of the landlady by way of cheque in lumpsum which was remitted to her at Lahore and she accepted the cheque sent by him even .after the institution of the rent case. In paragraph 3 of his affidavit-in-evidence, he cited nine instances to show that rent was remitted through cheques from time to time. Of these instances, first five instances pertain to the period prior to June 1974 whereas as observed earlier rent for June 1974 to October 1974 was remitted through cheque dated 2.10.1974. Rent for the month of November 1974 onwards was remitted well within time and this circumstance does not support the plea of the respondent that there was a practice of payment of rent in lumpsum at the desire of the landlady. 10. No doubt, appellant Riaz Mustafa in his evidence admitted that his mother died in 1975 and during her lifetime he used to collect rent and carry out the correspondence on her behalf, he made a grievance that the respondent did not pay rent regularly. He stated that sometimes the respondent used to pay rent every month regularly and sometimes he used to pay it after four or five months and he had been writing and telephoning him for payment of rent regularly. 11. Under the provisions of the Rent Laws, a tenant is under a statutory duty to pay rent to the landlord every month within 15 days of the date fixed for payment of rent and in the absence of any agreement as to date for payment of rent within 60 days of the month when the rent falls due for payment. Mere fact that landlady had been generous enough to accept the accumulated rent for four months at a time would not mean that the respondent was licensed to continue this practice at his own whims nor did it override the statutory provisions of law. This question came up for consideration before the Supreme Court in Abdul Rashid v. Saleh Muhammad 1980 SCMR 506 where Aslam Riaz Hussain, J. speaking for the Bench held as under: - "This plea is based upon a misconception with regard to the legal position on the point. It has been held time and again that in such cases the parties cannot contract themselves out of the provisions of the law on the subject namely the West akistan Urban Rent Restriction Ordinance. Similarly neither party can plead a practice which is contrary to the said law. Moreover, the mere fact that a landlord accepts a delayed payment of rent by the tenant on a number of occasions cannot be said to have given rise to any practice whiting down the requirement of law that the rent has to be paid by the tenant by the 15th of every month." 12. Similar view was expressed in S. Riaz Ali v. Shabbir Ahmed Khan 1971 SCMR 598 laying down that a tenant cannot lead evidence in variation of the terms and conditions of the written agreement of lease, and moreover the receipt of rent by the landlord/respondent for several months at a time, showed that the landlord has condoned the default and not that he had agreed to vary the terms and conditions of the rules regarding payment of rent. 13. In Muhammad Hasan & Co. v. Mahmood Ahmed Khan 1975 SCMR 355 where the tenant had taken up the same position, namely that a practice has grown up to pay rent in lumpsum after certain interval it was observed that "in any event such a practice was contrary to section 13 of the West Pakistan Urban Rent Restriction Ordinance and, therefore, the former ould not over-rule the law." 14. In Civil Petition No. K-16 of 1979 re: Tar Muhammad Jano v. TahirAli and others while dismissing the petition Supreme Court laid down the following dictum:- "The mere fact that a tenant has made it a habit not to pay the rent regularly every month, and that the landlord has tolerated his default for some time and accepted the rent paid at irregular intervals cannot in any way, be deemed to have established a practice of payment of rent whenever the tenant pleases or affect the liability of the tenant to pay the rent unless the landlord comes and collects it. Nor does it absolve the tenant from paying the rent every month. A landlord's acceptance of the rent paid to him at irregular intervals does not in any way, show that he does not expect it to be paid regularly every month, as the reason for receiving the delayed payment might be his decency, his desire to accommodate his tenant, his pre-occupation with his own work, his hesitation to go to Courts of law or his reluctance to incur the expenses and hazards of his litigation, the tenant cannot be allowed to take advantage of his own negligence or of his having of deliberate non­ payment of rent in time every month on the ground that the landlord has been accepting the same and argue that the same had given rise to a practice of irregular payment of rent." 15. Judgment in the case of Abdul Rashid v. Saleh Muhammad was followed in subsequent case of Muhammad Qasim v. Mehrban Ali 1983 SCMR 1205 and identical view was expressed in Mrs. Alima Ahmed v. Amir Ali PLD 1984 SC 32. 16. In the last-mentioned case, High Court had held that though it is a statutory duty of a tenant to pay rent to a landlord in terms of section 13(2)(i) of Ordinance, but if a landlord by his representation/conduct/ omission leads to a tenant to believe that the time mentioned in above provision of Ordinance is not to be adhered to, and thereafter the landlord ishes to enforce above provision strictly, in that event, landlord should first put tenant to notice by serving a notice or otherwise, to the effect that henceforth he should make payment of rent regularly month to month in terms of above provision or in any case ejectment proceedings in such a case should be preceded with service of a notice calling upon tenant to clear arrears of rent within reasonable time specified therein. It was held by the Supreme Court that Court ought to apply and interpret provision of law and not to superimpose a new procedure extraneous to such law. It was further observed that the Ordinance protects tenants against eviction and enhancement of rent, thereby curtailing plenary power of landlord to deal with his property and tenant thereof. Promptness in payment of rent with option to tenant to deposit rent with Rent Controller being condition precedent for enjoying protection, same cannot be relaxed or diluted on grounds of economic well being, fairness or in name of justice. 17. It may be observed from the above dictum that the Supreme Court did not approve of the view taken by the High Court yet Mr. Mirza,earned counsel for the appellants referred to letter dated 26.10.1973 Exh. 1/6 addressed to the respondent taking an exception to the adjustment of s. 950 spent by him at his discretion. By this letter the respondent was reminded that according to the agreement he had to pay monthly rent in advance by 7th of each month while he was not remitting the same in time in spite of repeated demands. Be that as it may, from the evidence on record coupled with the admission of the respondent that the disputed premises were let out to him on monthly rental basis and that the rent was payable in advance. I am of the considered view that there was a wilful and deliberat default on the part of the respondent in remitting the rent at least for the months of June and July, 1974. Learned Controller by taking a compassio­ nate view to the contraiy acted illegally which cannot be sustained at law. 19. As to the impairment of utility of the rented premises, there is categorical admission by the respondent himself that he had raised construction on the upper floor though temporary. According to him he had constructed 3 or 4 rooms without any permission (of the appellants) either in writing or oral of the landlord. He added that it being temporary he did not feel it necessary to have permission. I am of the view that by making additions alterations in the house and raising construction in the building without the permission of the deceased landlady he has rendered himself liable to eviction. I am further fortified by yet another admission of the respondent that outer, rooms are built of cement blocks in two rooms whereas remaining two rooms were made of tin plates. Besides there is unrebutted and unchallenged evidence of Architect Sharif Ahmed before the Controller which tends to show that the respondent had raised construction of rooms with C.B. Wall and sheet roof in the open compulsory space and on the top of roof the construction was in progress. This witness further stated that the said construction was unauthorised and he had inspected the site at the instance of the appellants in pursuance of notice dated 3.9.1979 issued by Assistant Controller of Buildings Master Plan Department an Authority constituted under the Sindh Building Control Ordinance. A copy of the notice Exh. 2/1 is also on record which materially and substantially supports the case of the appellants. Needless to point out neither the Architect was cross-examined nor was the authenticity of the notice disputed before the Controller. This circumstance alongwith the clear and can did admission by the respondent is enough to conclude that the latter made admissions and alternations to the property and raised constructions unauthorisedly and without the permission of the appellant. I would thus conclude that the learned Controller acted illegally in brushing aside this piece of evidence and dismissed the eviction application wrongly which cannot be upheld. 20. For the aforesaid facts and reasons, I allow this appeal with costs and set aside the impugned order. Respondents are allowed six months' time subject, however, to deposit of rent, to vacate the premises and make alternate arrangements. (M.Y.F.K.) Appeal allowed.

PLJ 1996 Karachi 1111 PLJ 1996 Karachi 1111 Present: salahuddin mirza, J. MUHAMMAD IRFAN AZAD--Applicant versus MUHAMMAD YOUSUF QURESHI-Respondent Civil Revision Application No. 194 of 1989, decided on 10th December, 1994. Civil Procedure Code, 1908 (V of 1908)-- —S. 115—Suit for declaration and injunction-Decreed due to statement of applicant's Counsel that he had no instructions-Objections against execution of decree rejected-Challenge to-Applicant/defendant chose not to file any appeal against judgment of trial court—Objections filed by him are same which were taken in written statement and were considered in judgment-Applicant has incorrectly relied upon provisions of Evacuee Trust Properties Act, 1975 as respondent/plaintiff was not proceeding against evacuee trust property-He was proceeding against applicant and was entitled to seek a declaration that he, being in possession had a right to continue to remain in peaceful possession-­ Held: It is an established principle of law that an executing Court cannot go behind the judgment, and decree sought to be executed-Revision application dismissed. [Pp. 1114 & 1115] A & B 1969 SCMR 275, 1972 SCMR 237 ref. Haji Amir Ahmad Khan, Advocate for Applicant. S.D. Rana, Advocate for Resp9ndent. Date of hearing: 9.12.1990. judgment _j; Suit No. 1160 of 1982 (now No. 2980 of 1986) was decided by judgment dated 26.5.1987. Earlier to that, Mr. Haji Amir Ahmed Khan Advocate, learned counsel for the defendant, had filed a statement in the Court on 14.1.1987 pleading no instructions to contest the suit The plaintiff Muhammad Yousuf Qureshi (now espondent in those proceedings) had already losed his evidence on 29.7.1986 and in view of this statement of 14th January, 1987, evidence of defendant (applicant in the present roceeding) had also been closed and the matter was adjourned for arguments and thereafter the suit was decreed vide judgment dated 26.5.1987. The decree was prepared on 29.7.1987 and thereafter the respondent/decree-holder filed Execution Application No. 1 of 1988. In this execution application, the applicant/judgment-debtor filed objections on 10.3.1988 and he again filed objections on 14.5.1988. These latter objections were in respect of application under section 151, C.P.C. dated 27.1.1988 moved by the decree-holder. All these objections were disposed of, by the earned Executing Court vide order dated 29.5.1988 and were rejected and it was held that the defendant/judgment-debtor (the present applicant) had not preferred any appeal against the judgment and decree and the objections could not be reconsidered (since they were same which had been earlier taken in the written-statement) and that the judgment and decree ha attained finality and further that the Executing Court could not go behind the decree against which no appeal or revision had been filed or even review sought and, as a consequence of the dismissal of the objections, writ of possession was ordered to be issued and the defendant/J.D. was further directed to be imprisoned for three months for violating injunction order. The defendant/J.D. then filed an appeal against the order, dated 29.5.1988 (Civil Appeal No. 82/88 of the Court of Ilnd Additional District and Sessions Judge, Karachi (South). Learned Ilnd Additional District and Sessions Judge, Karachi (South) dismissed this appeal vide judgment dated 16.8.1989. The defendant/J.D. through this revision application challenges both of hem (the order, dated 29.5.1988 passed by the Executing Court and the judgment dated 16.8.1989 passed in appeal by the Hnd Additional District and Sessions Judge, Karachi (South). Learned counsel of the parties have been heard. 2. Learned counsel for the applicant referred to para. 3 of the plaint in which it was stated that the plot in question was evacuee trust property which was under the control of Custodian of the Evacuee Trust Board and then he referred to section 9 of Evacuee Trust Properties (Management and Disposal) Act, 1975, which provides that no evacuee trust property shall be liable to be proceeded against for any claim in any manner whatsoever in execution of any decree or order or by any other process of Court or other authority. Learned counsel also referred to section 14 which provides Bar of Jurisdiction, section 21 which defines the power of the Chairman of the Evacuee Trust Property Board while acting as a Civil Court, section 22 which provides for penalty for concealment of Evacuee Trust Properties and to section 25 which provides for the ejectment of an authorised person, at the instance of the Chairman or Administrator, a Deputy Administrator or an Assistant Administrator, whose possession or occupation is not authorised under any of the provisions of this Act or who contravened or may have contravened any of the terms and conditions under which the property is held by him or who has failed to pay public dues or has wilfully caused damage to any such property. It was then, argued by the learned counsel that in view of these provisions of law the suit itself was incompetent and should have been dismissed. Learned counsel then referred to the judgment reported in PLD 1952 Lah. 77 Hatim v. Shah Din in which it is held that the penalties involved under Rule 2(3) of Order XXXK, C.P.C. are of a criminal nature and notwithstanding that no precise procedure had been laid down in that regard, it was expected that any Court which found itself called upon to impose these penalties should proceed as nearly as possible in the same manner as a Criminal Court would proceed. It was further explained that in this view of the matter it was incumbent upon the Court to put the person at fault on his guard by framing a question or as an issue which should embody all the elements of a charge under the criminal jurisdiction and thereafter it should be put to such person and no order of imprisonment or attachment could be passed unless such person is provided opportunity to show cause against such punishment. He then inferred to the judgment in cases reported as PLD 1961 SC 192, Islamic Republic of Pakistan v. Muhammad Saeed and PLD 1968 Kar. 758, Muhammad LatifKhan v. Mst. Nayab Begum. In PLD 1961 SC 192 it was held that question relating to the executability or order or decree can be raised even in execution proceedings and it is open to the party against whom an order or decree is sought to be executed to show that it is null and void or had been made without jurisdiction or that it was incapable of execution. In the abovementioned Karachi judgment it was observed that objection as to the executability of a decree can be raised before the Executing Court. Learned counsel of the respondent, on the other hand, argued that the property in dispute was hidden Evacuee Property and Deputy Settlement Commissioner was examined as P.W. to clarify the status of the property in dispute and it was further stated by him that the plaintiff/respondent was only claiming possession of the disputed property and he had not raised any question of title in respect thereto. Learned counsel then referred to the evidence of P.W. 2 Imran who is step-brother of the applicant who testified to the existence of an agreement between the parties although he could not give any details of the said agreement. It was further pointed out that an issue as to whether, under the circumstances of the case, the applicant/J.D., should be arrested or not was framed and evidence was led in respect thereof and thus the impugned order and judgment were both not hit by the observations made by the Court in the judgment reported as PLD 1952 Lah. 77 and that if the applicant/defendant opted not to lead any evidence, it was his outlook and such failure of applicant/defendant could not come into the .way of the property of the two impugned decisions. He relied on the judgment in the case of Muhammad Saleem Khan YousufZai v. K. Mohiuddin 1968 SCMR 557 in which it is held that when the Court, with the consent of the parties, orders maintenance of status quo in respect of the suit property and yet the defendant in violation of the undertaking given to the Court parts with the possession and rents out the property to a third party, then the Court is competent under Order 39, rule 2(3) to order the detention of the defendant in Civil Jail for deliberate contravention of the undertaking. 3. I have taken into account the facts of the case and the law upon which learned counsel of the parties have relied. I am of the considered view that judgment dated 26.5.1987 in Suit No. 1160/82 (now No. 2980/85) was fully contested judgment. It was the old prerogative of the applicant/ defendant to lead or not to lead evidence in the suit and he elected not to lead any evidence. The statement dated 14.1.1987 of his learned counsel (which is available at page 117 of the R & P) leaves no room to doubt this petition. This judgment was, therefore, a valid judgment based upon evidence. It was open to the applicant/defendant to challenge this judgment before the Appellate Court but, again, applicant/defendant chose not to file any appeal against it with the result that this judgment became final. The applicant/defendant has not disclosed any new fact in his objections in the execution application. These objections are the same which were taken by him in the written statement and which has been considered in the judgment dated 26.6.1987.1 am also of the view that learned counsel for the applicant has incorrectly relied upon the provisions of Evacuee Trust Properties (Management and Disposal) Act, 1975. Section 9 example Evacuee Trust Properties from the process of any Court and provides that such property is not liable to be proceeded against for any claim in execution of a decree or order of any Court. However, the respondent/plaintiff was not proceeding against evacuee trust property. He was proceeding against the applicant and he was entitled to seek a declaration that he, being in possession of the disputed property, had a right to continue to remain in peaceful possession thereof and the applicant/defendant was not entitled to ccupy it illegally. It was a simple suit for declaration and injunction and was not hit by any of the provisions of Evacuee Trust Properties (Management and Disposal), Act, 1975. If the applicant, defendant fell aggrieved from the judgment of the learned Trial Court, it was open to him to challenge the same by way of appeal. Having failed to challenge the same at the appropriate time, he kept on sleeping over the matter until the filing of the execution application when he came forward with objections which, in effect, are the reproduction of his written statement. The learned Executing Court and the learned Appellate Court, therefore, rightly dismissed the same. It is an established principle of law that an Executing Court cannot go behind the judgment and decree sought to be executed. Two judgments out of a list of many in support of his view are 1969 SCMR 275 Kazi Abdul Kadir v. East Pakistan Provincial Cooperative Bank and 1972 SCMR 237, Syed Riaz Ahmad Shah v. Dayal Singh College Trust Society. It is an admitted position that the respondent was in possession of the disputed premises and an order of status quo with respect to the possession was enforced when the applicant/defendant violated the said order and forcibly obtained possession of the disputed property. An issue in this respect having been framed by the Court the applicant/defendant was put on his guard to pale his defence before the Court and I agree with learned counsel for the respondent that, under the circumstances, the judgment dated 26.5.1982 does not violate the law laid down in PLD 1952 Lah. 77. Reliance placed by the learned counsel for the applicant on the other judgments mentioned above is also misplaced. I would, therefore, uphold the order, dated 29.5.1988 and the judgment dated 16.8.1989 passed by learned Ilnd Additional District and Sessions Judge, Karachi (South) in Civil Appeal No. 82/88 upholding the order dated 29.5.1988. This revision application is accordingly dismissed, leaving the parties to bear their own costs. (M.Y.F.K.) Revision dismissed.

PL J 1996 Karachi 1115 PL J 1996 Karachi 1115 Present: ABDUL HAMEED DOGAR, J. Mst. KIRAN SABAH-Petitioner versus IIND ADDITIONAL DISTRICT JUDGE and another-Respondents Constitutional Petition No. S-1076 of 1995, decided on 1st February, 1996. West Pakistan Family Courts Act, 1964 (XXXV of 1964)-- —S. 5-Constitution of Pakistan, Art. 199--Dissolution of marriage on ground of Khula-It is well settled that if conscience of Court is satisfied that it will not be possible for the spouses to live together as a faithful union within limits prescribed by God, they should be separated on ground of tf/iu/a--Petitioner has proved her aversion in plaint and evidence that she has developed hatred and disliking her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower and other benefits-Petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life-Held: Islam prefers divorce to adultery and if a wife intends to get a divorce on ground of Khula, she may obtain a decree of dissolution by giving up her dower-Petition accepted. [P. 1119] A Abdul Qadir Shaikh, Advocate for Appellant. Respondents Nos. 1 and 2 (absent). Parya Ram Waswani, Advocate for Respondent No. 3. Date of hearing: n 1.1996. judgment Through this petition petitioner invokes extraordinary jurisdiction of this Court seeking declaration that the judgment and decree dated 16.1.1995 and 20.9.1995 passed by the learned Joint Civil Judge and Family Judge, Sukkur and learned Second Additional District Judge, Sukkur respectively are illegal and without lawful authority and that dissolution of marriage on the ground of Khula be ordered. The facts constituting this petition are that petitioner Mst. Kiran Sabah married respondent Mushtaq Ahmed on 15.11.1993 at Sukkur and Rs. 1,00,000 was settled as dower payable on demand, which has not been paid to the petitioner. Certain conditions were mentioned in the Iqrarnama written by the respondent at the time of Nikah that nothing has been paid in lieu of hand of the petitioner and that the golden ornaments of 8 tolas may be given which shall be the property of the petitioner. Petitioner's parents gave Rs. 50,000 consisting golden ornaments weighing 5 tolas, 25 pairs of clothes and other articles. Petitioner had hardly lived for a period of about one week with respondent Mushtaq Ahmed at Mirpur Mathelo when she came to know that her husband was a man of bad character, supplier of women and he used to supply his sisters to various persons and so many strangers used to visit his house. According to her she was also compelled by respondent No. 3 to lead immoral life and on her refusal she was being maltreated and her life was made miserable. According to petitioner's case on 20th January, 1994 her husband brought strangers in the house and compelled the petitioner to allow one of the strangers to have sexual intercourse with her. On such refusal he gave severe beating to her and thereafter took her and left her at the house of her father's sister at Mirpur Mathelo. Thereafter, the petitioner came to the house of her parents at Sukkur and filed suit for dissolution of marriage on the ground of Khula in February, 1994. Respondent No. 3 Mushtaq Ahmed denied petitioner's allegations in his statement filed before the Family Court. He stated therein that petitioner's father Nizamuddin had accepted an amount of Rs. 50,000 from him out of which he gave two tolas of gold ornaments and 5 pairs of clothes to the petitioner in marriage and misappropriated the remaining amount and that dowery articles were also taken away by petitioner alongwith her parents and one Ghulam Kadir at the time she left the house in his absence. Respondent pleaded that he is a technical man having Diploma of Associate Engineer in Electrical Technology and is serving as Sub-Engineer at Gudu Thermal Power Station, Kashmore and is drawing pay of Rs. 5,200 and is a respectable person of the locality. According to him petitioner had also taken away 8-1/2 tolas of golden ornaments, ten pairs of clothes and Rs. 40,000 in cash while leaving the house in his absence. In further pleas respondent claimed to reserve right to initiate civil and criminal proceedings against petitioner, her father and her mother and so-called uncle Ghulam Kadir for the recovery of the articles and cash Rs. 40,000. The respondent also asserted his right to recover Rs. 50,000 from petitioner's father taken from him at the time of marriage. On the pleadings of the parties trial Court framed 8 issues, including Issue No. 6 on the point of Khula. The petitioner examined herself and her father Nizamuddin while respondent examined himself, Khan Muhammad and Barkat All before the Family Court. The trial Court after discussing the evidence in detail dismissed the suit of petitioner opining that she had miserably failed to prove her case and is not entitled to Khula. Appellate Court too dismissed the petitioner's appeal and confirmed the findings of the lower Court. Mr. Shaikh Abdul Kadir counsel for the petitioner and Mr. Parya Ram Waswani for respondent No. 3 advanced their arguments at length before me. Petitioner's counsel contended that both Courts below have not appreciated properly the evidence led by the petitioner and that the judgments are based on non-appreciation and misreading of the evidence which has resulted in miscarriage of justice. According to the petitioner's counsel she had developed hatred against the respondent and it is impossible for her to live within the limits of God. The counsel states that the petitioner had clearly stated in her plaint and the statement that the respondent is a man of bad character and is a pimp, supplier of women and also used to supply his sisters to various persons and so many strangers used to visit his house. It is mentioned by her that her husband used to compel her to lead immoral life and on her refusal he used to maltreat her and on 20.1.1994 he brought strangers in his house and compelled her to have sexual intercourse with one of the strangers. Her counsel pointed out that she has stated all these things specifically in her deposition and this piece of evidence has gone unchallenged. She plainly refused to go back to the defendant and further urged that the petitioner and her father have categorically deposed that petitioner was expelled by respondent and was left at the house of her father's sister at Mirpur Mathelo from where she came to the house of her parents at Sukkur. Her father also supported the version of the petitioner before Family Court stating that the petitioner had told him about the respondent's character and his being pimp. Mr. Shaikh submitted that the respondent has failed to advance any evidence in rebuttal to the version of petitioner and has miserably failed to prove that any dowery articles including cash of Rs. 40,000 were taken away by petitioner, her father and uncle Ghulam Kadir. According to the counsel the conciliation between the spouses failed at pre-trial as well as post-trial stage before the Family Court and also before the Appellate Court when on 20.9.1995 Additional District Judge called the petitioner and tried to bring conciliation in-between the parties but the petitioner refused to join the company of respondent No. 3 at any cost. The right to ask for Khula by a woman has been ordained in the Holy Quran and man and woman have been kept at equal footing in respect of divorce against each other. Petitioner's counsel, therefore, lastly urged that since the serious allegations in the form of evidence have been put forth by petitioner and her father against respondent which have created hatred in petitioner's mind against respondent and it will not be possible for them to live together within the limits of God. So, petitioner's claim for dissolving her marriage on Khula is proved. In support of his submissions petitioner's counsel has referred to the following cases:- i) Muhammad Aslam v. Mst. Razia Sultana PLD 1959 Lah. 287. (ii) Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169. (iii) Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082. (iv) Mst. Nasreen Bibi v. Atta Muhammad PLD 1994 Lah. 276. (v) Muhammad Anwar v. Nusrat Bibi NLR1994 Civil 615. Mr. Parya Ram counsel for respondent Mushtaq Ahmed assailed the evidence of petitioner and her father Nizamuddin stating that petitioner has failed to prove her case on the ground including that ofKhula, so the Courts below have rightly appreciated the evidence in refusing to dissolve marriage. He contended that the petitioner is not entitled to claim Khula as a matter of right without satisfying the Court that the relations between the spouses were so strained that they could not live within the limits prescribed by God. Here the Courts below, on the evidence before them, are satisfied that she has failed to prove intense dislike or fixed aversion to live within the limits prescribed by Allah. In support he cited Aali v. Additional District Judge-I, Quetta and another 1986 CLC 27 and requested to dismiss the petition. The contention of the learned counsel for petitioner is well-founded. It is well-settled that if on the basis of material on the record for circumstances prevailing in the case the conscience of Court is satisfied that it will not be possible for the spouses to live together as a faithful union within the limits prescribed by God, they should be separated on the ground ofKhula. In the present case petitioner has proved her aversion raised in the plaint that respondent (her husband) is man of bad character, supplier of women and used to supply his unmarried sisters to the strangers and that he compelled her to lead an immoral life, and on 20.1.1994 she was compelled by him to have sexual intercourse with one of the strangers and on refusal she was given severe beating and then she was left at the house of her father's sister at Mirpur Mathelo. Not only this but she categorically stated in her evidence that she has developed hatred and dislike in her heart against respondent and it is impossible for her to live with him as wife within limits prescribed by God and she is prepared to relinquish dower amount of Rs. 1,00,000 and other benefits. Respondent Mushtaq Ahmed has failed to shatter this piece of evidence though the petitioner has been sufficiently cross-examinedby respondent's counsel. P.W. Nizamuddin petitioner's father has confirmed that respondent used to bring strangers in his house and compelled petitioner to lead immoral life and on her refusal she was left at his sister's house at Mirpur Mathelo. The Court will have to consider their evidence whether the rift between the parties is of such a serious nature that the spouses will not observe the limits of God if allowed to remain together and on such a positive conclusion, it is left with no discretion but to grant dissolution of marriage. Islam prefers divorce to adultery and if a wife owing to her aversion, hatred and dislike with the husband intends to get a divorce, she may obtain a decree of dissolution by giving up her dower and other benefits and such a decree is called Khula. In the present case it is admitted at the trial by the parties that the dower was fixed at Rs. 1,00,000 which was not paid to the petitioner as yet. Moreover, nothing more has been proved regarding the other benefits being obtained by petitioner from marriage. In the present case the parties, though educated, could not pull on together amicably right from the beginning. They separated within one month of their marriage and since then they are living separately for more than one year and could not reconcile. The petitioner's statement that her husband is a pimp and compelled her to lead immoral life supported by her father is not an ordinary thing to be ignored which has been discarded by the two Courts below without valid reasons. This sort of maligning is sufficient to come to a conclusion that petitioner has developed a fixed aversion of hatred and dislike in her heart against her husband and is sufficient reason to attract the conscience of the Court to conclude that the reunion will not be faithful. In case of Muhammad Aslam v. Mst. Razia Sultana and others PLD 1995 Lah. 2987 it has been held that even if wife omits to demand Khula, can be granted decree for Khula if the conditions exist that in a case a decree for dissolution of marriage is not granted it will give birth to a hateful union and the parties will not observe the limits prescribed by God. In case of Dr. Akhlaq Ahmed v. Mst. Kishwar Sultana and others PLD 1983 SC 169 Supreme Court has held the Court is entitled to form the opinion as regards Khula after taking into consideration all the factors including how the parties had conducted themselves during the trial of the suit. In case of Ghulam Mustafa v. Judge, Family Court and another 1991 CLC 2082 marriage has been dissolved on the ground of Khula where on the basis of material and circumstances in case conscience of Court was satisfied that it would not be possible for the parties to live together as husband and wife within the limits prescribed by Allah. In case Mst. Nasreen Bibi v. Atta Muhammad PLD 1994 Lah. 276 Khula has been allowed and it is observed that wife is not supposed to give a logical, objective and sufficient reason for claiming Khula. Wife would be entitled to Khula in case fixed aversion is proved. In this authority cases of Mst. Bilqis Fatima v. Nqjam-ul-Ikram Qureshi PLD 1959 Lah. 566, Muhammad Akram v. Mst. Yasmin and another 1983 CLC 3098 and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 are discussed and relied upon. Same view has been held in the case of Muhammad Anwar v. NusratBibi NLR1994 Civil 615. The judgment relied upon by learned counsel for respondent Mushtaq Ahmed proceeded on distinct facts and grounds. The facts of cited case (Aali v. Additional District Judge-I, Quetta and another, 1986 CLC 27) are that although Nikah was performed but Rukhsati had not taken place and spouses had never lived as husband and wife. For the foregoing discussion this writ petition is allowed. The mpugned judgments and decrees of the Courts below are declared to be null and void and without lawful authority and of ho legal effect and the petitioner's suit for dissolution of marriage on the ground of Khula is decreed. Since the petitioner has relinquished the right of dower which is admittedly not paid to her and the other benefits being not proved, the question of return of benefits to the respondent does not arise. Parties are left to bear their own costs. (M.Y.F.K.) Petition accepted.

PLJ 1996 Karachi 1121 [DB] PLJ 1996 Karachi 1121 [DB] Present: AGHA SAIF-UD-DIN KHAN AND AGHA RAFIQUE AHMED KHAN, JJ SOBHO GLANCHANDANI--Petitioner versus FEDERATION OF PAKISTAN and 8 others-Respondents Constitutional Petitions Nos. D-567 of 1994 (Sukkur) and D-78 of 1994 (Larkana), decided on 16th April, 1996. Constitution of Pakistan, 1973- —Art. 4, and 199-Petitioner a senior practicing Advocate applied for issuance of Passport-Refusal of~Challenge to~No reason, for non issuance of Passport were given by respondents-Citizen's right to travel abroad is an important aspect of his liberty etc.. and affected person has to be given opportunity of hearing-Held : Discretion vested in a public authority must be exercised fairly, reasonably and in good faith-Refusal by the respondents to issue passport to petitioner is without lawful authority and of no legal effect-Petition allowed. [Pp. 1123 & 1124] A PLD 1987 SC 504, PLD 1981 Kar. 98 ref. Petitioner in person. Habibullah Shaikh, Dy. A.-G. for Respondents. Date of hearing: 26th March, 1996. judgment Agha Saif-ud-Din Khan, J.--This Constitutional Petition is directed against the refusal by the Deputy Director (H. Directorate-General of Immigration and Passport), Islamabad, respondent No. 2 herein, to issue a passport to the petitioner and to allow the petitioner to proceed abroad. 2. The petitioner is admittedly a born citizen of Pakistan, Senior Practicing Advocate and a small Zimindar of District Larkana, and petitioner has remained Professor of Law College, Larkana for 15 years and contested twice for National Assembly Seat in 1988 and 1989. 3. The petitioner has never been abroad, but for the first time he applied for the issuance of passport in years 1991, 1992, 1993 and 1994, but respondents were alleged to have avoided on one or the other pretext and have refused for the issuance of passport without affording any opportunity of hearing and without assigning any reason whatsoever. The petitioner has appended letter from respondent No. 4 informing him that his request for grant of passport facilities cannot be acceded to, dated llth March, 1992 as N ~ (Annexure D). The petitioner has also appended a memorandum from respondent No. 3 that his case is under consideration. As and when decision in the matter is arrived at he will be informed accordingly as (Annexure E). 4. Parawise comments was only filed by respondent 2 that as petitioner is involved in undesirable activities which seem to be security risk to the country, therefore, it is not possible for the competent authority to extend passport facilities to the petitioner. The respondents Nos. 3 and 4 have adopted the comments filed by the respondent No. 2. 5. That the petitioner in his affidavit-in-rejoinder has said that allegations by the respondents are preposterous and lack details, with regard to the date, time and period of alleged activities that averments by the respondents are vague and meaningless. Petitioner has contended in his affidavit-in-rejoinder that the right to travel, move and associate is a valuable fundamental right guaranteed by the Constitution of Pakistan and cannot be denied to a citizen on imaginary grounds. 6. It is one of the arguments advanced by the petitioner that no material has been placed before the Court by the respondents justifying the order refusing to issue the passport to him. 7. The petitioner has also contended that he was a member of Communist Party of India before partition of 1947 and his organization had supported the Muslim League's movement for the creation of Pakistan. Learned petitioner has also submitted that the acts and orders of the respondents are discriminatory, inconsistent, against the principles of natural justice and contrary to Articles 4, 25, 27 and such other Articles of the Constitution of Islamic Republic of Pakistan, 1973. Petitioner has also cited cases-law, Government of Pakistan v. Dada Amir Hyder Khan, PLD 1987 Supreme Court 504, and MumtazAli Bhutto v. Government of Pakistan and 3 others PLD 1981 Kar. 98. The petitioner has, therefore, prayed for declaration as under :-- (a) To declare that the petitioner has got right to get Pakistan Passport and that the orders and letters issued by the respondents refusing to grant Pakistani Passport to the petitioner dated 11-3-1992 and all such other letters including 16-5-1994 are mala fide, illegal and without lawful authority. (b) To direct the respondents to issue Pakistani Passport to the petitioner granting him full liberty of exit and entry from and to Pakistan through a writ of Mandamus. 8. Mr. Habibullah Shaikh learned Deputy Attorney-General of akistan for the respondents has conceded that the petitioner is very Senior Advocate, respectable person, petty Khatedar and not previous convict. He has also frankly admitted that in parawise comments by respondent No. 2 no details with regard to date, time and period of alleged undesirable activities of the petitioner are mentioned. 9. We have heard petitioner in person and learned Deputy Attorney- General of Pakistan and perused the record. 10. According to the petitioner it was nowhere provided that the Federal Government has a discretion to issue or to refuse to issue a passport when applied for. He also referred to Article 4 of the Constitution of 1973 which provides :-- "4.-(D To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan . (2) In particular :- (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law; (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and (c) no person shall be compelled to do that which the law does not require him to do. 11. The main point which arises, in the circumstances of this case, really is whether while refusing to issue the passport to the petitioners, the discretion vested in the authorities to issue or refuse to issue a passport was properly exercised? It is now established law that a discretion vested in a public authority must be exercised fairly, reasonably and in good faith. 12. In the present case, no reasons whatever were given by respondent No. 2 to indicate why the petitioner could not be issued a passport. Such an order is not proper order as without disclosing the reasons hy the discretion had been exercised against the petitioner. It is not possible to say whether the discretion exercised has been exercised properly or arbitrarily. 13. Moreover, a citizen's right to travel abroad is an important aspect of the citizen's liberty and is closely related to the rights of free speech and association. 14. In view of what we have stated, we feel that before a person is inally refused the grant of a passport on certain grounds based on materials in the possession of the relevant authorities, the affected person has to be given opportunity of hearing. But in the instant case, petitioner was refused for the issuance of passport without assigning any reason or affording any opportunity of hearing. 15. We are inclined to agree with the enunciation of the law made in the above two citations. 16. For the foregoing reasons, we hold that the refusal by the respondents to issue passport to the petitioner is without lawful authority and of no legal affect and accordingly the petition is allowed, with no order as to costs. (MYFK) Petition allowed.

PLJ 1996 Karachi 1124 PLJ 1996 Karachi 1124 Present: rana bhagwan das, J ABAW HUSSAIN-Appellant versus Mst. QAMARUN NISA-Hespondent First Rent Appeal No. 355 of 1988, decided on 7th December, 1995. Sindh Rented Premises Ordinance (XVII of 1979)-- —S. 21-Ejectment petition on ground of personal bonafide need acceptance of--Appeal to-After two years of filing appeal tenant moved application for new evidence—New evidence has not been rebutted as respondent could not shake veracity of witnesses-It is true that rights and liabilities of parties must be determined as existing on the day of filing a cause but at the same time subsequent events taking place after institution of a cause must be taken into consideration in order to avoid multiplicity of litigation and to secure ends of justice-Held : In the light of fresh evidence on record, shop in question is no more needed by respondent for bonafide use and occupation of her sons in good faith and it is for this reason that she has taken no interest in defending this appeal-Appeal accepted. [Pp. 1125 & 1126] A & B Mr. Muhammad Ilyas Khan, Advocate for Appellant. Mr. M.A. Lakhani, Advocate for Respondent. Dates of hearing: 1st and 8th November, 1995. judgment This appeal under section 21 of the Sind Rented Premises Ordinance (hereinafter referred as the Ordinance) is directed against the judgment, dated 14-3-1988 passed by learned Controller, Karachi - East directing ejectment of the appellant from the shop premises on the ground ofbona fide use and occupation for two sons of the respondent/landlady. 2. Relationship of landlord and tenant between the parties is not in dispute. Tenancy commenced in the year 1955-56 during lifetime to the husband of the respondent. Latest rate of rent is Rs. 300 per month. Ejectment of the appellant was sought on the ground of bona fide requirement of the premises for the use of two sons of the respondent. 3. Appellant resisted his eviction on the averments that the need of the respondent was not bona fide as her sons were well set. According to him, ejectment was sought with mala fide intentions and ulterior motives in order to realise Pugree from the new tenants. 4. Both the parties adduced evi3ence. On consideration of the evidence, learned Controller directed eviction of the appellant vide judgment, dated 14-3-1988 which has been impugned in this appeal. 5. After about two years of presentation of the appeal appellant moved an application under section 21 (3) of the Ordinance for permission to adduce evidence to show that Messrs Shahid Aslam and Rashid Aslam, sons of the respondent for whom the landlady wanted the demised shop were not running any business. While Rashid Aslam had left for Saudi Arabia, Shahid Aslam had joined Karachi Electric Supply Corporation. By consent of the respondent's counsel this application was granted vide order, dated 11-2- 1990 directing the additional evidence to be adduced by way of affidavits and cross-examination before Mr. Laiq Ahmed Jafferi, Advocate appointed as Commissioner for the purpose. Consequently appellant Abaw Hussain filed his own affidavit-in-evidence and that of Haji Iqbal a tenant in the adjoining hop. Both the witnesses were cross-examined before the Commissioner who returned the evidence to this Court. 6. At the hearing, Mr. Muhammad Eyas Khan, learned counsel for the appellant contended with reference to the additional evidence on record that from the evidence so brought on record both the sons of the appellant no more required the shop in question for their use and occupation in good faith. He has taken me through the evidence on the record to indicate that Rashid Aslam has left for Saudi Arabia whereas Shahid Aslam has taken an assignment with K.E.S.C. as Meter Reader. Besides Shop No. E/2 of the respondent is closed for the last about one year. New evidence brought on record with the leave of this Court has not been rebutted as the respondent could not shake the veracity of the witnesses before the Commissioner for recording evidence. There is no other evidence in rebuttal to conclude that the witnesses had deposed falsely. On the date fixed for hearing Mr. M.A. Lakhani did not turn up to advance the arguments when the judgment was reserved and a notice was issued to him to appear on 8-11-1995. He remained absent without any intimation but in the late hours of the day he appeared and pleaded no instructions. 7. It is true that rights and liabilities of the parties must be determined as existing on the day of filing a cause but at the same time subsequent events taking place after the institution of a cause must be taken into consideration in order to avoid multiplicity of litigation and to secure the ends of justice. In the light of fresh evidence on record, I am convinced that the shop in question is no more needed by the respondent for bona fide use and occupation of her sons in good faith. In fact she would not require the shop any longer in view of the changed circumstances and it is for this reason that she has taken no interest in defending this appeal. In this view of the matter, it would only be just, fair and appropriate to accept this appeal and set aside the eviction order. I order accordingly. Impugned judgment is set aside and the ejectment application dismissed with no order as to costs. (MYFK) Appeal accepted.

PLJ 1996 Karachi 1126 PLJ 1996 Karachi 1126 Present: HAMID ALI MlRZA, J. Dr. WASIF AHMED JALALI-Appellant versus Mst. GHAZALA IQBAL-Respondent First Rent Appeal No. 589 of 1994, decided on 10th January, 1996. (i) Sindh Rented Premises Ordinance (XVII of 1979)-- —S. 21-Ejectment application-Acceptance of~Appeal to-Advance payment of rent-Terms in respect of advance payment of rent are not repugnant to Rent Laws would be operative and appellant would be bound to pay rent in advance of each calendar month. [P. 1131] A PLD 1988 SC 190, PLD 1988 SC 228 ref. (ii) Sindh Rented Premises Ordinance (XVII of 1979)-- -—S. 21-Whether acceptance of cheque by landlady in respect of rent amounted to waiver of default-Question of~There is no evidence from appellant's side that respondent waived his right to file ejectment application-Soon after the acceptance of cheques in respect of rent, respondent filed eviction application, therefore, there could not be waiver on the part of respondent in favour of appellant so far his right to file eviction application under the law. [P. 1134] B (iii) Sindh Rented Premises Ordinance (XVII of 1979)-- —S. 21-Default in payment of rent-Adjustment from amount of advance- There was no advance and balance of amount of Rs. 81,000 was refunded to appellant and the appellant was to pay rent of Rs. 11,000 per month in advance, therefore, in any advance even if still remained with respondent, the same could not be adjusted towards payment of rent for the months of Dec. 1992 and Jan. 1993. [P. 1136] C (iv) Sindh Rented Premises Ordinance (XVII of 1979)- —S. 21-Ejectment applications-Bonafide personal need-Ground of—A landlord should give all details in respect of business which he could start in the premises for which eviction has been sought-If the landlady proves her need to be based on good faith and her testimony is not shaken in cross-examination and no satisfactory rebutting evidence is adduced to the said testimony then it would be deemed that requirement is good faith has been proved-Held : Respondent landlady has proved her requirement in good faith and there was sufficient evidence on record which could not be rebutted by appellant/tenant-Appeal dismissed. [Pp. 1140 & 1141] D Mr. K.B. Bhutto, Advocate for Appellant. Mr. Hamza Ali, Advocate for Respondent. Dates of hearing: 16th and 17th August, 1995. judgment This is an appeal under section 21 of the Sindh Rented Premises Ordinance, 1979 (hereinafter called Rent Ordinance) directed against an order, dated 5-9-1994 passed by learned Illrd Senior Civil Judge and Rent Controller, Karachi-East, in Rent Case No. 60 of 1993, Mrs. Ghazala Iqbal v. Wasif Ahmad Jalali, whereby ejectment application filed by the respondent was allowed and the appellant was ordered to hand over vacant possession of the premises within a period of 60 days, hence this appeal. Brief facts of the case are that the respondent/landlady filed Rent Case No. 60 of 1993 for ejectment of appellant/tenant from premises first and second floor of Property No. 126, Darakhshan Society, Malir, Karachi, on the ground of non-payment of rent for the months of December, 1992 and January, 1993 as well as non-payment of water charges, (ii) impairing the value and utility of the premises and (iii) on personal requirement of the respondent/landlady. The appellant/tenant filed written statement stating therein that he has paid rent at the enhanced rate of Rs. 11,000 per month for the months of December, 1992 to January, 1993 by cheques to the respondent/landlady but the cheque for the sum of Rs. 11,000 being rent for the month of January, 1993 was dishonoured due to some circumstances therefore, rent for the month of January, 1993 was deposited by the appellant/tenant in Miscellaneous Rent Case No. 89 of 1993 on 14-2-1992 on account of respondent's mala fide motive who avoided to receive rent so as to create a ground for his eviction. The appellant/tenant also denied that he has impaired the value and utility of the premises and that respondent/landlady required the premises in good faith. The respondent/landlady examined herself and produced two photo copies of tenancy agreement Exhs. I/A and. A/2, payment bill of water and conservancy charges, Exh. A./3, electricity payment slip Exh. A./4 and gas payment bill Exh. A./5 and three rent receipts for November, 1992 to January, 1993 and receipt for the sum of Rs. 81,000 Exh. A./9, building plan Exh. A./10, receipt for the sum of Rs. 1,50,000 Exh. A./11, receipt for the sum of Rs. 50,000 Exh. A./12, photo copy of letter of respondent to K.E.S.C., Exh. A./13, cheque for the sum of Rs. 11,000 Exh. A./14, bank refusal to pay, slip, Exh. A./15, letter of respondent to Manager Singar Exh. A./16 and letter of Almurtaza Exh. A./17 and examined P.W.2 Saad Baig Khan. The appellant/tenant Mr. Wasif examined himself and produced relevant receipts Exhs. 0/1 to 0/3 and letters and also examined D.Ws. Nasir Ali and Muhammad Akbar. » After recording the above evidence and hearing learned counsel for parties, the learned Illrd Senior Civil Judge and Rent Controller, Karachi- East passed the impugned judgment. I have heard learned counsel for parties, perused the record and proceedings of the case and the case-law cited by the learned counsel for the parties. Learned counsel Mr. K.B. Bhutto for appellant has argued that the respondent/landlady received rent for the months of December, 1992 and January, 1993 through cheques from the appellant as per receipt after filing the said ejectment application, therefore, the said acceptance of rent amounted to waiver of default on the part of respondent/landlady, therefore, the finding of the learned Rent Controller on the point of default was erroneous in law and that an amount of Rs. 90,000 was still lying with the respondent/landlady which could have been adjusted towards rent and that in view of the admitted fact that the appellant/tenant has been paying huge amounts in advance from time to time to the respondent/landlady, therefore, . if there was any delay in the payment of rent for one month, the learned Rent Controller should have exercised discretion in his favour. He has further argued that the last tenancy agreement dated 1-2-1992 expired on 31st of December, 1992 and thereafter, appellant/tenant became statutory tenant, therefore, he was supposed to pay rent in terms of section 15(2)(ii) within sixty days after the monthly rent became due for payment under Rent Ordinance and that there has been no default in the payment of rent but only there has been late payment for the month of December, 1992. He has placed reliance upon 1993 SCMR 200, PLD 1990 SC 389, 1988 CLC 1703 and 1986 SCMR 441, in support of his contentions. Mr. Hamza Ah', learned counsel for respondent has argued that the appellant offered two cheques, dated 27-1-1993 for the month of December, 1992 and January, 1993 on 27-1-1993 as per Exhs. A/6 and A/8 when rent for December, 1992 was to be paid by 20-12-1992 and rent for January, 1993 was to be paid by 20-1-1993 and the said cheque for the month of January, was dishonoured and after that rent was deposited for the said month n Miscellaneous Rent Case No. 89 of 1993 on 14-2-1993 in the Office of Controller, therefore, there was no tender of rent within time under the law hence there was default in the payment of rent on the part of the appellant and that acceptance of rent for the month of December, 1992 would not amount to waiver in view of Article 114 of Qanun-e-Shahadat. He has placed reliance upon AIR 1956 Tripura 28, 1981 CLC 327, 1988 MLD 2759 and 1985 CLC 1429. He has also placed reliance upon Article 114 of Qanun-e- Shahadat that the respondent by accepting rent did not abandon her right to file ejectment application against the appellant/tenant and by acceptance of rent she was not estopped to file the same. He has argued that even on the expiry of tenancy period as per last agreement of tenancy, the appellant/tenant would not become statutory tenant but would be regulated by the terms and conditions mentioned in the last tenancy agreement. He has placed reliance upon PLD 1988 SC 190, PLD 1988 SC 228. He has further argued besides non-payment of rent for the month of December, 1992 and January, 1993 in time, the appellant/tenant has also failed to pay water charges amounting to Rs. 3,578 for the year 1991 as per Exh. A/3 and hat there was no balance of amount of the appellant left with the respondent for adjustment towards rent as per Exh. A/9 the balance amount of Rs. 81,000 was paid to the appellant and that even if Exh. A/9 is said to be not proved then also the said amount of Rs. 81,000 could not be adjusted towards the rent for the further period as said balance of Rs. 81,000 would be a debt amount which could be recovered through civil suit. He has also referred to para. 3 of the agreement dated 1-2-1992 which stated that from November, 1992 and onwards rent will be Rs. 11,000 per month and the same shall be paid up to 5th day of each English calendar month in advance which would show that there was no outstanding amount of the appellant with the' respondent. Learned counsel Mr. Hamza Ali has also referred to tenancy agreement Exh. A/1 para. 17, wherein it has been mentioned that the respondent undertook to refund fixed deposit of Rs. 39,000 to the second party which was received as security deposit subject to adjustment if any loss to the property and to the deduction of dues if any, therefore, the said amount of Rs. 39,000 being security deposit could not be adjusted towards the payment of rent. He has further contended that cases cited by the learned counsel for the appellant are not applicable and are distinguishable to the facts of the instant case. Mr. K.B. Bhutto for appellant in reply has argued that the clause in respect of payment of rent in advance was repugnant to the provisions of section 10 of the Rent Ordinance, therefore, the tenancy of appellant could not be regulated by the terms of expired tenancy agreement. So far the waiver, he has argued that the Indian case was not applicable as it dealt to a case of compensation. He has placed reliance upon 1971 SCMR 725 in support of his arguments. So far the water charges, he stated that the same pertained to future charges, therefore, the same were not due at the time when ejectment application was filed against the appellant. It is admitted by the appellant's learned counsel that the rent for the month of December, 1992 was paid through Cheque No. 92511465 on 27-1-1993 to the respondent and rent for the month of January, 1993 was paid through Cheque No. 92511466 on 27-1-1993 to the respondent but the said cheque for the month of January, 1993 was returned unpaid to the respondent as per Exhs. A./14 and A./15. It has also been admitted by the appellant's learned coun^l that the appellant deposited rent for the month of January, 1993 on i4-2-19»3 as per photocopy of receipt of Miscellaneous Rent Case No. 89 of 1993 filed with the R & P. It would mean that rent for the month of December, 1992 was tendered on 27-1-1993 while rent for the month of January, 1993 was tendered on 14-2-1993. Now the main point for consideration would be whether the appellant/tenant was to pay rent in terms of an agreement dated 1-2-1992 executed between the parties or was to pay rent under section 15(2)(ii) of the Rent Ordinance. The contention of the learned counsel for appellant is that after the expiry of tenancy period, i.e. on 31st of December, 1992, the appellant became statutory tenant, therefore, he was to pay monthly rent within sixty days from the date it became payable as required by section 15(2)(ii) of Rent Ordinance, therefore, rent for the month of December, 1992 which was paid on 27-1-1993 was paid withi time and rent for the month of January, 1993 which was also deposited on 14-2-1993 was also paid within time, therefore, there was no default. Contention of the learned counsel for the appellant that the clause in respect of payment of rent in advance in the tenancy agreement, dated 1-2-1992 was repugnant to the provisions of Sindh Rented Premises Ordinance, therefore, the appellant would be liable to pay rent under section 15(2)(ii) of the Rent Ordinance has no merit and substance. Reference is made to Mst. Zarina Khawaja v. Agha Mahboob Shah PLD 1988 SC 190 wherein Supreme Court of Pakistan at page 192 held :-- "The terms of the so-called expired agreement which are not repugnant to the rent law shall continue to operate. For example, the rate of rent, the mode of payment thereof including its advance payment or deposit, provision for agreed increase in rent provided it is not after the determination of fair rent, provisions for re-entry of a tenant after he vacates the premises for reconstruction, all covenants which support the conditions in section 15 of the Sindh Law and section 13 of the law repealed by it, and similar other conditions and covenants." Reference is also made to Syed Asghar Mi Imam v, Muhammad Mi PLD 1988 SC 228 where at page 231 the Supreme Court of Pakistan held :-- "The last argument of the learned counsel for the respondent has also no force. The date of payment of rent after the expiry of the 1st period of tenancy has been fixed in para. 4 of the agreement as 5-1-1975. It was to be of advance rent, which as held by us in the case of Mst. Zarina Khawaja, is permissible. Taking the liberal view in tenant's favour, we would hold that the use of the word 'monthly' and 'Rs. 1,100' in the last sentence of para. 4, would make it advance rent only for one month and not for six months. Thus, it was due on 5-1-1975 and would be payable up to 20-1-1975, i.e. within 15 days. It is in case of 'agreement' even if expired but continued by the law as held in the said case of Mst. Zarina Khawaja. The 60 days' rule will not apply." The decision of the Supreme Court is binding upon this Court and no contrary view has been cited on the said point by the learned counsel for appellant, therefore, it could be said that the terms in respect of the advance payment of rent being not repugnant to the Rent Laws would be operative and the appellant would be bound in terms of agreement to pay the rent to the respondent in advance of each calendar month. The next contention of learned counsel for appellant is that as the respondent accepted the cheques in respect of rent for the month of December, 1992 and January, 1993, therefore, it amounted to waiver of the default on his part, therefore, the finding of Rent Controller on the point of default was erroneous in law. Learned counsel for appellant has referred to Adam Ahmad Thaqia u. Muhammad Hanif 1988 CLC 1703. In the cited case, the landlord knowingly relinquished his right to apply for ejectment during the existence of tenancy agreement for the period of 11 months when the agreement specifically stipulated that rent would become due on the first of each month payable in advance. In the cited case four defaults were committed during the existence of tenancy agreement and after the expiry of tenancy agreement two defaults were committed and the landlord finally woke up from slumber on 5-8-1982 and filed eviction application before the Rent Controller, when the landlord admitted that last rent was paid by the tenant on 2-8-19C2, therefore, under the cited case it was held that conduct of landlord clearly implied waiver on his part. In the instant case the facts of the case are quite different and distinguishable to the facts of the cited case as in the instant case the said default pertained to the month of December, 1992 and January, 1993 when the ejectment application under section 15 of the Rent Ordinance was filed on 26-1-1993 and that after the acceptance of rent through two cheques for the months of December, 1992 and January, 1993 out of which cheque for the month of January, 1993 was not paid by the banker which was ultimately deposited on 14-2-1993 in the Office of Controller when the ejectment application was filed on 26-1-1993 by the respondent and there was, in fact, no delay in prosecuting the remedy, therefore, the acceptance of rent would not amount to waiver. Reference is made to Mian Muhammad Shaft v. Abdur Rahim PLD 1967 Pesh. 223 at page 228, para. 23 where the learned Judge in Chamber observed :-- "On the reasoning adopted in this authority, it would appear that the liability of a tenant for eviction in respect of buildings and tenancies governed by the Ordinance is to be regulated by the provisions of the Ordinance alone, and the principles of the Transfer of Properly Act are not to be imported. I am in respectful agreement with this reasoning. According to clause (i) of subsection (2) of section 13 of the Ordinance, a tenant is liable to be evicted if the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied that the tenant has not paid or tendered rent due by him in respect of building or rented land within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, within sixty days from the period for which the rent is payable. The liability to ejectment arises on account of the commission of default in the payment of rent and there is no provision in section 13 of the Ordinance that such liability is waived if the landlord accepts rent for a period subsequent to that for which default has taken place, or at a date subsequent to the filing of his application for the tenant's eviction." Reference is made to Dwarkin & Son Ltd. v. Hari Singh AIR 1955 NUC (Calcutta) 2896, D.B.) where it was observed at page 2897, column No. 1 :-- "Therefore, where there was no valid tender to the landlord within the time by which such a tender could be made and on the dates on which the rent was tendered to the landlord and accepted by him, there was no longer any right in the tenant's to make a deposit with the Rent Controller the tenants are in no way made to alter their position and are not affected in regard to any of their rights, by the acceptance, of the rent by the landlord. Therefore, the tenants' plea that the landlord by accepting the rent paid to him after the due date was debarred by the principles of estoppel and waiver from relying on clause (i) of the proviso to section 12(1) cannot succeed." The case AIR 1956 Tripura 28 cited on the point of waiver by the learned counsel for respondent has no application to the facts of the instant case. Reference is made to Mrs. Afia Baig v. Messrs Pakistan State Oil Company Ltd. PLD 1991 Kar. 239 wherein learned Judge in Chamber at page 245 observed :-- "'Waiver' precisely means to abandon or relinquish, a known right by an express declaration or by conduct. In ShukatAli v. Shakhawat Hussain 1984 CLC 34 a learned Single Judge while following a case of Muhammad Saleh v. Muhammad Shaft 1982 SCMR 33 observed as follows :-- 'The 'Waiver', therefore, is either express or implied. Waiver by implication can be inferred from the circumstances of each case. However, to prove waiver there should be some clear and decisive act or conduct beyond mere silence. Reliance is placed on the authority of the Supreme Court in Muhammad Saleh v. Muhammad Shaft 1982 SCMR 33, wherein it was held that 'omission to enforce one's legal right strictly cannot give rise to an inference that the right has been abandoned'. The Supreme Court in the case, referred to above held that 'in order to establish Svaiver' by conduct' it must be shown, firstly, that the person entitled to the right had knowledge of the breach thereof, and secondly, that he had acquiesced or failed to act, notwithstanding that knowledge. Therefore, mere failure to take objection or to take action due to ignorance of the breach of one's right cannot be said to give rise to any 'waiver' by conduct. A perusal of this case would show that in order to constitute waiver, something more than mere in action or delay in asserting one's right would be necessary. Therefore, mere failure to file eviction application for eviction cannot be said to give rise to any 'waiver' by conduct" Reference is made to C.L. Massey v. Muhammad Amin 1988 MLD 2759 wherein learned Judge in Chamber observed :-- "There is no provision in section 13 of the Ordinance whereby the landlord waives his right to receive rent as provided under the statute if he accepts rent for the period subsequently after the default has already been committed or on a date before the filing of the ejectment application. The ejectment application filed by the respondent No. 1 was competent even if he had received rent from the petitioner after the default had been committed by him." Reference is also made to Abdul Mqjeed v. Ibrahim 1984 CLC 1956 wherein learned Judge in Chamber at page 1600 observed :-- "In any case the default had already been committed and by filing distress warrant proceedings and recovering the rent, without anything further, it cannot b« presumed that the landlord had waived the default and had given up his right to pursue the case for ejectment on the ground of default in the payment of rent. Of course, there might be cases wherefrom the circumstances and the special facts of those cases the Courts may come to the conclusion that there was a waiver on the part of the landlord as far as the default is concerned but otherwise the default that has been committed is not obliterated by subsequent payment." In the instant case there is no evidence from the side of appellant that the respondent waived abandoned his right to file ejectment application against him either expressly or by his conduct. It would appear that soon after the 8 acceptance of cheques in respect of the rent, the respondent filed eviction application against the appellant, therefore, there could not be waiver on the part of the respondent in favour of the appellant so far his right to file eviction application under the law. Accordingly, the said contention of learned counsel has no merit and substance. The third contention of the learned counsel for appellant is that an amount of Rs. 90,000 was lying with the respondent, therefore, the latter could have adjusted rent from the said amount and, therefore, the finding of Rent Controller on the point of default was based on misappreciation of the evidence on record. Para . 3 of the tenancy agreement dated 1-2-1992 runs :-- "That the monthly rent is Rs. 4,000 (Rupees four thousand only). The second party shall pay Rs. 2,000 (Rupees two thousand only) in cash and Rs. 2,000 (Rupees two thousand) shall be adjusted towards the adjustable Advance Rent up to the month of June, 1992 and from July, 1992 to October, 1992, the rent of Rs. 4,000 will be received in cash/cheque and further from November, 1992 and onwards the rent will be Rs. 11,000 per month and the same to be paid up to 5th day of each English Calendar month in advance." From the above provision, it would appear that from November, 1992 onwards the rent would be Rs. 11,000 per month and same shall be paid by 5th of each calendar onth in advance. There is nothing that any amount was in balance with the respondent or that some portion of the said rent or the entire rent was to be adjusted from the balance if any with the respondent. Para . 17 of the said agreement further states :-- "That the first party doth hereby undertake to refund the fixed deposit of Rs. 39,000 (Rupees Thirty nine thousand only) to the second party without any interest/profit thereon which was received as security deposit, subject to adjustment of any loss/harm to the property and subject to deduction of dues if any, and without any interest/profit thereon." The above provision confirms the above interpretation of para. 3 of the said agreement though there was only an amount of Rs. 39,000 towards the fixed deposit with the respondent which was to be refunded subject to its adjustment towards the loss/harm to the property and was not to be adjusted towards the rent. In addition to the above two provisions contained in the admitted documents between the parties there is a receipt Exh. A/9 wherein it has been said to have been acknowledged by the appellant/tenant to have received cash amount of Rs. 81,000 from the respondent from the remaining balance of unadjusted advance rent, though the signature on this document has been denied to be of the appellant/tenant by his learned counsel but it would not be out of place to state here that the appellant/tenant nowhere in the written statement stated as to what was left in balance from the sum of Rs. 2,00,000 paid by him to the respondent though he stated that an amount of Rs. 2,00,000 was deposited with the respondent from which monthly rent have been adjusted. If there would have been any balance left then he could have stated so in the written statement though admittedly some amount out of Rs. 2,00,000 must have been adjusted as per terms of agreement and sorile of it must have been left which as per Exh. A./8 was paid in cash to the appellant/tenant. In fact, the appellant/tenant cross-examined the respondent wherein latter stated that out of Rs. 2,00,000 given by the former, advance rent amounting to Rs. 1,19,000 was adjusted and balance of Rs. 81,000 was refunded to the appellant/tenant. In cross-examination respondent/landlady denied the suggestion that still there was outstanding balance of Rs. 81,000 lying with her and that she has managed forged receipt in respect of refund of the balance amount of Rs. 81,000. However, in view of the contentions of the parties and evidence on record, the question about the balance of amount, if any lying with the respondent could be decided by the competent Civil Court in civil suit not in the rent proceedings. In view of the terms of last tenancy agreement as per clause (3) of the said agreement an amount of Rs. 11,000 is to be paid per month by 5th of each calendar month in advance and the security deposit could not be adjusted towards the future rent. I am supported by a case reported in Mrs. Zarina Khawqja v. Agha Mehboob Shah PLD 1988 SC 190 at page 201 :-- "The next question (sixth) is to be answered in the light of the foregoing discussion in the negative. The security deposit in this case is to be applied by the landlord, according to the terms quoted earlier, to compensate himself at the time of the tenant handing over possession to him, for unpaid rent and/or damages caused by the tenant to the property at any time. Its application by the High Court for absolving the tenant/respondent from liability to make a deposit under section 16(2) and old 13(6) is impermissible and unlawful. The default remained intact notwithstanding the security deposit. It is clarified that the covenant in each agreement as to security will be construed according to the agreement itself." I am also supported by a case reported in Syed Asghar All Imam v. Muhammad Mi PLD 1988 SC 228 at page 231 :-- "The second question as already analysed depends upon the terms of agreement; which in this case do not permit the utilisation of the security deposit for obviating the default committing by the respondent in payment of the rent in accordance with the terms of the agreement." In the instant case also the terms of agreement above-quoted would show that there was no advance and the balance of amount of Rs. 81,000 was refunded to the appellant/tenant and the appellant/tenant was to pay rent of Rs. 11,000 per month in advance by 5th of every calendar month therefore, in any advance even if still remained with the respondent the same could not be adjusted towards the payment of rent for the months of December, 1992 and January, 1993. Accordingly, contention of learned counsel for appellant that an amount of advance deposit which was lying with the respondent should have been adjusted towards the rent has no merit and substance. Now there remains reported decisions cited by the learned counsel for appellant. The first case is that of M.K Muhammad v. Muhammad Abu Bakar 1993 SCMR 200. In the said case the Supreme Court of Pakistan at page 207 observed :— "As regards the merits of the case, it may be observed that the learned Rent Controller as well as the learned Judge in Chamber found that the appellants had committed default. The learned Rent Controller relied upon the factum that no rent receipt was produced for the defaulted period by the appellants. In respect of remission of rent through the money order it was pointed out that the appellants' witness in the cross-examination admitted as follows:-- 'Money order was sent on 28th August or before this I do not remember. It was not for Rs. 600.' The above finding has been concurred with by the High Court. Since both the Courts have held that the respondent had received a sum of Rs. 17,000 which he was not entitled to receive, the arrears of rent of the period in default could have been adjusted against the above amount or, in any case, the default could have been condoned as the respondent was holding with him an amount more than the amount of arrears of rent, which he was not entitled under the law to receive from the appellants. We are, therefore, inclined to reverse the finding of the two Courts below on the question of default." In the said cited case, there was specific finding that an amount of Rs. 17,000 which was with the respondent/landlord was not entitled to receive the same, therefore, the amount of arrears of rent of the period in default was held to 'be adjusted against the said amount or in any case, the default could be condoned as the respondent was holding with him an amount more than the amount of arrears of rent which he was not entitled under the law to keep the same. In the instant case there is no such evidence nor any such finding of the Rent Controller nor it was pleaded by the counsel for appellant that the respondent/landlord was not entitled to the advance of Rs. 2,00,000. On the contrary, in the instant case, it has come on record that there was no balance left behind, out of Rs. 2,00,000 with the respondent which could be adjusted, as per Exh. A./9 an amount of Rs. 81,000 was refunded to the appellant and in view of the case-law reported in PLD 1988 SC 190 and 228 the security deposit of Rs. 39,000 could not be adjusted towards future rent, unless there has been any provision in the agreement of tenancy between the parties which admittedly in the instant case did not exist. Accordingly, the facts of the cited case are distinguishable to the facts of the instant case. Next case is Mst. Saeeda Khatoon v. Muhammad Ahmed Latifi PLD 1990 SC 389. In the said case the Supreme Court of Pakistan held :-- That amount of security could not be adjusted against the rent due during the occupation of the premises by the tenant or before surrender of vacant possession of the premises as it would amount to changing the terms of agreement on which the premises was held by the tenant." However, in the said case there was only default for one month and the Rent Controller had exercised his discretion in favour of appellant/tenant and High Court had also not found exercise of discretion arbitrary, capricious, therefore, Supreme Court also did not interfere with the discretion exercised by the Rent Controller and upheld by the High Court, therefore, the facts of cited case have no application to the instant case so far as the exercise of discretion in respect of default is concerned. On the contrary on the point of adjustment of the arrears of rent from the security deposit this case supports the contention of the respondent's counsel. In Karamat Hussain v. Kazi All Muhammad 1986 SCMR 441 it was held :-- "That the High Court has agreed with the two Courts below that, technically speaking, there was a default by the tenant inasmuch as he had not complied with the stipulation contained in clause (iv) of the lease agreement relating to the payment of Rs. 70 per month for the two months in dispute, but it has observed that on the date of the filing of the ejectment application a sum of Rs. 140 was still lying in deposit with the landlord out of the advance rent paid by the tenant." Supreme Court of Pakistan held that the circumstances showed that the default if any way of technical nature and there was a sum of Rs. 140 still lying in deposit with the petitioner from the advance rent, therefore, the Rent Controller should have exercised discretion in favour of tenant. Accordingly, exercise of discretion by High Court was said to have been rightly exercised. The facts of instant case are distinguishable to the facts of the cited case. In Fazal Hussain v. Mst. Bundu Hqjjan 1991 MLD 651 the landlord was found to have never issued rciu receipt and did not produce any book of account to show that rent for a particular month was not paid by tenant and landlord was found to have received certain amount from tenant in advance which could be adjusted towards monthly rent if there was any default and it was also found that landlord did not come to Court with clean hands as he suppressed fact that previously he had filed rent case for eviction of tenant. In the circumstances, the facts of the case cited are distinguishable to the facts of the instant case. In view of the evidence and case-law discussed above, the contentions of the learned counsel for appellant as to the finding of default of the Rent Controller have no merit. Accordingly, the finding of the Rent Controller is maintained on the issue of default. Learned counsel for appellant has also challenged the finding of the Rent Controller in respect of the personal bona fide need of the respondent/landlady. He has argued that the respondent/landlady did not state in the ejectment application that she was already running any garment business in some other premises but only stated that she needed the premises in question for her requirement to run a garment manufacturing business there but subsequently in the affidavit-in-evidence of respondent/landlady stated that she was already carrying out garment business under the name and style of Hina Garments on low scale without having any manufacturing unit elsewhere and this improvement made by the respondent in her statement could be said to be suppression of the material fact and thereby latter has not come to the Court with clean hands. Learned counsel for appellant has further argued that if she would have disclosed the said fact about her establishment being run in a particular place then she could have been asked about the suitability and sufficiency of that accommodation so as to disentitle her for having the premises in question for her personal requirement. He has also argued that the respondent has not examined any person from the establishment said to have been running for which she needed the present premises as well. He has placed reliance upon 1986 CLC 1715, 1983 SCMR 473; 1991 MLD 326, 1985 CLC 2791, 1984 CLC 755 and PLD 1981 SC 590 in support of his contentions. Mr. Hamza Ali counsel for respondent has referred to para. 5 of ejectment application and para. 15 of the written statement filed by the parties so also para. 10 of affidavit-in-evidence of respondent/landlady showing that the respondent/landlady has given the required particulars as required by rule 2 of Order 6, C.P.C. in the ejectment application and has not suppressed any material fact so as to cause any prejudice to the appellant/tenant. He has further contended that the respondent/landlady has proved her bona fide need and the said need cannot be said to be a tainted one and further that the evidence of the respondent/landlady was consistent with pleadings and further the appellant/tenant has failed to rebut his testimony of the respondent on the point of bona fide need and thereby the finding of Rent Controller was legal and based on proper appreciation of the evidence on record and the case-law. He has placed reliance upon 1993 CLC 148, 1993 CLC 505, 1993 CLC 2272, 1993 MLD 410 and 1993 SCMR 67 in support of his contention. The respondent/landlady has in para. 5 of her ejectment application stated that she required premises in good faith for her own occupation and use as she wanted to start a garment manufacturing business in the said premises. In her affidavit-in-evidence in para. 10 she has reiterated her statement made in the ejectment application and has further stated that she was already carrying on garment business under the name and style of Hina Garments on low scale without having any manufacturing unit elsewhere but would start the same in the demised premises for which she has obtained invoices of garment manufacturing machines from various companies. The appellant/tenant has denied in written statement in para. 15 that need of the respondent was not bona fide and in good faith but was mala fide and she wanted to harass the appellant and he in his affidavit-inevidence in para. 13 has denied that premises were required by the respondent/landlady in good faith. In the cross-examination of the respondent/landlady denied that the premises was not required for personal use by her in good faith and that she would sell the same and shift to America and that she was not having any licence of export and import The respondent's learned counsel also suggested to the appellant/tenant in the cross that the respondent had informed him that she would instal factory of garment in the premises and he knew that she was carrying out the business in the name and style of Hina Garment and wanted to extend her business, therefore, needed the premises in question to which the appellant/tenant denied. The respondent/landlady in the ejectment application as well as in the affidavit-in-evidence has stated that she needed the said premises for her bona fide need for running the garment factory in it. Subsequently, she also stated in her affidavit-in-evidence that she was already running the said business. There is no evidence to rebut the testimony of the respondent/landlady on the point that she did not require the said premises for running a garment factory. There is also no evidence on record to show that the respondent/landlady was not running the said business under the name and style of Hina Garments. On the contrary, the respondent has produced a letter addressed on her letter pad of Hina Garments to Area Manager of Singer Sewing Machine and one letter written by Almurtaza to Hina Garments, 126, Darakhshan Society, Malir, Karachi. So far the plea of the learned counsel for appellant that the respondent/landlady has suppressed the fact in the ejectment application that the respondent was already running garment business, but she did state in the paragraph 10 of her affidavit-in-evidence and this was sufficient notice to the appellant/tenant who could not be said to have been prejudiced in any way and the learned counsel for the appellant could have shaken the veracity of respondent in her cross-examination which was conducted long after filing of affidavit-in-evidence and for that purpose the appellant/tenant could have inquired about the suitability and sufficiency of the premises where she was carrying on her business but having not done so, the appellant/tenant could not say that there was suppression of material fact which has prejudiced the appellant. I do not find any substance in the said contention. The testimony of the respondent could not be shaken in the cross-examination and there has been no sufficient reliable rebutting evidence to the evidence on point of requirements in good faith of the respondent in respect of the premises. It is settled law that it was not necessary that the landlord should give all details in respect of the business which he could start in the premises for which eviction has been sought. If the landlady proves her need to be based on good faith and her testimony is not shaken in the crossexamination and no satisfactory rebutting evidence is adduced to the said testimony then it would be deemed that the requirement in good faith has been proved. Reference is made to Abdul Mqjeed Shahid v. Syed Abdul Bashir 1993 CLC 148, Mrs. Chung Ying Hsiung v. Mst. Seema Saeed 1993 CLC 505, National Bank of Pakistan v. Shaikh Muhammad Sharif and 3 others 1993 CLC 2272, Atiuddin v. Saleem Karim 1993 MLD 410, Agaria Amir Mi v. Abdul Majid 1993 SCMR 67, Muhammad Bashir v. Sakhawat Hussain 1991 SCMR 846 in support of finding that the respondent/landlady has proved her requirement in good faith and that there was sufficient evidence on record which could not be rebutted by the appellant/tenant, therefore, the contention of learned counsel for the appellant that the finding on the issue of default was erroneous in law and based on misappreciation of the evidence has no merit and substance. Now there remains the cases cited by the learned counsel for appellant. The first case cited is Umer Din v. Additional District Judge 1983 SCMR 473 where the Rent Controller has ordered eviction of the tenant but the said order was reversed by the Additional District Judge holding that landlord has filed the present ejectment application after having failed in the first round of litigation for the eviction of tenant from the same shop and thereafter writ petition was preferred against the said order of the Additional District Judge where plea was taken that the High Court disregarded the contention that there was misreading of evidence by the learned Additional District Judge which material influenced the mind of the Court The Supreme Court held that even if misreading of evidence by the learned Additional District Judge is ignored the rest of evidence on record would establish that premises was not required in good faith by the landlord. The facts of the instant case are quite different and distinguishable to the cited case. In Abdul Razak v. Abdul Sattar Khan 1991 MLD 326 case there was requirement of the landlord for his son when the latter admitted in the cross-examination that he was carrying on business as an agent of fruit products which fact was concealed by landlord in his ejectment application and there was no evidence available on record to satisfy the Court that the shop in occupation of the landlord's son was not sufficient for his needs, therefore, it was held that the ground of bona fide need was not established. The facts of the instant case are quite different and distinguishable to the cited case. In Mst. Begum Jan v. Abdul Rasool 1984 CLC 755 case, the landlady did not come to the Court with clean hands and suppressed the material facts in the rent application filed on the ground of bona fide requirement when the landlady was not widow and pleaded as widow so as to gain sympathy by making misrepresentation though the landlady became widow during the pendency of appeal before this Court, it was held that she was not entitled to ejectment and should prefer fresh case under section 14 of Rent Ordinance. No other plea has been raised before me by the learned counsel for appellant in support of his appeal except the above which have been discussed and answered as per evidence and the case-law and pleas raised have been found to have no merit and substance. Consequently, the impugned judgment of the learned Rent Controller is maintained and the appeal is dismissed with no order as to costs with direction to the appellant to vacate the premises in question within 90 days subject to the deposit of rent regularly in Court. (MYFK) Appeal dismissed.

PLJ 1996 Karachi 1142 [DB] PLJ 1996 Karachi 1142 [DB] Present •. ghulam haider lakho and dr. ghous muhammad, JJ. Dr. RAEES FARHAN MUSHTAQ and another-Petitionere versus Mst. NAHEED alias MONA and 3 others-Respondents Constitutional Petition No. D-602 of 1995, decided on 28th November, 1995. Constitution of Pakistan, 1973- —Art. 199--West Pakistan Family Courts Act (XXXV of 1964)--Ss. 14, 17 read with Ss. 2(b) and 3 Civil Procedure Code (V of 1908) Ss. 24 & 151-- Suit for dissolution of marriage-Dismissal of-Appeal to—Another appeal against dismissal of application under S. 476, Cr.P.C. before another Additional District Judge filed by petitioner-Petitioners writ petition for hearing both appeals by one Court and for decision criminal appeal prior to appeal against dissolution of marriage case-A Court possessed of an appeal against decision of Family Court cannot be termed as a Family court-It is only the Family Court which owe their origin and creation to 1964 Act which courts entertaining appeals arising out of said Act are neither expressly created by that Act nor are they by any fiction of law deemed to be treated as Family Court-District Judge was directed to assign the two matters to any one Court or himself--It was observed that law favours adjudication of proceedings which arise out of same/similar issues/parties together, so that a court can view the entire controversy in its correct perspective and without having to look into things independently and in isolation which approach is always proper to result into over looking of things. [P. 1144] A Dr. Raees M. Mushtaq, Advocate for Petitioners. Naimatullah Soomro, Advocate for Respondents Nos. 1 and 2. Date of hearing: 27th November, 1995. judgment Dr. Ghous Muhammad, J.-In this Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners have prayed as follows :— "(a) That Appeal No. 122 of 1995, pending in the Court of IVth Additional District Judge, Hyderabad and Appeal No. 36 of 1995, pending in the Court of 1st Additional District Judge, Hyderabad , may be ordered to be tried by any one Court. (b) Since serious allegations of perjury have been made against the respondents and irrefutable documentary and oral evidence have been brought on record, which will fully prove that the respondents have committed offences of perjury as such this Honourable Court may be pleased to direct that the proceedings under section 476, Cr.P.C. for which appeal under section 14 (1) of Family Courts Act, 1964, has been filed may proceed first after the decision of this petition, the Family Civil Appeal No. 122 of 1995, may be heard and decided by the trial Court after final adjudication of Appeal No. 36 of 1995." The admitted facts are that the respondent No. 1 filed Family Suit No. 26 of 1994 for dissolution of marriage which was dismissed on 25-7-1995 by the learned Family Court, Hyderabad . She preferred Family Appeal (No. 122 of 1995) under section 14 of the Family Courts Act, 1964 in the Court of District Judge, Hyderabad which was transferred on the file of learned IVth Additional District and Sessions Judge, Hyderabad and it is still pending. During the pendency of Family Suit No. 26 of 1994 the appellant had submitted applications under section 476, Cr.P.C. for proceedings against the respondents as allegedly they had committed perjury while giving evidence in the family suit. These applications were dismissed on 16-8-1995 by the learned Vth Extra-Joint Civil Judge and F.C.M., Hyderabad and the said dismissal order has been challenged in Miscellaneous Appeal No. 36 of 1995 by the petitioner No. 2 in the Court of learned District Judge, Hyderabad but this appeal was also transferred on the file of learned 1st Additional District and Sessions Judge, Hyderabad. We have heard Dr. Raees M. Mushtaq learned counsel for the petitioners and Mr. Naimatullah Soomro learned counsel for the respondents Nos. 1 and 2 and perused the record. Learned counsel for the petitioners submitted that in the interest of justice Miscellaneous Appeal No. 36 of 1995 be disposed of before final adjudication of Family Appeal No. 122 of 1995. Learned counsel for the respondents Nos. 1 and 2 submitted that instead of seeking remedy in this Constitution Petition the petitioners should have moved the learned District Judge for the reliefs prayed for but ultimately conceded to the grant of relief as contained in sub-para. 'A' and also prayed for early disposal of the two appeals. The essential question that warrants consideration is whether there exists any bar in respect of consolidation of the two appeals stated above. In S. Shahid Miv. Mst. Mubarak Bano PLD 1976 Kar. 68, a Division Bench of its Court has taken in view that sections 24 (providing for a general power of transfer and withdrawal of cases) and 151 of the C.P.C. would not be available to order transfer of a family suit from one Court to another. This conclusion has been so arrived in view of section 17 of the Family Courts Act, 1964 which has made the provisions of the C.P.C. inapplicable to family suits except sections 10 and 11. The views expressed in the said judgment no doubt bind us, however, the rule enunicated therein is only extendable to proceedings before the Family Courts and not to Appellate Courts. We are of the view that a Court possessed of an appeal against the decision of the Family Court cannot be termed or treated as a Family Court. We are fortified in arriving at this conclusion in view of the clear terms of the statute i.e. the Family Courts Act, 1964 which in its section 2 (b) defines as "Family Court" to mean a Court constituted under the Act, while section 3 of the said Act provides for establishment of Family Courts at various places. From the words of the statute it becomes crystal clear that while entertaining an appeal under section 14(l)(b) of the Family Courts Act, 1964, the Courts of the District Judge or Additional District Judge do not act as a Family Court for the very simple reason that the 1964 Act has not created the latter. It is only the Family Courts which owe their origin and creation to the 1964 Act while the Courts entertaining appeals arising out of the said Act are neither expressly created by that Act nor are they by any fiction of law deemed to be treated as Family Courts. We accordingly hold that the rule enunciated in the case of S. Zahid All would be inapplicable to the Courts entertaining A i appeals arising out of orders passed by the Family Judge. We, therefore, direct the District Judge, Hyderabad to assign the two matters to any one Court (i.e. Additional District oudge in Hyderabad) or himself, at his convenience. In this regard the District Judge can exercise powers under section 24 of the C.P.C. in respect of Appeal No. 122 of 1995, while in relation to Miscellaneous Appeal No. 36 of 1995 recourse can be had to section 528 of the Cr.P.C. as Miscellaneous Appeal No. 36 of 1995 is a case of criminal nature. It is also pertinent to note that the District Judge is possessed of the power to assign appeals and functions of hearing an appeal to any Additional District Judge as held in Malookan v. Sher Muhammad PLD 1977 Lah. 18. Before parting with this issue we may further observe that law favours adjudication of proceedings which arise out of same/similar issues/parties together, so that a Court can view the entire controversy in its correct perspective and without having to look into things independently and in isolation which approach is always proper to result into overlooking of things, matters or evidence resulting in miscarriage of justice. In view of the above discussion this petition is allowed only for prayer "A" with no orders as to costs. Sine R & Ps of both the appeals pending in this Court are no more required the office is directed to immediately return the same to the Courts concerned for further proceedings. (MYFK) Petition partly allowed.

PLJ 1996 Peshawar 3 (DB) PLJ 1996 Peshawar 3 (DB) [Abbottabad Bench] Present: mian muhammad ajmal and jawaid nawaz khan gandapur, JJ. SULTAN ERAJ ZAMAN KHAN and another-Appellants versus COLLECTOR, LAND ACQUISITION, KHANPUR DAM, and another—Respondents R.F.A. No. 26 of 1993, partly accepted on 14.6.1995. Land Acquisition Act, 1894 (I of 1894)-- —S. 23--Land with superstructure thereon-Acquisition of—Compensation of-Enhancement of-Prayer for-Under Section 23 of Act, an owner is entitled to get compensation of his property which a willing vendor ight . reasonably expect to obtain from a willing purchaser-Usual methods adopted for determination of market value are (1) opinion of valuaters/experts (2) price 'paid within a reasonable ime in bonafide transactions of similar properties within its close proximity and (3) rents and profits of property received shortly before acquisition-Valuation statement prepared by local Commissioners cannot be brushed aside as they were disinterested and independent officers whose report can be relied upon--Held : Their valuation statement is nearer to market value and same is approved with some modification, [Pp. 7&8] A, B & C Mian Tariq Mahmood, Advocate for Appellants. Mr. Abdul Qadir Khan, Advocate for Respondents. Date of hearing: 14.6.1995. judgment Mian Muhammad Ajmal, J.--This regular first appeal is directed against the judgment/decree of the learned District Judge/Judge Land Acquisition, Haripur dated 30.11.1992 whereby he, while partly accepting the objection petition filed by the objectors/appellants enhanced the compensation of land from Rs. 6000/- per kanal to Rs. 9950/20 per kanal, thus awarded additional compensation of Rs.94804/80 alongwith compulsory acquisition charges and interest but their claim relating to compensation for superstructure was rejected. 2. The Land Acquisition Collector Khanpur Dam vide Award No. 99 dated 27.6.1975 acquired residential property of the appellants built on khasra Nos. 551 and 552 measuring 24 kanals situated in the limits of village Khanpur, the compensation for the superstructure was assessed at Rs. 1521118/- and for the land underneath the house (a Rs. 6000/- per kanal. Being dissatisfied the owners-objectors filed objection petition before the Land Acquisition Judge Haripur, wherein they claimed a sum of Rs. 50,00,000/- for the built up property and Rs. 20,000/- per kanal for the land underneath. The respondents contested the objection petition. Upon the. pleadings of the parties following issues were framed :— 1. Whether the awarded compensation for the disputed property is inadequate of so what is the correct compensation to which the petitioners are entitled ? 2. Whether petitioners have got a cause of action ? Whether the petition is bad in its present form? 3. Whether the petition is bad on account of non-joinder and misjoinder of parties ? 4. Whether petitioners have received compensation if so to what effect ? 5. Relief. The parties led their respective evidence. The learned Additional District Judge Haripur vide his order dated 4.9.1979 appointed Mr Shaukat ZamanSub-Engineer District Council Abbottabad as local ommissioner who appeared before the court on 30.1.1980 and informed it that the house in question was a big 'Mahal' consisting of number of rooms, floors and it was impossible for him alone to carry out assessment of the superstructure in accordance with the rates prevailing at the time of its acquisition, as, for this purpose he would have to measure eveiy inch of the superstructure and to collect evidence. The court acceded to the request of Mr. Shaukat Zaman and appointed Mr. Hazrat Sultan Executive. Engineer PWD (Building) Abbottabad as local commissioner and directed Mr. Shaukat Zaman to assist him in the jobs. Mr. Hazrat Sultan due to his preoccupations showed his inability to carry put the entrusted job and requested that same may be assigned to some body else vide his letter dated 23.7.1979. The learned court thereafter substituted District Engineer District Council Abbottabad to be a local commissioner with Mr.. Shaukat Zaman Sub Engineer as his coopted member and both of them were directed to visit the suit house, take measurements and assess the cost of superstructure in accordance with rates prevailing at the time of acquisition of the property. They submitted their report wherein they assessed Rs. 22,65,437/- as cost of the building. The Referee court after taking into account the evidence of the parties and the commission reports, dismissed the objection petition and affirmed the award. The appellants feeling aggrieved of the judgment/decree of the Referee court filed an appeal before this Court (R F A No. 7 of 1985) which was accepted and the case was remanded back to the learned Referee court for decision afresh after allowing the parties an opportunity to lead their further evidence. After remand the objector did not wish to produce any other evidence and relied on the evidence already recorded by him. However, the respondents produced Obaidullah Khan SDO WAPDA twice. The court after considering the material available on the record enhanced the price of land on the basis of one year average to Rs. 9950/20 per kanal and held that the objectors were not entitled to the enhancement in respect of superstructure. With this modification he partly accepted the objection petition vide his judgment and decree dated 30.11.1992. The appellants have impugned the said judgment/decree in this RFA. 3. Learned counsel for the appellants contented that the learned Referee court discarded the report of the local commissioner simply on the ground that they did not assess the compensation of the building in question in accordance with scheduled rates of WAPDA but preferred estimated cost prepared on the basis of the said rates by Mr. Obaidullah SDO WAPDA whereby the cost of the building was assessed at Rs. 1521118/- whereas under the law the value should have been determined under the provisions of Section 23 of the Land Acquisition Act. He submitted that the appellants were not bound to accept the WAPDA schedule rate on which their valuable property was assessed. He, submitted that the assessment which has been carried out by the local commissioners being exhaustive and in detail was quite reasonable and should have accepted by the court. Learned counsel also made a statement at the bar that the local commissioners report may be accepted being the total compensation of the property inclusive of the value of the land underneath of the building. 4. Opposing the aforesaid contentions, the learned counsel for the respondents submitted that the appellants have been adequately compensated as the superstructure had been assessed keeping in view the WAPDA schedule rate and the value of land has already been enhanced by the learned Referee Court. They defended the award and the decree and submitted that the appellant is no more entitle to any further compensation. 5. We have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. Section 23 of the Land Acquisition Act defines matters to be considered while determining the amount of compensation for the land acquired under the Act, which are as follows : "23. Matters to be considered in determining compensation: (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration :— irst, the market-value of the land at the date of the publication of the notification under Section 4, sub-section (1), Secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason serving such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the lariJ by the Collector, the person interested is compelled to change his , residence or place of business, the reasonable expenses (if any) incidental to such damage; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's aking possession of the land. (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition." In the above Section word 'land' has been repeatedly used which has been defined in clause (a) of Section 3 of the Act, which includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth. According this definition land means land alongwith any superstructure, fixtures etc. thereon and the benefits accruing therefrom, as such the word 'land' has an enlarged meaning which can be equated with the term immovable property as defined in Section 3 (25) of the General Clauses Act (X of 1897). The first matter which has to be considered for determination of compensation of the land is its market value as on the ^ date of the publication of the Notification under Section 4 of the Act, hence it essentially implies the market value as the value of the property acquired. The function of the assessing authority under Section 23 of the Act was to find out the market value of the property to be acquired not necessarily under their own schedule rates, but with reference to the principles laid down in it. It is well settled that under this Section that an owner is entitled to get the compensation of his property which a willing vendor might reasonably expect to obtain from a willing purchaser. The usual methods which are adopted for the determination of market value on the date of notification under Section 4 of the Act are: (1) Opinion of the valuators/experts (ii) Price paid within a reasonable time in bonafide jr transactions of the similar properties within its close proximity, and (iii) rents and profits of the property received shortly before the acquisition. The mode of valuation is not governed by any uniform rule but either of the above or more than one may be adopted by the Collector or the court having regard to the nature of the property. In respect of building which had not been let out, the method to assess its market value was to fix the estimated cost of reproducing the building at the present time minus depreciation in consideration of the age of the building and for the costs of such repairs as might be required apart from depreciation, while another method was to ascertain the value through the valuators or the experts. In this case the court appointed two experts jointly for assessing the value of the building who after taking measurements of eveiy item of the huge building (Havaili) submitted their report item-wise comprising of 187 pages. The valuation of the building was prepared in accordance with the schedule rates of C&W for the year 1967-68 which come to Rs. 2265437/- Mr. Obaidullah Khan SDO WAPDA in his statements Ex. RC, RD. RW l/C/4, RW l/C/5, RW l/C/6 etc., conceded that first class material and accessories had been used in the building which contained structures of architectural and ornamental beauty, hence to such a building schedule rate of WAPDA which were even lesser to the C&W schedule rates could not be applied. Syed Asghar Hussain Sub- Engineer of the acquiring department prepared the estimate valuing the building to Rs. 1521118/- which was endorsed by Noroz Khattak XEN (RW 2), who in his statement admitted that no inquiry as made regarding the market value of the items which were available in the schedule. He also affirmed that he checked only 30 percent of the measurements. The valuation statement prepared by the local commissioners cannot be brushed aside as the same is based on their personal observations, inquiry and on the facts of their own knowledge. They appeared in court as witnesses in support of their valuation statement which gives the rate adopted by them. They were disinterested and independent Officers whose report can be relied upon. As against this the value got assessed by the owner through the private firm cannot be attached any importance as it was prepared in absence of the other side and likewise the valuation assessed by the officers of acquiring department being partial cannot be given any significance. - The law envisages the valuation of the market value of the acquired property which the owner is entitled to get. The valuation statement of the local commissioners seems to be nearer; to the market value, as such the same is approved with the modification that the valuation of the building Rs. 22,65,437/- would also include the value of the land as well, hence after adjusting the total compensation of land amount to Rs. 23,8804/80 from Rs. 22,65,437/- the balance amount be paid alongwith compulsory acquisition charges and interest at permissible rates to the appellants as agreed by their counsel. The appeal is allowed in the above terms with no order as to costs. (ZB) Orders accordingly.

PLJ 1996 Peshawar 9 PLJ 1996 Peshawar 9 (Circuit Bench Abbottabad) Present: MIAN MUHAMMAD AJMAL, J. GHULAM NABI KHAN--Petitioner versus ABDUL RASHID and another-Respondents Civil Revision No. 137 of 1991, accepted on 1-10-1995 Adverse Possession— —Suit for possession of house-Adverse possession-Claim of-Dismissal of suit and appeal—Challenge to—Possession cannot be said to be hostile, uninterrupted and peaceful-In view of admission of defendant No. 1 that house belongs to petitioner, question of ownership needs no further proof-He failed to substantiate either of pleas of adverse possession taken by him in written statement and that of mortgage raised at evidence stage, which even otherwise are inconsistent inter se-Held : Plaintiff has abundantly proved that house belonged to him and it was rented out to defendant No. 1 through defendant No. 2 and was never paid any rent, therefore, he was within his right to seek possession of house but he is not entitled to mesne profit-Petition accepted. [Pp. 10&11] A Mr. Muhammad Pervaiz Jehangiri, Advocate for Petitioner. Mr. Ejaz Afzal Khan, Advocate for Respondent. Date of hearing: 1.10.1995 judgment This revision is directed against the judgment/decree of the learned District Judge Mansehra dated 29.6.1991 whereby he, while maintaining judgment/decree of the lower court dismissed the appeal of the petitioner. 2. The petitioner herein, filed a suit for recovery of Rs. 16,400/- as mesne profit at the rate of Rs. 200/- per month from 6.5.1981 to 6.3.1988 and for possession of the house as detailed in the heading of the plaint. As per assertions of the plaint, plaintiff was the owner of the house while defendant No. 1 in collusion with defendant No. 2 occupied the same on 6.3.1981 and despite demands of the plaintiff, he did not pay any rent to the plaintiff, therefore the plaintiff filed an application for his ejectment in the Court of Rent Controller Mansehra which was dismissed on the ground that the relationship of land-lord and tenant could not be established whereafter present suit was filed. Defendant No. 1 contested the suit alleging that he has matured the title by adverse possession for more than 12 years, therefore the suit was liable to dismissal. arties led their evidence as they wish||f to adduce. The learned Civil Judge Mansehra on assessment thereof dismissed the suit vide judgment/decree dated 14.11.1989 and appeal thereof met thesame fate from the court of District Judge Mansehra vide judgment/decree dated 29.6.1991. 3. Learned counsel for the petitioner contended that so far the ownership of the house in question is concerned the respondent has explicitly admitted the petitioner to be the owner of the house. He referred to the mortgage/redemption documents exhibited as PW 1/1, PW 2/1, PW 3/1 and stressed that this veiy house with the same boundaries had been mortgaged to different people and got redeemed, as such the findings of the trial court that the boundaries of the house in dispute do not correspond to the boundaries given in the above documents, are not maintainable. This fact was also proved hrough PW 1 to 3, who have categorically stated that the same very house which is in dispute was mortgaged and redeemed through the aforesaid documents and their deposition had not been shattered in the cross examination. Defendant No. 1 has produced no other evidence except for his own statements in which he has admitted that the house belongs to the plaintiff and he entered into it through defendant No. 2 to whom he paid Rs. 15,000/- as mortgage money. The petitioner had been demanding rent and the possession of the house through out, so in such circumstances the possession cannot be termed to be hostile. The lower courts have misread the evidence therefore, their findings are liable to be set aside. 4. Opposing these contentions learned counsel for respondent No. 1 contended that respondent No. 1 has become the owner of the house as admittedly he has never paid any rent to the petitioner hence he being in adverse possession of the house in question has matured the title thus, the suit being time barred deserves to be dismissed. 5. I have given due consideration to the submissions of the learned counsel for the parties and have gone through the record of the case. The plaintiff-petitioner produced PW 1 to 3 to prove bis ownership of the house in question. All the three PWs stated that the house in dispute was mortgaged and later got redeemed by the petitioner from the mortgagees. The last mortgage took place vide Ex. PW 3/1 dated 3.11.1975 and was redeemed vide receipt dated 10.8.1977 which falsifies the respondent's claim that he got the house on mortgage in 1973. It has been acknowledged by the respondent that after about a year from his occupation of the house, petitioner started demanding rent but he did not pay the same alleging that the house was mortgaged with him. 6. Respondent No. 1 in his written statement alleged that he was occupying the house for more than 12 years therefore, the suit is time barred. While appearing in court as a witness, he in the veiy first sentence stated that he was handed over the house by defendant No. 2 on payment of Rs. 15.000/- as mortgage money in 1973. He stated that after about a year petitioner asked him to vacate the ouse but he told him that the house was mortgaged with him therefore, he would not pay any rent. The ownership of the house has been unequivocally admitted by respondent No. 1 to be the property of petitioner, who has been demanding the rent from him. Prior to this suit, an ejectment application was filed on the ground of default in payment of rent before the Rent Controller which was dismissed as the relationship of land-lord and tenant between the parties was not proved. In such circumstances the respondent's possession cannot be said to be hostile, uninterrupted and peaceful. In view of the admission of the defendant No. 1 that the house belongs to petitioner the question of ownership needs no further proof. He- failed to substantiate either of the pleas of adverse possession taken by him in written statement and that of mortgage raised at evidence stage, which even otherwise were inconsistent inter se. Therefore, the findings of the two courts on this score are not maintainable. The plaintiff has abundantly proved that the house belonged to him and it was rented out to the defendant No. 1 through defendant No. 2 and as he never paid any rent therefore, he was within his rights to seek possession of the house alongwith mesne profit. Admittedly the respondent No. 1 took over the house from respondent No. £ on payment of Rs. 15,000/- as mortgage money whereas according to the petitioner, he let out the house to respondent No. 1 through respondent No. 2 on monthly rent of Rs. 200/-. Respondent No. 2 abstained and he was neither produced by the plaintiff nor by the defendant in proof/disproof of their claim. Hence in such circumstances the plaintiff has not been able to establish his entitlement to mesne profit but is entitled to the possession of the house. The findings of both the lower courts not being based on proper appreciation of evidence therefore, are reversed. This revision petition is allowed with costs through-, out. The judgment/decrees of both the courts are set aside. The respondent No. 1 is directed to hand over the possession of the house to the petitioner within 3 months. (M.G.B.) Revision allowed.

PLJ 1996 Peshawar 11 PLJ 1996 Peshawar 11 [Circuit Bench Abbottabad] Present: zeenat khan, J. MUHAMMAD SAEED. and 78 others-Appellants versus COLLECTOR ACQUISITION LAND, MANSEHRA and 3 others-Respondents R.F.A. No. 10/1994, decided on 13-11-1995. Land Acquisition Act, 1894 (I of 1894)- - —S. 18~Land~Acquisition of~Compensation for-Award of~Challenge to~ While giving finding learned Referee Judge did not take into consideration schedule of averages Ex. PW 1/2 nd Ex PW 2/1 vid which Patwari Halqa had calculated Rs. 26,132/- and Rs. 50,421/40 average price of kanal, respectively--Two averages, have been prepared . from sale mutations which were effected in Revenue Record for purpose of construction-Report of Commission was also rejected-Held: Compensation awarded to appellants by Land Acquisition Collector was not adequate-Held further: Keeping in view, location, neighbourhood and potentiality of land and taking into consideration schedule of averages beside Sales Mutation No.' 988 alongwith report of Commission and fix price of land as Rs. 40,000/- per kanal besides other benefits-­ Appeal accepted. [Pp. 12&14] A & B Hqji Ghulam Basit, Advocate for Appellants. Mr. Tahir Hussain Lughmani, AAG for Respondents. Date of hearing: 13-11-1995 judgment This first regular appeal is directed against the order of Additional District Judge/Land Acquisition Collector Mansehra dated 27.3.1994 vide which the reference/objection petition of the appellants for enhancement of the compensation amount against the Award dated 2.11.1986 was dismissed. 2. Facts of the case briefly stated are that land measuring 153 kanals and 3 marlas situated in Revenue's Estate of Ganda Tehsil Mansehra was acquired for the construction of District Jail Mansehra at the rate of Rs. 15,000/- per kanal alongwith 15 percent compulsory acquisition charges. A Notification under Section 4 of the Land Acquisition Act, 1894 was issued by the Collector 2.10.1985 and thereafter the Award was announced by him on 2.11.1986. Aggrieved by the aforesaid Award the appellants filed objection petition under Section 18 of the Act for enhancement of the amount of compensation at rate of Rs. 70,000/- per kanal alongwith other benefits. 3. We have heard the learned counsel for the appellants and the learned Assistant Advocate General for the respondents. While giving finding on issue No.3 the learned Referee Judge did not take into consideration the schedule of averages Ex. PW 1/2 and Ex. PW 2/1, vide which the Patwari Halqa had calculated Rs. 26.132/- and Rs. 50,421/40 the average price of one kanal, respectively. The Referee Judge was of the mind that since these two averages have been prepared from the sale mutations which were effected in the Revenue Record for the purposes of construction, hence, were not relevant. The report of the Commissioner was also rejected on the sole ground that it was prepared while keeping in view the sale of lands for construction of houses etc. despite of the fact that respondents subsequently withdrew from their objection on the report of the Commission. 4. We are not satisfied with the findings of the learned lower Court recorded under issue No. 3. Under the law the consideration in such like circumstances will be "the purpose of sale of land" in comparison to the purpose for which the land was acquired under the Land Acquisition Act. The perusal of the contents of the Notification under Section 4 and the Award announced under the provisions of Land Acquisition Act would show that the land under reference was acquired for the purpose of construction of Jail so the only criteria for assessment of the price of land would be that, only those mutations of sale and other evidence will be considered which will be pertaining to transaction effected for construction purposes. Ex. PW 1/2 is the schedule of average prepared by the Patwari Halqa vide which the average price comes to Rs. 26,132/- per kanal. Similarly Ex. PW 2/1 gives market value of the suit land as Rs. 50,421/40 per kanal. These two averages have been prepared by the Patwari Halqa on the basis of sale mutations which were effected for the purposes of construction of houses etc. There is yet another attested copy of mutation No. 988 attested on 26.3.1985 vide which similar kind of one kanal of land as sold for Rs. 40,000/- in the same village. The court had issued a Commission for the determination of the said purpose and according to its report the market value of one kanal has been assessed as Rs. 40.000/-. It has been averred by the appellants in their reference petition as well as in their evidence that the suit property is situated adjacent to Mansehra Town and near Commercial/Industrial area. In this respect Norullah Khan S.O.K. who appeared as PW-5 in the trial court has brought on record the copies of Asle-Masavi in respect of village Ganda and Mansehra and had tated "that the property under reference situates on the main road which leads to Jallou Shahelia from Mansehra. Village Shahelia is contiguous to the Mansehra Town. The property shown in the Ex. PW 5/6 has been acquired for Small Industrial Estate. The property in reference situates on the right side of said Jallou and Shahelia Road while Industrial area is situated on the left side of the said estate Road". This witness has not been cross examined on these versions by the respondents, meaning thereby that they admit the location of the suit property lying adjacent to the Industrial area and also adjacent to Mansehra Town, as correct. 5. It has been stated in para No. 3 of the award, "The land which is being acquired is of rnaira type. One year average cost of the land comes to Rs. 11,171/20 per kanal. The land being situated near the Mansehra is veiy much valuable. The market value of the land is also very much high than the one year average". Inspite of it the Collector had assessed the market value of the land as Rs. 15,000/- per kanal. He has not taken into consideration the location and potentiality of the land. 6. The price of land has jumped high in the near past. Criterion of one yearly average price, in appropriate cases, was not of any help in determining market value of acquired land. No bar existed for resorting to appointment of Local Commissioner for inspection of spot to evaluate land on consideration of potentialities of land. For determining market value of land, classification or nature of land, could be taken as relevant consideration but that was not the whole truth as area could be "Banjar" but its market value could be tremendously high because of its location, neighbourhood, potentiality and other benefits. 7. In this view of the matter we are inclined to hold that the amount of compensation awarded to the appellants by the Land Acquisition Collector was not adequate. Keeping in view, the location neighbourhood and potentiality of the land and taking into consideration the schedule of averages Ex. PW 1/2 and Ex. PW 2/1 besides sale mutation No. 988 attested on 26.3.1985 alongwith report of the Commission and fix price of land as Rs. 40,000/- per kanal besides other benefits admissible under the law. 8. In the light of the foregoing reasons, this appeal is accepted, the judgment and decree of the Referee Judge is set aside and the award of the Collector is modified in the above terms. Costs to follow the events. (M.K.R.) Appeal accepted.

PLJ 1996 Peshawar 14 PLJ 1996 Peshawar 14 Present: ZENNAT KHAN, J. MST. SLABO BIBI«Petitioner versus GUL REHMAN and 13 others-Respondents Civil Revision No. 119 of 1991, dismissed on 29.10.1995. Inheritance Mutation- —Predecessor of parties-Inheritance of-Mutation of-Challenge to~ Whether predecessor of respondents had died before Isa Khan (Predecessor of parties) and respondents were entitled to 2/7 share. Question of-In absence of any positive evidence pertaining to exact date of death of Shah Farman and presence of evidence of plaintiffs that whereabout of Shah Farman are not know for more than thirty ears, therefore, learned trial court as well as learned appellate court were right in their view that legally Shah Farman was civilly dead on date of nstitution of present suit-Held : Inheritance mutation to extent f Shah Farman is held to be incorrect, void and hence ineffective on right of present plaintiffs-Held Further: Plaintiffs are presumed to be coshareres being legal heirs of Shah Farman and shall be presumed o be in possession of suit property alongwith other co-owners-Petition accordingly dismissed. [P. 18] A, B & C Haji Ghulam Basit, Advocate for petitioners. Mr. Saleh Mehmood Awan, Advocate for respondents. Date of hearing: 29.10.1995. 6. Whether defendants are in adverse possession for more than 12 years. 7. Whether Esa Khan had transferred some land in his life time to compensate the descendants of Shah Farman, if so, its effect? 8. Whether plaintiffs are estopped by their own conduct to sue ? 9. Whether the plaintiffs have instituted this suit to avoid the provisions of Muslim Family Law Ordinance, 1961 ? 10. Whether Shah farman is dead, if so, its effect ? 11. Whether Shah Farman is unheard of, if so, its ef ect ? 12. Whether the pltffs are entiteld to the declaration sought for with perpetual relief as prayed for? - 13. Whether the pltffs are entitled to the possessory relief in the alternative ? 14. Relief. 5. After recording of the evidence the learned trial Court decreed the suit on 28.2.1990. The beneficiary of inheritance mutation No. 941/1 did not prefer any appeal from the judgment and decree of the trial Court but appeal No. 39/13 was lodged by Mst. Salabo Bibi and others, the purchasers from the original vendors i.e. the legal heirs of Isa Khan. To their mis­ fortune the said appeal also did not succeed as the same was dismissed with costs on 11.6.1991, hence the present revision petition. 6. I have heard the learned arguments advanced by the learned counsel for the parties and have perused the record with their assistance. The learned counsel for the petitioners has confined his arguments to issues No. 5, 10 and 11. He submitted that the suit of the plaintiffs was barred by time and that the death of Shah Farman has not been proved in accordance with Articles 123 and 124 of Qunun-e-Shahdat, 1984. He was of the mind that the said Shah Farman had died in the life time of his father Isa Khan and the legal heirs of Shah Farman i.e. the plaintiffs were duly compensated by Isa Khan as he had gifted some property in his life time through gift mutation No. 626 copy of which is Ex : DW1/1. 7. On the other hand, the learned counsel appearing for the respondents has supported the judgment and decree of the trial Court as well as that of appellate Court. 8. It is a fact that inheritance mutation No. 941/1 was entered with Patwari Halqa by Shah Rehman defendant No. 1. In this mutation Shah Farman has been shown as dead prior to the death of Isa han. The case of the plaintiffs in their plaint as well as in their evidence is that Isa Khan had died prior to the death of Shah Farman meaning thereby that Shah Farman was alive at the time of the death of his ather Isa Khan. For the convenient sake Articles 123 and 124 of Qanun-e-Shahdat, 1984 are reproduced as under :- "123. Burden of proving death of person known to have been alive within thirty years. Subject to Article 124, when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it. 124. Burden of proving that person is alive who has not been heard of for seven years. When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of hint if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it." 9. Defendant No. 1 Shah Rehman has failed to prove on record that on the basis of what evidence he got omitted the name of Shah Farman form the inheritance mutation No. 941/1 of Isa Khan. GulRehman while appearing as P.W. 2 in the trial Court has stated that his father Shah Farman was alive at the time of the death of Isa Khan and he participated in the funeral ceremony of his father Isa Khan. This version is duly supported by one Mutawali Khan who appeared as P.W. 3 during the course of trial. They have stated that after the death of Isa Khan, Shah Farman had left for Karachi to earn his livelihood. Subsequently according to P.W. 2 Gul Rehman, Shah Farman was seen by him during the Indo Pak War, of 1971 in Bengal and thereafter his whereabouts were not known. The learned counsel appearing for the petitioners have laid much stress on the words of article 124 of Qanun-e-Shahdat, 1984 (when the question is whether a man is ". alive or dead, and it is proved that he has not been heard of for seven years by those who naturally have heard of him) and has submitted that it were the plaintiffs and even the defendants (legal heirs of Isa Khan) who would have naturally heard of him if he had been alive and therefore, the inheritance mutation No. 941/1 was correctly entered and attested whereby the said Shah Farman was shown as a dead person prior to the time of death of his father Isa Khan. Defendant No. 1 or for that matter the other defendants (the legal heirs of Isa Khan) were not possession of any documentary or oral evidence showing the exact date of the death of Shah Farman. The plaintiffs, have averred in their evidence that Shah Farman was alive at the time of the death of his father and subsequent to it he went to Karachi and Bengal and since then his whereabouts are not known and they have not heard of him for the last seven years. Even defendant No. 1 while appearing as D.W. 3 has stated in examination-in-chief that 7 do not know about the whereabouts of Shah Farman who is not known for the last 40 years." While he was subjected to cross-examination he has stated the "All the mutations were got entered by me regarding inheritance and sale etc., Shah Farman was my elder brother and I do not know about the whereabouts of Shah Farman since the last 40 years". In the absence of any positive evidence pertaining to the exact date of the death of Shah Farman and in presence of evidence of the plaintiffs that whereabouts of Shah Farman are not known for more than thirty years, therefore, the learned trial Court as well as the learned appellate Court were right in their view that legally Shah Farman was civilly dead on the date of institution of the present suit. In the present case no other legal mode except through the institution of the present suit, was adhered to by the parties, in order to ascertain the death of Shah Farman. "! The inheritance mutation No. 941/1 of Isa Khan from which the name of Shah Farman was omitted was not entered and attested on the basis of any cogent evidence, therefore, the inheritance mutation No. 941/1 to the extent of Shah Farman is held to be incorrect, void and hence ineffective on the rights of the present plaintiffs. It has not been shown during the urse of the trial that the revenue Officer before the attestation of the said inheritance mutation had ever conducted inquiry about the death of Shah Farman. 10. When the mutation is not, legal and proper, the entire structure uilt on it should crumble and the limitation will not be hurdled in the way f the plaintiffs. In the circumstances of the case the plaintiffs e presumed o be co-shares being the legal heirs of Shah Farman and shall be presumed o be in possession of the suit properly alongwith the other co-owners. 11. As far as the gift mutation No. 626 on benalf of Isa Khan in avour of the present plaintiff-respondents is concerned, it does not suggest hat Isa Khan had gifted this property to donees as ompensation being the legal heirs of Shah Farman presuming him to be dead in the life time of Isa Khan. Under the Muhammadan Law person can gift his property to any person as he likes. . 12. In the light of foregoing discussion, I am in agreement with the findings arrived at the two Courts below and finding no force in the present revision petition, dismiss the same leaving the parties to bear their own costs. (B.T.) ' Petition dismissed.

PLJ 1996 Peshawar 19 PLJ 1996 Peshawar 19 Present: jawaid nawaz khan gandapur, J. WARESHMIN KHAN-Petitioner versus UMAR DARAZ KHAN ETC.-Respondents Civil Revision No. 103 of 1994, decided on 20-11-1995, Civil Procedure Code, 1908 (Act V of 1908)-- —-O.VI, R. 17--Pleadings~Amendment of--Principle of-That power to permit amendment is discretionary with court, but discretion is to be exercised in accordance with judicial principle i.e. to avoid multiplicity f suit to advance substantial justice; and to preserve rights of litigants-­ Held : Power to amend written statement can only be refused where application is based on mala fides. [P. 22] A & B Haji Saadullah Khan Mian Khel, Advocate for Petitioner. Muhammad Khan Khahwani, Advocate, for Respondent Date of hearing: 20-11-1995 judgment Jawaid Nawaz Khan Gandapur, J.-Respondents (plaintiffs) Umar Oaraz etc. had filed a suit against the petitioner (defendant), Wareshmin etc. for declaration to the effect that they are entitled to irrigate their land bearing Khasra No. 5408 measuring 85 kanals 11 marks, situated in Mauza Tattah, Tehsil and District Tank through the water/ spring, the details of which has already been giveivin the heading of the plaint, that in the "Riwajat-e-Aabpashi" for the year 1966-67 no entry, what-so-ever, has been made in this respect and that, therefore, the present suit was set on foot for the correction of the same. 2. The suit was contested and the pleadings of the parties were reduced to as many as nine issues. 3. After recording the evidence, which the parties wished to produce and after hearing the learned counsel for the parties, the trial court (Civil Judge First Class, D.I. Khan Camp at Tank) vide: his judgment dated 27-6- 1990, in Civil Suit No. 60/1 of 196, granted a decree as prayed for to the respondents (plaintiffs). 4. Dissatisfied with the verdict of the trial court the petitioner (defendant) filed an appeal in the Court of District Judge, D.I. Khan which was later on > < uasferred to the court of District Judge Tank for disposal. 5. The appeal was still pending when in the meantime the petitioner (defendant) submitted an application before the District Judge on 23-1-1993 wherein he prayed that he be allowed to amend his written statement to the extent of taking the pleas of (i) adverse possession and (ii) estoppel. This application was contested by the respondents (plaintiffs) who filed their replication and after hearing the parties the lower appellate court (District Judge Tank) rejected the said application, filed by the petitioner (defendant) for the amendment of the written statement on the following ground: (i) that the petitioners (defendants) had already taken the plea of res judicata on the basis of the decision of a previous suit regarding the property in question and that in this respect a proper issue was framed which was decided against them by the trial court and, therefore, --•- there is no need to take the plea of estoppel; and (ii) that the petitioners (defendants) did not claim the ownership of the suit spring but had taken the plea that - they too are entitled to irrigate their land through the same and since the petitioners(defendants), by the permission of the court to amend the written statement want to raise the plea of adverse possession regarding the suit spring, therefore, they want to take a different stand as compared to the stand taken by them in the written statement and as such they cannot be allowed to do so. 6. The petitioner (defendant) feeling aggrieved by the order of the District Judge has assailed his finding before this Court by filing this revision petition for the redress of his grievance. 7. Haji Saadullah Khan Miankhel, advocate learned counsel for the petitioner (defendant) and Mr. Muhammad Khan Khakwani, advocate learned counsel for the respondents (plaintiffs) present and heard. I have also gone through the record of the case with some degree of care. ' 8. It may be stated at the very out set that the only question for examination/determination in the present revision petition is as to whether, in the facts and the circumstances of the case in hand, the petitioner (defendant) should have been permitted by the lower appellate court to amend his/their written statement so as to raise the pleas of adverse possession and estoppel. that the Supreme Court of Pakistan had been taking a liberal view for allowing the amendment of the plaint. And that this would equally apply to the amendment of the other pleadings. In this respect a reference was made to the following cases :-- (1) Ghulam Nabi vs. Sardar Nazir Ahmad 1985 S.C.M.R. 824.; (2) Ali Hussain vs. Late All Ahmad Khan Warsi, P.L.D. 1984 S.C. 1; (3) Manzoor Hussain vs. Sajawat, 1983 S.C.M.B. 465; (4) Muhammad Ismail vs. Muhammad Sarwar 1980 S.C M.R. 254; (5) Secretary to Government (West Pakistan) vs. Kazi Abdu Kafil, P.L.D. 1978 S.C. 264; (6) Syed Akhlaque Hussain vs. WAPDA, Lahore , 1977 S.C.M.R.284; (7) Zubeda Begum vs. Wait Muhammad Khan, 1974 S.C.M.R. 181; (8) National Shipping Corporation vs. A.R. Muhammad Siddik, 1974 S.C.M.R. 131; (9) Bashir Ahmad Khan vs. Qaiser Ali Khan, P.L.D. 1973 S.C 507; (10) Ahmad Din vs. Muhammad Shaft, P.L.D. 1971 S.C. 762; (11) Sultan Ahmad and another vs. Sahu and others, 1969 S.C.M.R.277; 13. Needless to mention that the power to permit amendment is discretionary with the court, but the discretion is to be exercised in accordance with judicial principle which are to the following ffect :-- (i) to avoid multiplicity of suit; (ii) to advance substantial justice; and (iii) to preserve the rights of the litigants. 14. In other words, the power to amend the written statement can only be refused where the application is based on mala fides. The basic rule, no doubt, is that the defendants should not be allowed to make a new case and that the amendment of the written statement is ordinarily not to be allowed where the plaintiff has closed his evidence, however, the same can be allowed if the defendant has acted in good faith. In case the defendant is allowed to amend the written statement then the plaintiffs must also be given an opportunity to meet such an amendment i.e., by allowing them to file replication to such an amendment or even by leading further evidence, if necessary. 14. In my opinion, in the circumstances of the present case, the amendment of the written statement would preserve the rights of litigants, avoid multiplicity of proceedings and advance the interest of substantial justice. 15. Accordingly, this revision petition is accepted and the impugned judgment of the District Judge is set aside. The application submitted by the petitioners (defendants) in the lower appellate court for the amendment of written statement is allowed, subject of-course to payment of costs of Rs. 3,000/- to be deposited within a period of two months. 16. The case is remanded to the trial court with the direction that after the petitioner (defendant) has filed his amended written statement, the respondents (plaintiffs) if they so desire, be allowed to file eplication. Thereafter fresh issues be framed and the parties be given an opportunity of producing evidence, if they wish to do so, in support of their cases and then to decide the case on merits in accordance with law. 17. The parties are directed to appear before the trial court on 20-12-1995 positively for further proceedings. The office is directed to send the record to the trial court at once. (M.M.A) Revision accepted.

PLJ 1996 Peshawar 23 PLJ 1996 Peshawar 23 Present: MIAN MUHAMMAD AJMAL, J. M/S SARTAJ FLOUR MILLS-Petitioner versus AHMAD DIN and two others-Respondents W.P. No. 112/95 dismissed on 4-12-1995. Constitution of Pakistan , 1973- Art. 199 read with Industrial Relations Ordinance, 1969 section 25-A, Payment of Wages Act, 1936, section 22 and Standing Orders Ordinance, Order 12 and 15~Employee of Mills as a Fitter-Dismissal of-Grievance petition-Acceptance of-Appeal to-Dismissal of-Constitutional appeal- Relationship of employer and employee has been properly determined by Labour Court-Authority has no jurisdiction to determine uestion of dismissal from.service-Actual number of persons employed in Mills was not brought on record-Held: Respondents No. 2 and 3 have competentlyexercised their jurisdiction, hence, jurisdiction under Article 199 cannot be allowed to be used as right of second appeal-Petitioner dismissed. [Pp. 25 & 27] A, B & C Mr. Abdul Rehman Qadir, Advocate for Petitioner. Date of hearing: 4-12-1995 . order M/s Sartaj Flour Mills (Pvt) Ltd. through its Manager petitioner herein, in this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has sought declaration that the judgments/decrees dated 27.2.1994 and 6.7.1995 passed by the learned Presiding Officer, Labour Court Haripur and the Chairman, Labour Appellate Tribunal NWFP, Peshawar to the illegal, without lawful authority and of no legal effect and as such petition of respondent No. 1 filed under Section 25-A of Industrial Relations Ordinance, 1969 be dismissed. 2. As per assertions of the writ petition Ahmed Din respondent No. 1 was employed in the petitioner mill as fitter on 2.5.1983. He went on leave on 30.8.1992 for 4 days and thereafter did not return to perform his duties. He was repeatedly reminded to resume his duties but he abstained, therefore he was dismissed by the petitioner on j>. 12.1992. The respondent No. 1 thereafter submitted his resignation on 28.12.1992 which was not accepted. The respondent No. 1 served the petitioner mill with a grievance notice under section 25-A of the I.R.O 1969 and after failing to get any response to the said notice filed a grievance petition under Section 25-A of the I.R.O 1969 before the Labour Court Haripur, respondent No. 2. The parties adduced their evidence, on the assessment whereof the Labour Court accepted the grievance petition, set aside the dismissal order and accepted the resignation w.e.f. 30.8.1992 and also held respondent No. 1 entitled to the payment of gratuity for the period from 20.5.1983 to 30.8.1992 after detecting the pay of notice period of one month. The petitioner feeling aggrieved of the said order filed an appeal before the Labour Appellate Tribunal NWFP, Peshawar which was dismissed by the learned Chairman, Labour Appellate Tribunal vide his order dated 6.7.1995 which are impugned herein. 3. Learned counsel for the petitioner contended that both the courts below have not properly appreciated the evidence on the record and the law applicable to the facts of the case. He submitted that the respondent No. 1 was not a work-man within the meaning of Section 2 (XXVIII) of the I.R.O hence he could not invoke the jurisdiction of the Labour Court. He argued that for the recovery of gratuity separate forum has been provided under the payment of Wages Act, 1936, and its Section 22 exclude the jurisdiction of other courts to entertain such claims. He contended that the number of Workers employed in the Mill was less than 50 therefore, in view of second provisb of Section 1 (4) of the Ordinance No. VI of 1968, clause (6) of Standing Orders 12 and 15 shall not apply to it. Hence the orders passed by respondents No. 2 and 3 are illegal and without lawful authority. 4. We have given due consideration to the' submissions of the learned counsel and have perused the available record. The points agitated before us are almost the same which were raised before respondents 2 and 3, which have appropriately been dealt with and repelled by them. According to the definition of worker and workman as given in clause (XXVIII)) of Section 2 of tne I.R.O, any person employed in an establishment or industry for hire or reward in an establishment or industry for hire or reward either directly or through a contractor with express or implied terms, and for the purpose of any proceedings under this Ordinance in relation to ah industrial dispute including a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from employment in connection with or as a sequence of that dispute or whose dismissal, discharge retrenchment lay off or removal has led to that dispute. Admittedly respondent No. 1 was employed as fitter in the petitioner Mills who was ismissed vide letter dated 5.12.1992, which was impugned in petition under Section 25-A of the I.R.O. 1969 before the Labour Court . Since he qualified the conditions of a workman as envisaged in the aforesaid definition, therefore he could competently invoke the jurisdiction of Labour Court . Relationship of employer and employee being a question of fact has been properly determined by the Labour Court and cannot be allowed to be reopened in writ jurisdiction. 5. The 'Authority' appointed under sub-section (1) of 15 of the Payment of Wages Act, 1936 can adjudicate claims arising out of deductions from the wages or noh payment of dues relating to provident fund or gratuity payable under any law or delay in the payment of wages but it has no jurisdiction to determine the question of dismissal from service, for which jurisdiction of the Labour Court had to be invoked nder Section 25-A of the I.R.O of 1969. Under section 17 of the payment of Wages Act, appeal lies before the Labour Court constituted under the I.R.O against the order of the Authority, therefore the bar as embodied in section 22 of the Act would not be applicable to Labour Court but to Civil Court to entertain any suit for the recovery of wages or any deductions from the wages. Respondents No. 2 and 3 after following the proper procedure and hearing both the parties have competently exercised their jurisdiction as conferred by the I.R.O. and no illegality or jurisdictional infirmity could be pointed out, hence jurisdiction under Article 199 of the Constitution of Pakistan cannot be allowed to be used as right of second appeal when no such right is permissible under the law. 6. The learned Labour Court regarding the number of workman and applicability of Section 1 (4) of Ordinance No. VI of 1968 observed as under: "It is provided that an establishment employing less than fifty workmen is exempt from the provisions of Standing Order 12 (6) and (8) pertaining to the payment of gratuity but yet there is no reliable evidence on record to hold that the respondent Sartaj Flour Mills, did not employ fifty or more workers on and any during the preceding twelve months. Moreso, this plea is also not taken in the written statement by the respondent establishment The only evidence on the point is the solitary statement of Ghulam Safdar (RW 1) who produced self prepared attendance register for the year 1992 and stated that there were employed not more than twenty seven workers. This statement of the Manager of the respondent establishment was not sufficient to establish that there had not been employed fifty 'ok more workmen on any day during the preceding twelve months. The respondent was required to give details of the workman, working on the plant and to have produced some in­ dependent evidence in support of its plea. Petitioner in the cross examination had however, stated that about fifty persons were employed in the Flour Mills. In the stated circumstances, the . contention of the learned counsel cannot prevail and I hold that the respondent establishment is not exempt from provisions of Standing Orders 12 (6) and (8)". While the learned Chairman Labour Appellate Tribunal dealt with this point in the following terms: "The lack of Labour Court jurisdiction in the matter was also agitated as, ccording to the learned counsel, the number of employees in the mill was less than 50 and, therefore, under the second proviso to section 1(4) of the S.O.O., the Labour Court was not competent to entertain a laim of gratuity against such a Mill. This objection relates to a question of fact and should have been raised in the written statement so that the petitioner had its knowledge and had an opportunity £o adduce vidence on this point But the written statement reveals that such an objection has not been taken therein, therefore on this count alone the plea of the appellant's advocate is not acceptable. Moreover, the ppellant has also not brought reliable documentary evidence on record to prove this fact as excepting bare statement there is no other credit Worthy document from the Mill record in support of this objection. He learned Labour Court did take note of the objection and has correctly discarded it". The actual number of persons employed in the Mills was to be given by the petitioners which they failed to bring on record through any documentary evidence, hence no exception to the aforementioned findings can be taken. In view of the above, this writ petition being devoid of any merits is dismissed in limine. MYFK Petition dismissed.

PLJ 1996 Peshawar 27 (D PLJ 1996 Peshawar 27 (D.I. Khan Bench) Present: sardar muhammad raza, J. FAZAR ALI and others-Petitioners versus GHULAM ALI & others-Respondents C.R. No. 27 of 1994, accepted on 26.3.1995. Possession- —Suit for possession-Decreed by trial court and upheld in appeal-Whether co-sharer can be dispossessed irrespective of fact that she never claimed as such in her written statement-Question of-Courts below have come to conclusion and rightly so that Mst. Sameena Yasmeen was co-sharer in possession in house, she could not have been ejected simply because she and her husband happened to deny title of plaintiff-Held: Plaintiff cannot acquire possession without partition-Petition accepted-- [Pp. 2S&29] A & B Mr. H. Zafar Iqbal Khan, Advocate for Petitioners. Mr. Muhammad Rafique Khan, Advocate for Respondents Date of hearing: 26,03.1995. judgment The present house measuring about five marlas detailed in the original suit and situated within the limits of Lakki Meena Khel seems originally to have been owned by Shah Wali Khan who had two sons Ghulam Ali Khan and Akbar Ali Khan. Ghulam Ali Khan is alive while Akbar Ali Khan is dead and is survived by Mst. Bibi Zahida widow, Rashid " Latif, Anawr Jehangir, sons ; Mst. Samina Yasmeen, Mst. Zubaida, Mst. Fehmeeda, Mst. Jameela, Mst. Farzana, Mst. Nelufar and Mst. Arjumand, the daughters. This brings the situation down to the fact that Ghulam Ali Khan and all the heirs of Akbar Ali Khan are otherwise co-sharers. 2. Fazar Ali Khan son of Sultan Ali Khan, admittedly, is residing in the suit house alongwith his family that consisted of a wife Mst. Sameena 28 Pesh. Yasmeen, a daughter and a son. Mst. Sameena Yasmeen is he same lady who is the daughter of Akbar Ali Khan and happened to be married to Fazar All Khan. In the year 1988 Ghulam Ali Khan brought a suit against Fazar Ali Khan and his family for as well as ossession of the suit house on the that he alongwith the legal heirs of Akbar Ali Khan (Proforma defendants) including Mst. Sameena Yasmeen, was the owner of the house who had inducted Fazar Ali Khan iving him permissive possession for a short time till the latter made his own had inducted Fazar Ali Khan giving him permissive possession for a short time till the latter made his own arrangement but azar Ali Khan refused to vacate the house, started claiming title thereto and hence the suit. That the share of Mst. Sameena Yasmeen was transferred by her through an agreement deed in favour of promforma efendants Nos. 5 and 6, i.e. her two brothers. 3. Mst. Sameena Yasmeen daughter to Akbar Ali Khan though originally arrayed as proforma defendant, was subsequently transposed as actual defendant. Both the husband and wife contested the suit of Ghulam Ali Khan and both claimed that the house originally belonged to one Ahmad Ali from whom, through a registered deed,' it was purchased by Mehboob Ali Khan and Liaqat Ali Khan and that Fazar Ali Khan derived title from Mehboob Ali Khan. That he was never inducted by Ghulam Ali Khan and that he was occupying the same in his own right. Both the learned lower Courts of Civil Judge and Additional District Judge Lakki Marwat vide their judgments dated 10.6.1990 and 9/12/1993 respectively held the plaintiff and proforma-defendants to be the owners of the suit house and granted the decree for declaration as well as possession against Fazar Ali Khan etc; the real defendants. Fazar Ali Khan has challenged such concurrent findings through the present revision. 4. Neither the plaintiff-respondent has proved on record that Mst. Sameena Yasmeen had transferred her share in favour of her brothers nor the defendant-petitioner Fazar Ali Khan has proved in any anner that the house was purchased by him form Mehboob Ali Khan. The only thing that stands proved on record is that the house belonged to Ghulam Ali Khan and Akbar Ali Khan and that all the heirs of Akbar Ah' are co-sharers alongwith Ghulam Ali Khan including Mst. Sameena Yasmeen, the defendant whbse share comes to 7/160. When once the two Courts had come to the conclusion and rightly so that Mst Sameena Yasmeen was a co-sharer in possession in the house, she could not have been ejected simply because she and her husband happened to deny the title of the plaintiff. Such argument applies and such behaviour is meted out to a tenant alone who poses hostile title against the real owner/landlord. When once the Courts below had determined Mst. Sameena Yasmeen to be a co-sharer, she could never be ejected without partition. The decree requires to be modified to that effect 6. The itemed counsel for the respondents claimed that such title or co-sharership was never claimed by the lady in her written statement and hence she should not he given the above protection. This argument is not very plausible because, regardless of her pleas taken, when once she is concurrently determined to be a co-sharer, the order of dis-possession cannot be passed against her until and unless a partition of the house takes place. The two Courts below ought to have themselves protected the possessory rights of a co-sharer in possession. , 7. The learned counsel for the respondents also objected to the nonfixation of the Court fees. The objection is valid because the value of the subject matter as per objection of the petitioner was already fixed at Rs. 27,000/- on which ad valores Court fee of Rs. 2100/- was affixed by the respondent-plaintiff. Under Article 13-A of Schedule I to the Court Fees Act, the fee leviable on a memorandum of appeal was liable to be affixed on the present revision being filed against the appellate decree. This fee shall have to be affixed by the present petitioner on the memorandum of revision petition. 8. Consequently, upon what has been arrived at, the findings of the two Courts below are upheld qua the declaratory aspect, while the same are set aside qua the decree for possession. The plaintiffs and proforma defendants are declared to be the owners/co-sharers in the suit house but cannot acquire possession of the house without partition because it is occupied by Mst. Sameena Yasmeen, a co-sharer. The petitioner Fazar All Khan shall affix a Court fee of Rs. 2100/- on the memorandum of revision petition within thiity days from today failing which the instant revision petition shall stand dismissed with costs. Petition accepted.

PLJ 1996 Peshawar 29 PLJ 1996 Peshawar 29 Present: JAWAID NAWAZ KHAN GANDAPUR, J. Lt. Col (Retd) MUKHTAR AHMAD USMANI-Appellant versus BALMIKI ETC.-Respondents Specific Relief Act, 1877 (IX of 1877)-- —-Ss. 54 & 42 read with S. 14 of Evacuee Trust Properties (Management and Disposal) Act, 1976-Suit for possession and Permanent Injunction of Balmiki Mandar-Judgment & Decree passed by Trial Court on oath on Holy Quran set aside in appeal and case remanded for trial on merits- Challenge to-Any dispute in respect of property, like suit property, would be governed by Act XIII of 1975 i.e. Evacuee Trust Properties (Management and Disposal) Act, 1975—As and when question arises as to whether evacuee property is attached to charitable, religious or educational trust or institution or ot, shall be decided by Chairman whose decision shall be final and shall not be called in question in any court-Held: Jurisdiction of Civil Court is barred u/S 14 of said Act- Held further: Order of trial ourt as well as appellate court are without jurisdiction-Appeal accepted. [Pp. 32 & 33] A, B & C Malik Fazal Hussain, Advocate for Appellant. Malik Manzoor Hussain, Advocate for respondent No. 1. Mr. Muhammad Sarfaraz Khan, Advocate for Respondent No. 2. Date of hearing: 23.5.1995. judgment Initially, Bal Miki Sabha, plaintiff/respondent, thorough Sham Lai S/O Jailal, aged about 35 years, caste Balmiki Hindu, resident of Quarter No. l-B/4, Miani Line, Murree Road, Abbottabad instituted the present suit, against Haji Abdul Ghafoor s/o Abdul Rauf, resident of Mohallah Noor-ud- Din, Abbottabad, for permanent injunction and prayed that the defendant/petitioner be restrained from taking the possession of the suit property, a Hindu Mandar, and from interfering with the. worship of the Hindus. In addition, the plaintiff also prayed that a decree for the possession of the "Balmiki Hindu Mandar", the suit property, fully detailed in the heading of the plaint, be granted to him against the defendant. 2. The brief facts, as disclosed in the plaint, are that the Mandar (temple) in suit was being used by the Balmiki Hindus much before the partition of this sub-continent and that even after the partition it was used for the said purpose for a considerable long time, that few years before the institution of the suit in hand, the father of the defendant took the possession of the Mandar in question forcibly and started using it for his personal use, that as a result of that the plaintiff i.e., Balmiki Sabha (Hindu Community) raised lot of hue and cry and also approached the Government and in this respect lodged strong protest. Resultantly the father of the defendant vacated the suit premises. That after his death, his son, defendant (Haji Abdul Ghafoor) once again entered into forcible possession of the temple and therefore, the ^plaintiff/respondent approached the District Administration, Abbottabad for the redress of their grievance. The District Administration, vide: Deputy Commissioner's letter No. 34/20rPoll: 2731/AG dated 29.5.1982, however, directed the plaintiff/respondent to approach the Civil Court for the redress of his grievance. Consequently the present suit was set on foot. 3. Haji Abdul Ghafoor contested the suit and raised quite a few legal as well as factual objections in his written statement that the suit property was in the possession of defendant's father for a period of more than 8 years and that the "Bal Miki Sabha" did not exist in Abbottabad and that they had nothing to 'lo with the property in question. It was further alleged that the present suit was instituted by the plaintiff because of some personal grudge. 4. The trial Court reduced the pleadings of the parties in to the following issues •:--. 1. Whether plaintiff has got any cause of action ? 2. Whether suit is not competent in its present form as instituted by an unauthorised person ? 3. 4. 5. 6. 7. 8. Whether suit is within time ? Whether suit is hit by the principle of resjudicata ? Whether the court has got jurisdiction ? Whether the suit is maintainable in its present form ? Whether suit is correctly valued for the purpose of Court fee and jurisdiction ? Whether defendant has matured his title over the suit property through adverse possession for more than 12 years? 9. Whether suit is bad for non j oinder of necessary parties ? 10. Whether plaintiff has got no locus standi ? 11. Whether suit is malafide, hence in case of its dismissal defendant would be entitled to the special compensatory Cost 12. Whether plaintiff is entitled to the grant of permanent injunction restraining the • defendant from interference with the suit property ? 13. Whether plaintiff is entitled to possession of suit property ? 14. Relief. 5. It may be stated here that defendant Haji Abdul Ghafoor died and his heirs i.e., (1) Mst. Anwar Jan widow, (2) Col. Zahur-ul-Haq Usmani, (3) Lt. Col. Mukhtiar Ahmad Usmani sons and (4) Mst. Rashida Ghafoor daughter, were impleaded as defendants vide : the trial court order dated 8.11.1989. 6. The parties produced evidence for and against in support of their respect of their respective cases. However, the case was not decided on merits because the respondent/plaintiff (No. 1) offered the petitionerdefendant (Lt. Col. Mukhtiar Ahmad Usmani) to take oath and to state on the Holy Quran that the suit property was not a Hindu Temple (a place for the worship of Balmiki Hindu Sabha) and secondly that Haji Abdul Ghafur defendant (since dead) had not obtained its possession forcibly, that if the 12. Similarly the jurisdiction of the Civil Court is barred u/S. 14 of the said Act, which is to the following effect :— "S. 14 Bar of jurisdiction :-Save as otherwise provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the Federal Government or an officer appointed under this Act is empowered under this Act to determine, and no injunction, process or order shall be granted or issued by any Court or other authority in respect of any action taken or to be taken in exercise of any power conferred by or under this Act. 13. In the circumstances, I am of the view that the Civil Court (trial Court) had no jurisdiction to entertain the suit in hand and that therefore, the question of deciding the case either on oath or on merits, does not arise at all. Similarly the subsequent order of the lower Appellate Court vide: which he has remanded the case to the trial Court, for taking further proceedings, in accordance with his order dated 8.6.1992, is also coram non judice. 14. Since, in my opinion, the order of the trial Court as well as the appellate Court are without jurisdiction, this revision petition is accepted. The orders of both the lower Courts are set aside and the plaint is returned to the plaintiff/respondent for presenting the same before a proper forum for the redress of his grievance. Cost to follow the events. B.T. Appeal accepted.

PLJ 1996 Peshawar 33 [D PLJ 1996 Peshawar 33 [D.I. Khan Bench] Present: jawaid nawaz khan gandapur, J. GHULAM SHABBIR-Petitioner versus MUHAMMAD KHAN and 2 others-Respondents Civil Revision Petition No. 137 of 1995, dismissed on 21.11.1995. Civil Procedure Code, 1908 (Act V of 1908)-- —-O.-VII R. 11 (d) read with NWFP Pre-emption Act, 1987, Sections 13 and 24-Pre-emption-Suit for-Rejection of plaint-Challenge to-Failure to deposit of l/3rd of whole amount in cash and 2/3rd as bank guarantee under section 24 of Act entails dismissal of suit and has effect of barring fresh suit—Dismissal of suit under section 24 of Act finally determines rights of parties subject to appeal or revision-Held: Two courts below have committed no illegality or material irregularity-Petition dismissed. [P.341A&B PLD 1993 SC 204 re/. Mr. Rustam Khan Kundi, Advocate, for Petitioner. Date of hearing: 21.11.1995. order 2. The petitioner/plaintiff had instituted a suit for the possession of land through pre-emption, in the first instance, on 28-7-1994, in the Court of Civil Judge-I, D.I. Khan. The trial court directed the petitioner/plaintiff to deposit the pre-emption amount before 8-9-1994 Since the petitioner/plaintiff failed to deposit the pre-emption amount, therefore, his suit (No. 453/1 of 1994) (Ghulam Shabbir vs. Muhammad etc.) was dismissed by the Civil Judge-I, D.I. Khan on 8-9-1994. The petitioner/plaintiff instituted an other suit, on the same ground, which was contested by the respondent/defendants on various ground legal as well as factual. This time the Senior Civil Judge, Tank Camp at D.I. Khan vide his order dated 20-7-1995 rejected the plaint under Order 7 Rule ll(d) of the C.P.C. and as such the petitioner was non-suited. Not satisfied with .the said order of the Senior Civil Judge, the petitioner assailed his findings before the District Judge, ank Camp, at D.I. Khan who vide: his judgment/decree dated 10-9-1995 dismissed the appeal in-limine. Hence this revision petition. 5. A bare reading thereof makes it amply clear that the plaintiff-pref-npi/jr tan r-,yke Talb-i-Khusumat i.e., enforcement right of pre-emption, nnb orcc and in tbe absence of any definite/specific provision allowing a ! :-e':-rd to!';-'- -Khiwma! ., If tbe JurJtatioa prescribed U/S. 31 of the Act ! ;>-trraitS; this right cannot be imported into it. The substitution of the j reject-Oil of the plaint in the Repealed Act, through dismissal of the suit in i the new Act Is suggestive of the fact that the vailurs to deposit the amount of• \ /.";.;•'] m caah &.,.d 2/.°jj.v. aa bar.'H fyiurE'ntec vr the whole amount in cash I t-'.,v : l : i ' 4; s> iisji'. o ibe &yt. 9^ioru;! in ':or.ju»?tion. there is no doubt left that the <. dismissal of the suit U/S, 24 of the Act ibid finally determines the rights : t!if parties albeit, subject of course to the decision of the appeal revision (i'aiji J:mj/ Gut Khan vs. Haj: Paqir Mu'wrnmad and 4 others) reported as r.L.D.lSj3S,C. 204, 6. Resvltantly, I ara cf the view, that the courts below have committed no illegality or material irregularity and, therefore, interference by this court is not war; anted, the instant revision petition is devoid of any su,bsta;>ce %nd is aeeord-agly dlsinisE'ed in limifie. No orders as to costs, CIS) . Petition dismissed.